Magistrate rules Jameson Timba’s residence not a public space, acquits 12

HARARE – Citizens Coalition for Change (CCC) interim leader and former senator Jameson Timba, along with 65 other party activists, will remain in jail after magistrate Collet Ncube ruled that they have a case to answer regarding allegations of disorderly conduct.

However, 12 individuals, including Timba’s son Shaun, were set free after the magistrate determined that they were caught in a dragnet arrest.

The group was arrested on June 16 for allegedly participating in an unlawful gathering and disorderly conduct. While all 78 individuals were found not guilty and acquitted of disorderly conduct, the magistrate decided that Timba and 65 others must proceed with their defence.

Shaun Timba had filed a separate application for discharge, arguing that the evidence presented did not warrant a defense. He claimed he had gone to deliver a Father’s Day gift to his father.

Magistrate Colleta Ncube ruled in favour of Shaun.

“The court will take judicial notice that indeed it was Father’s Day. None of the witnesses stated that the applicant (Shaun) was in the premises. The fact that Timba is the applicant’s father and that it was Father’s Day adds credibility to the applicant’s submissions,” the magistrate ruled.

“Clearly, there is no evidence placed before this court to prove an element of an offense by the applicant. In this court’s considered view, there is no evidence that a reasonable court could convict, and the applicant is discharged at the close of the State’s case.”

Timba and other activists had sought discharge, arguing that they could not be charged with disorderly conduct or participating in an unlawful gathering since they were not in a public space. The magistrate noted that the state failed to prove this.

“This court is satisfied that the gathering was inside the premises, not outside. This is contrary to the evidence by the State that it was outside No’ 6 Downroad. Now, what is public space?” Ncube asked before reading out the definition.

She then ruled: “Having defined public space, this court’s view is that Timba’s residence is not a public space, and the charge falls off as it cannot stand. There’s no evidence to prove essential elements of an offense as alleged by the State.

“The accused cannot be placed on their discharge on the count of disorderly conduct despite that there was pandemonium. I pronounce that they are all not guilty and acquitted on the count of disorderly conduct.”

Regarding the count of participating in an unlawful gathering, the magistrate said: “Taking into account that it was a gathering which attracted people who did not reside at the premises, also considering that there was pandemonium, it creates a prima facie case.

“However, this court is cautious that there are a few whose defense was very clear in this case. Combination of facts in this court’s view convinces this court that some might have been caught in crossfire and were not part of the gathering.”

She went on to acquit 11 individuals, stating:

“The confirmation by the police that there were some people on the road adds credibility to these people’s defense, and these are Resca Munetsi, who was collecting money in Avondale, Violet Chitsindi, who had visited a friend, Simon Size, who was looking for peace jobs, Calvin Charumapasi, a vendor, Redeem Mandizvidza, who was distributing fliers, Tatenda Mukwembi, a driver, Tawanda Mukucha, Prince Madhena, who was at the shops, Wisdom Nyama, who was passing by, Tobias Mangwayana, a vendor, and Lucia Kandemiiri, a tenant at Timba’s residence.

“The finding of this court is that these cannot be placed on their defence in count, and accordingly, they are found not guilty and acquitted in the first count. The balance will proceed to the defence case.”