Bulawayo High Court judge, Justice Thompson Mabhikwa has granted Ntabazinduna Chief Felix Nhlanhlayamangwe Ndiweni temporary freedom after granting him bail.
He released him on $500 bail pending appeal for a case where he was convicted of malicious damage to property.
Chief Ndiweni is currently serving an 18 months effective jail term after Bulawayo magistrate Gladmore Mushowe handed her a 24-month sentence. Mushowe suspended six months on condition of good behaviour.
As part of his bail conditions, Justice Mabhikwa ordered that Chief Ndiweni resides at the Ndiweni residence in Ntabazinduna and report to the Ntabazinduna police station every Friday.
The Judge ruled that the court does not seek satisfaction as to whether the applicant’s appeal would succeed but requires to be convinced that the appeal may succeed.
Justice Mabhikwa added that the court also seeks to be convinced that the applicant, if granted bail may not abscond court thereby obstructing the course of justice.
He said every person who would have been convicted has the right to test the ruling given against him and whether the appeal succeeds or not is a separate issue altogether.
“The State failed to argue on whether the applicant may abscond court or not. Looking at the record of the applicant, he religiously attended every court session for almost two years until conviction and sentence. According to his defense counsel he even went out of his way to make sure his subjects, who are co-accused, also got transportation to court to stand trial,” said Justice Mabhikwa.
Chief Ndiweni’s lawyer Professor Welshman Ncube of Mathonsi Ncube Law Chambers argued that they are not only against the stance taken by the state but are unanimously against the custodial sentence imposed on the accused chief.
“The State had initially argued that a sentence of community service would meet justice for the offense committed but later on they changed to a custodial sentence. This is contrary to the initial submission made to the court and even contrary to their conscience,” said Prof Ncube.
Prof Ncube further argued that Chief Ndiweni acted as per guidance of the Traditional leaders Act and the Customary Law Act.
“Something that is not there in the record but that the applicant wishes this court to know is that part of the accused persons includes the complainant’s son and sister in law who had pleaded with him to send the complainant’s wife back home because of her conduct.
“This is a sad testimony of a son dragged to go against his father and execute a traditional court order. The sister in law also concurred with the order as she complained that her sister assaulted the complainant, was disrespectful and bragged about having political party back up,” said Prof Ncube.
State prosecutor Kudakwashe Jaravaza said the Chief acted out of his jurisdiction as a traditional leader as he infringed on the complainant’s right to property.
Jaravaza admitted to the court that while compiling aggravating circumstances, the State erred by making an oversight of the fact that the chief proceeded to execute his traditional order after the police had warned him against it.
“The police most likely retreated out of fear because they were outnumbered by the accused persons as they were only two. Their initial instruction was to intermediate. It was an oversight on the part of the State not to consider this factor in compiling the aggravating circumstances,” said Jaravaza.
Justice Mabhikwa dismissed the submission citing the State should have made the observations before the appeal had been made and the sentence been passed.