Member of Parliament for Njube-Lobengula Constituency Gift Banda has been acquitted of forgery charges after he was accused of fraudulently acquiring a residential stand worth US$60 000.
Banda and his co-accused Mbonisi David Nkomazana (33) and a firm, Bard Real Estates being represented by Mbonisi David Nkomazana were all exonerated of forging Nkululeko Sibanda’s signature.
Bulawayo Magistrate Tinashe Tashaya acquitted the three at the close of the State case citing the State had failed to prove beyond a reasonable doubt that Banda and his accomplices had indeed forged Sibanda’s signature.
According to the State, Banda and his accomplice allegedly forged Nkululeko Ndlovu’s signature purporting that he had agreed to sell him his residential stand in Selbourne Brooke, Bulawayo.
The court heard that Ndlovu bought his stand in February 2015 where he signed a Memorandum of Agreement of Sale with Bulawayo Glass and Allied Products Pvt Ltd, represented by Sipho Mhlanga (now deceased) who was the land developer and owner of the stand.
The agreement was allegedly drafted by Bard Real Estates represented by Nkomazana.
In delivering his judgment, Magistrate Tashaya stated that the legal representatives of the accused persons did due diligence to the allegations and managed to prove that after Sibanda had reported the forgery case to the police, he altered his signature to build his case against the accused persons.
The magistrate said the investigating police officers who were handling the case should have not asked Sibanda to submit new signatures because he had already had sight of the allegedly forged ones so he was in a position to tender a different signature to sustain his case.
“It is clear that when the complainant reported the matter to the police he had seen the signatures in question so when he was asked to give or write samples of his signature for examination, he altered his signature so that they do not match the ones on the questioned documents,” said Tashaya.
“I am surprised as to why the investigating officer asked for new samples of the complainant’s signature instead of simply extracting samples of the signature from the old documents he had signed.”
Magistrate Tashaya ruled that an Agreement of Sale did exist between Sibanda and Banda as evidenced by the documents which were purported to be at the High Court.
“If the Agreement of Sale did not exist, what then did he want the High Court to cancel? The State should have seen that these allegations were malicious. If the complainant was really genuine, he should not have altered his signatures at all,” he said.
Ndlovu, in his testimony during the trial, had told the court that the documents purported by Banda and company to be evidence of the Agreement of Sale were fraudulent.
He stated that he only had a verbal agreement with Banda which he reneged on and when he told him he did not want to sell the stand anymore Banda did not comply.
“He went behind my back and deposited money into my bank account. We had not even agreed on a figure because we had not yet assessed how much I would sell the stand to him for. According to our discussion, we had said we would first go on site and assess the amount of development we had done and then I would charge him then I would cede my rights of the stand to the land developer who would then resell the stand to him. He was supposed to pay for my Paddonhurst stand but he never kept his end of the bargain,” Ndlovu had testified.
For the State, George Rufumoyo, said “Banda and Ndlovu settled their agreement verbally. Banda failed to keep his end of the bargain of securing another stand in Paddonhurst and instead offered to pay Ndlovu cash for his Selbourne Brooke stand. He again failed to settle the cash payment.”
He said on July 21 2017, Ndlovu sent Banda a WhatsApp message informing him that he no longer wanted to sell his stand to him.
The court heard that despite the cancellation by Ndlovu, Banda went on to deposit $2000 into Ndlovu’s Steward Bank account and proceeded to start construction at the stand.
“On realisation that Banda was defiant, Ndlovu, through his lawyers, wrote a letter instructing him to cease his construction but he did not adhere. Ndlovu and his lawyers then made an application to the High Court declaring the sale null and void since it was against City Council’s regulations to sell an undeveloped stand,” said Rufumoyo.
“Banda in turn tendered at the High Court a cessation agreement which was drafted by Nkomazana in his official capacity as a sales agent for Board Real Estates. The cessation agreement purported that Ndlovu had ceded all interest and rights of the stand to Bulawayo Glass and Allied Products.”
The State alleged that the document had Ndlovu’s forged signatures and also tendered at the High Court was an acknowledgement of payment which was drafted by Nkomazana in his capacity as a sales agent of the accused company.