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State blunder nearly costs businessman

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A blunder by the state nearly cost Bulawayo businessman Joubert Maplanka his freedom after he was arrested by police for bigamy and brought before the courts when the case had already surpassed the time frame of prosecution.

Maplanka was arrested soon after he had made an application to the High Court barring his second wife, Sukoluhle Dladla Maplanka, whom he married in July 1990, from attending his anniversary with the other wife, Nomagugu Nobuhle, three weeks ago.

Maplanka (52) was taken to court where the state ordered his prosecution and he pleaded guilty to contravening section 104 of the Criminal Law (Codification and Reform) Act (bigamy) before Bulawayo magistrate Ndodana Masuku.

When he was due for sentence his lawyer, David Mhiribidi of Phulu Ncube Legal Practitioners, subsequently discovered the businessman tendered a plea of guilty in error as the matter had been barred from prosecution.

The reason was because it had surpassed the time frame of 20 years in which the right to prosecution prevails in terms of section 23(2) of the Criminal Procedure and Evidence (CPE) Act.

The section stipulates that only murder has no time frame for prosecution but any other offence cannot be taken to court after the lapse of 20 years.

Section 104 under which Maplanka was charged carries a sentence of a fine not exceeding level six or imprisonment for a period not exceeding one year or both.

After the discovery of the anomaly, Mhiribidi made an application before the court for Maplanka to alter the plea of guilty to that of not guilty.

In his application he said the case had surpassed the right of prosecution as it had been prescribed in July 2010 after the lapse of 20 years.

“This case allegedly occurred on 14 July 1990.
“Police only arrested my client in November 2010 and charged him with bigamy. This was in contravention of Section 23 (2) of the CPE Act.

“The section reads: ‘The right of prosecution for murder shall not be barred by a lapse of time. The right of prosecution for any offence other than murder shall be barred by the lapse of 20 years from the day the crime was committed. A simple look at the timeframe will show that this particular offence was prescribed sometime in July 2010. My client was only arrested sometime in November well after the prescription of the offence,” said Mhiribidi.

He added: “My prayer is that the plea be altered to that of not guilty, such course of action is allowed by the law.”

Admire Chikwayi for the state conceded to the application and said it would be an abuse of office and a travesty of justice for the court to deal with the matter.

“It’s clear that the offence occurred in 1990 and the proceedings before this court were instituted in November this year. Accordingly the period reflects that the matter is prescribed and that alone is trite and settled in Section 23 (2) of CPE Act.

“It follows therefore that in the absence of leave to waive prescription this matter can’t be entertained before this court. This would be tantamount to abuse of duty to prosecute and accordingly the State consents to the plea of guilty to be altered to that of not guilty. May we have the matter withdrawn,” submitted Chikwayi.

Papers before the court revealed Maplanka married Sukoluhle, a teacher, on July 14 1990, when he wanted her to be transferred from a school in the rural areas to Bulawayo.

However, their relationship later turned sour and the couple took each other to the High Court.

It was during the legal wrangle at the High Court that it was revealed Maplanka married Sukoluhle knowing that he was officially married to Nomagugu Nobuhle.

After the discovery at the High Court, Maplanka was arrested and charged with bigamy.

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