ZANU PF activist Fidelis Fengu yesterday heaved a sigh of relief when Harare magistrate Tendai Mahwe granted his application for suspension of a $2 000 restitution order in a case where he was convicted for defrauding a Chinese national in a botched residence permit deal.
BY PAIDAMOYO MUZULU
Fengu wants the restitution order stayed until finalisation of his High Court appeal against both conviction and jail sentence. He is currently on $300 bail pending appeal.
The ruling party activist was last month convicted of breaching the Immigration Act when he gave Xu Sheikeng a forged residence permit.
He was subsequently slapped with 12-month jail term, four months of which were suspended on condition of good behaviour and another four set aside on condition he pays restitution to the complainant. Mahwe in his ruling concurred with Fengu that the principle of in pari delicto (equal in guilt) should apply since the Chinese knew that the deal was illegal and, hence, he had no recourse to his money through the courts.
“From the facts of the case, they were all aware that it was illegal and hence the loss must lie where it fell,” he said.
“There is no prejudice the State will suffer if the application is granted since if he (Fengu) loses his appeal he will still pay. The application is granted and he should not pay until his appeal has been heard.”
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Fengu, through his lawyer Rungano Mahuni, had argued that he could not pay restitution to Xu since the complainant was aware that the deal was illegal.
Prosecutor, Samantha Dhlamini, had opposed the application, saying Fengu should comply with the court’s sentence, which compelled him to pay restitution.
In the main case, it was established that after Xu’s application for a residence permit had been rejected by the Department of Immigration, he approached Fengu for assistance.
The court heard that Fengu then promised Xu that he could facilitate production of the permit in return for a fee of $2 000.
Xu gave Fengu the money and was provided with a forged permit that led to his arrest. After his arrest, Xu implicated Fengu.
