BY SILAS NKALA
Ntabazinduna Chief Felix Nhlanhlayamangwe Ndiweni and his 23 subjects, who were last week sentenced to 24 months in jail by a Bulawayo magistrate, yesterday filed an appeal against both conviction and sentence at the High Court.
In their appeal, they cited the State as the respondent.
Bulawayo magistrate Gladmore Mushove on Friday sentenced Ndiweni and his subjects to 24 months before conditionally suspending six months. She further suspended 18 months on condition that the subjects serve 525 hours of community service, while Ndiweni will serve an effective 18 months in jail.
Ndiweni is appealing against both conviction and sentence, while his subjects are appealing against conviction.
In his grounds of appeal against conviction, Ndiweni said the court a quo erred in failing to appreciate that the appellants had no requisite mens rea for the offence since they were executing a valid court order.
“The court a quo erred in failing to appreciate that whatever the first appellant (Ndiweni) did was in the terms of which he subjectively believed was within his powers to do,” reads the grounds of appeal.
“The court a quo erred in failing to appreciate that the Ndebele culture and customary law empower the first appellant to banish out of his jurisdiction any subject convicted of a customary offence. The court a quo erred in failing to appreciate that first appellant had a defence of a claim of right as provided for in terms of Section 236 and 237 of the Criminal Codification and Reform Act.”
Ndiweni, through his lawyer Dumisani Dube, submitted that the court erred in failing to appreciate that the State had not proven beyond reasonable doubt the fact that the appellant had the requisite mens rea for the offence.
In appealing against sentence, Ndiweni submitted that the court grossly erred in finding his moral blameworthiness as high, thereby disentitling him from community service.
“The court a quo grossly erred in finding that community service was not an appropriate sentence for the first appellant when the imposed prison term falls within the 24 months imprisonment threshold. The court a quo erred in not considering other forms of punishment, considering that the value of the destroyed property was less than the value of $300,” read the appeal.
“The court a quo erred in finding that there were aggravating circumstances as no evidence was led to show that fire was used and that the axe used to enforce the order of the court was only, but a tool and not a weapon as alleged by the court. Wherefore appellants pray for the setting aside of both conviction and sentence and as a consequence they be found not guilty and acquitted of the charge. Alternatively if conviction is upheld, first appellant prays that his sentence …be set aside and be substituted with appellant be and is hereby sentenced to 24 months imprisonment of which six months is suspended for five years and the remaining 18 months to be suspended on condition appellants pay a fine of $20.”