INCARCERATED Ntabazinduna Chief Felix Nhlanhlayamangwe Ndiweni (54) was forced to spend another night in prison yesterday after the High Court in Bulawayo failed to entertain his application for bail pending appeal because the State had not filed its heads of argument.
BY NKULULEKO SIBANDA
Ndiweni, who was sentenced to 18 months in prison after he was convicted of malicious damage to property together with 23 others by Bulawayo magistrate Gladmore Mushove, had approached the higher court seeking bail pending an appeal against both conviction and sentence.
Ndiweni had filed an urgent chamber application through his lawyer Welshman Ncube.
State counsel Kudakwashe Jaravaza, however, told Justice Thompson Mabhikwa in chambers that the State had not had time to go through the appeal for bail.
“My Lord, I appear before you this morning and would like to place it on record that the State has not been able to file any response to the application (for bail) by my learned colleagues for the applicant,” Jaravaza said.
“The reason why we have not been able to respond to the application is that we were only served with the transcript of the proceedings of the lower court as well as the application by the applicant this morning (yesterday) at 10am.
“The State did not have time to go through the transcribed record (from the lower court) and, therefore, was unable to file any heads of argument in the case before the court.”
Jaravaza said the State needed adequate time to appraise itself of Ndiweni’s argument on why he needed to be commuted to bail.
“The State notes the urgency of the application (for bail) by the applicants. We are of the view that the State will need to be accorded the right to respond to that application and we undertake to file the response by 430pm today (yesterday),” Jaravaza said.
In response, Ndiweni’s lead counsel Ncube told the court that the delays in serving the transcript from the lower court had been caused by officials from the magistrates court who took time to put the transcript in its proper order.
“Whereas, technically and at law, the applicant has the responsibility of placing the record of proceedings from the lower court before this court, we wish to make the following clear to this court… we have sought to obtain the record (transcript) every day for the last two weeks since the applicant was sentenced,” he said, adding that they were eventually served with the transcribed copy of the proceedings on Friday last week, but it still needed to be perfected before it could be presented to other stakeholders.
Ncube said they were moved from pillar to post by court officials as they tried to get access to the record.
He said the State had assured them the record would be ready by 9am before changing the time to 2pm and were advised that it was still not ready. They only secured the record after the court’s intervention.
After hearing both the applicants and the State counsels, Justice Mabhikwa ruled that the matter would be heard this morning for the presentation of the heads of argument.
Meanwhile, police placed the Bulawayo High Court vicinity under lockdown by creating a 500m cordon around the court fearing violence outbreak.