THE High Court of Appeal has acquitted a Harare man, who was convicted by the lower court for calling his uncle a witch, on technicality that the police investigators only took mobile phone evidence from one party.
Tendai Mpofu, who was represented by Editor Mabuto, was taken to criminal court for contravening Section 35 of Cyber and Data Protection Act.
The complainant is Lameck Shonhiwa of Mt Pleasant Heights.
The prosecution stated that between April 30 and June 11, 2015, Mpofu sent a WhatsApp message to Shonhiwa accusing him of being a witch, claiming he was responsible for the deaths of his relatives.
Mpofu allegedly further insulted him with several unprintable words and threatened to assault him.
The complainant’s cellphone, a Samsung A03, was referred to ZRP Cyber Laboratory Forensic science department for examination.
However, Mpofu pleaded not guilty saying that he never sent the alleged WhatsApp audios to the complainant.
He told the court that he is closely related to the complainant and is his nephew.
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He also told the court that he had a very cordial relationship with the complainant and there was no bad blood between them.
Mpofu also disputed the forensic report saying it was flawed in that only the complainant’s cell phone was examined and his phone was never taken for forensic examination.
He also told the court that there was no direct evidence to show that he sent or authored the alleged WhatsApp messages, saying since there was no forensic comparison, the report does not prove that the messages originated from his cellphone.
He further argued that the report did not have WhatsApp server verification or metadata from the service provider, further claiming that the forensic report was hearsay evidence since it was a record of what the complainant claimed appeared on his phone.
However Magistrate Lisa Mutendereki, who heard the matter, convicted Mpofu saying the State proved beyond reasonable doubt that he insulted his uncle.
Mutendereki sentenced Mpofu to six months in prison, with three of them suspended on condition of good behaviour and the remainder commuted to 105 hours of community service.
Mpofu appealed against the judgment and it was heard by High Court judge Justices Benjamin Chikowero and Maxwell Takuva, who acquitted him saying for investigations to be complete, the investigating officer should have taken both mobile phone gadgets from the complainant and the accused.
The judges determined that since only the complainant’s gadget (cellphone) was taken for forensic examination, there was no evidence that the electronic evidence originated from appellant’s phone.
They further held that for cyber bullying to be proved beyond any reasonable doubt, both the complainant and accused person’s cellphones must be taken for forensic examination so that the origin of where the offensive messages or audios was generated can be traced.
