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Court dismisses Dangarembgwa application for discharge – NewsDay

FILMMAKER and novelist Tsitsi Dangarembgwa

A Harare court dismissed an application for discharge by novelist, Tsitsi Dangarembgwa, who faces charges of participating in an illegal gathering with intent to cause public violence.

Dangarembgwa is jointly charged with Julie Barnes, and they are represented by lawyer Chris Mhike.

In dismissing their application, Magistrate Barbara Mateko said the duo must be put to their defence.

“On the physical aspect, the accused acted together and performed actions of displaying placards that are likely abusive or provoking. It is not in dispute that they were on the roads holding placards. It is not also disputed that there were placards. The accused should be put to their defence case,” Mateko ruled.

Dangarembgwa and Barnes will appear in court on August 10.

In their joint application, the duo had submitted that the State had failed to prove a case against them. Constable Cleopas Chupinga, Assistant Inspectors, Donald Chademana and Christian Vungai Makora testified for the State.

Dangarebgwa and Barnes said the witnesses were in agreement that their placards contained messages that could be deemed obscene, threatening, abusive or insulting.

“The witnesses also stated that no violence, breach of peace or bigotry materialized from the actions of the accused, and they failed to illustrate how the act of holding placards with harmless words by two unarmed women could create the potential for violence, breach of peace or bigotry,” they submitted.

“The accused persons have no case to answer to neither is there any legal basis to detain the accused persons any longer in this trial or to put them to their defence with the hope that somehow the two may incriminate themselves and prop up an otherwise unbelievable story of the State.”

The duo said they may choose not to respond to any questions on their defence.

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law an courts

Outrage as Henrietta Rushwaya bizarrely acquitted – The Zimbabwe Mail

Henrietta Rushwaya

ZIMBABWE Miners Federation (ZMF) boss Henrietta Rushwaya has been cleared of wrongdoing in a case where she was accused of offering a US$5,000 bribe to an airport official in a bid to smuggle gold worth US$330,000.

Harare magistrate Learnmore Mapiye ruled that the State’s case was too weak for a reasonable court to convict.

Rushwaya had denied the allegations arguing that she never attempted to bribe anyone since she had no money on her on the day in question.

Rushwaya also said she never avoided the normal airport routines to prove that she had nothing to hide.

Mapiye upheld her arguments.

“The State witness did not support that the accused avoided the ordinary route,” said the magistrate.

“It is also common cause that Owen Sibanda, the key witness, said that he was not offered any money but was going to be offered US$5,000.

“Sibanda said that he took the issue of the bribe as a joke which the court was shocked about because the issue of the bribery is not a joke.”

She added, “The State witness told the court that the accused was arrested for travelling with gold without proper documents but the evidence of the State witness, especially the first one, was not convincing.

“The accused might have committed the offence but the State failed to prove beyond belief that she could have committed the offence.”

Rushwaya was cleared of the charge after a full trial.

Allegations were that she attempted to bribe a Civil Aviation Authority of Zimbabwe (CAAZ) official Owen Sibanda to let her illegally pass through the Robert Gabriel Mugabe international airport with gold.

She denied allegations insisting that she had carried the wrong bag from home on that day.

During trial, Rushwaya testified that when she realised that she had carried the wrong bag, she asked the police to accompany her to her house to collect the correct bag which the police allegedly later collected upon her arrest.

“As we speak both of the similar bags are at the police station,” she added.

Rushwaya also told court that witnesses might be lying against her as a result of external forces who might want to tarnish her reputation and to ruin her chances of remaining ZMF president in the upcoming elections.

“My position is a highly contested one and, when the incident happened, we were heading towards an election so maybe Sibanda was and still is under the influence of external forces,” she said.

“Maybe he is being made to give statements to appease those who are controlling him in an effort to jeopardise my chances of remaining president or he is being malicious.”

Source – NewZimbabwe

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law an courts

Mphokos, Choppies legal wrangle rages on – Bulawayo24 News

THE legal battle pitting Choppies Enterprises Limited against former Vice-President Phelekezela Mphoko and his son Siqokoqela over the 51 percent shareholding that they claim at the retail giant will now proceed to trial.

This follows the decision by Bulawayo High Court judge Justice Martin Makonese to dismiss the exception plea raised by the Choppies Enterprises Ltd.

In legal terms, an exception is pleading in which a party raises an objection to the summons or plea on the basis that the pleading is vague and embarrassing or lacks the necessary averments to disclose a cause of action or defense.

Choppies Enterprises, through its lawyers Dube-Banda, Nzarayapenga Legal Practitioners, sought an exception to the Mphokos’ summons and declaration on the grounds that the cause of action is vague and embarrassing.

Choppies Enterprises, Choppies Distribution Centre (Proprietary) and Nanavac Investments who are cited as defendants, argued that the declaration does not disclose a cause of action.

Choppies Enterprises operates a chain of retail shops in Zimbabwe and is a duly incorporated company in terms of the laws of the country while the Choppies Distribution Centre (Proprietary) and Nanavac Investments are public companies incorporated in terms of the laws of Botswana.

From the submissions filed by the defendants, they are disputing the plaintiffs’ (Mphokos’) claim that the true value of their 51 percent shareholding in Nanavac Investments was US$22 585 714.

“The deed of settlement to the extent to which it purports to set out the value of the 51 percent shareholding of the plaintiffs in Nanavac Investments is null and void,” argued the defendants’ lawyers.

Choppies Enterprises, Choppies Distribution Centre (Proprietary) and Nanavac Investments argued that the Mphokos’ claim is contradictory and inconsistent in that it seeks a declaration of invalidity without a tender of the amount they alleged to have received under duress.

“Defendants contend that the plaintiffs ought to have sought a set-off against the true value of the shares,” said the lawyers.
In their ground of exception, the defendants, further argued that the summons and declaration do not disclose a cause of action for the payment of US$22 585 714.

The Mphokos, through their lawyers Ncube and Partners, argued that the sum of US$2,9 million, which was paid by the defendants is not the true value of their 51 percent shareholding.

The plaintiffs’ argued that they are entitled to an order declaring that they are supposed to get payment of the true value of the 51 percent shareholding, which they held before they were divested of their shareholding in Nanavac Investments.

Faced with the claim, the defendant gave written notice to the Mphokos on August 18, 2020 complaining that the summons and declaration was vague and embarrassing.

They called upon the Mphokos to remove the cause of complaint within 12 days of service of their letter.

The Mphokos contended that there is no merit in the complaint by Choppies Enterprises, Choppies Distribution Centre (Proprietary) and Nanavac Investments.

They argued that it was a ploy to delay the finalisation of the matter.

In his ruling Justice Makonese said there is no legal requirement in terms of the law that compels plaintiff to plead more than the cause of action.

“I conclude, therefore that on the first ground of exception, the plaintiffs have pleaded a complete cause of action,” he said.

The judge said the Mphokos said the exception by the defendants on the grounds that the cause of action in relation to duress is vague and embarrassing has no merit and that the matters would be resolved by evidence.

“The plaintiffs have, in my view, pleaded facts upon which if they are able to prove with evidence, they may establish duress or undue influence,” said Justice Makonese.

He said for the exception to succeed the plaintiffs’ claim must go beyond salvage.

“I am satisfied that the excipients have failed to discharge the onus to show that the pleadings are vague and embarrassing and that they would be prejudiced in any way. In the result, and accordingly, the application be and hereby dismissed with costs,” ruled Justice Makonese.

The Mphokos were the majority shareholders in Choppies Enterprises holding an aggregate of 51 percent shareholding in the company. The former Vice-President held 25,5 percent, his son had 25,5 percent and Choppies Enterprises held 49 percent shareholding through Nanavac Investments.

The dispute arose in 2018 between the Mphokos and Choppies Enterprises, and it spilled to the courts. According to court papers, it was stated that in January 2019 the Mphokos and defendants agreed that plaintiffs would divest themselves of their shareholding in Nanavac Investments.

The parties entered into an agreement, which resulted in a deed of settlement being recorded. The deed of settlement is now the subject of the court proceedings.

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law an courts

‘Virtual courts may infringe rights’ – Bulawayo24 News

MEMBERS of the public yesterday said the introduction of virtual courts could infringe on the rights of accused persons.

This came out during a public hearing on the Judicial Laws Amendment Bill in Harare by the Parliamentary Portfolio Committee on Justice.

The Bill seeks to provide for virtual court sittings in both civil and criminal proceedings at a time when many nationals are not conversant with modern technology.

It also seeks to align various provisions of judicial laws to the Constitution.

The Judicial Service Commission launched the virtual court system in February this year to speed up the completion of cases clogging the Judiciary.

Zimbabwe Lawyers of Human Rights (ZLHR) representative MacDonald Moyo said virtual courts might result in adverse human rights implications.

“In criminal cases, the conduct of the proceedings should, as far as possible, reflect in-person trials ensuring the right to a fair hearing under section 69 of the Constitution of Zimbabwe. Accused persons must be able to adduce all evidence without obstacles and virtual proceedings must ensure that due process is followed,” Moyo said.

“Given the digital divide that exists in Zimbabwe — with most of the population experiencing internet access challenges for many reasons including high data costs, high costs of smart devices, social and economic inequalities, and inadequate infrastructure — virtual courts may further infringe on the right to non-discrimination, equality and equal protection and benefit of the law protected under section 56 of the Constitution of Zimbabwe.”

Proposing that there should be provision in the Bill to allow detained persons to challenge their detention through physical appearance in court, Moyo added: “There should be a limit imposed on the number of sessions that can be heard virtually, ordinarily, remands are for 14 days, at least a maximum of 28 days to ensure that the accused person appears before a magistrate who can also verify their welfare, including any issues or violations that may be perpetrated by the Zimbabwe Prisons and Correctional Services officials.”

Veritas representative Kuziva Ngodza said: “Most people in the country do not have access to computers and WiFi, so how are we also going to ensure that they have access to these in light of the amendments being proposed by the Bill? We need effective cross examination on the virtual platforms.”

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