Town clerk applies for discharge
MUTARE Town Clerk Joshua Maligwa, who is facing charges of criminal abuse of office allegedly committed during his tenure at Rusape Town Council, has applied for discharge at the close of the State case.
Maligwa is jointly charged with ex-RTC housing director Laurence Mushayabasa, who also made a similar application.
Maligwa’s lawyer, Mr Victor Chinzamba, in a written submission, argued that the State had failed to prove a prima facia case against his client and the court must not put him to defence, but acquit him.
He said the evidence from Mr Raymond Marova, of Opleves Investments, RTC chairman Cllr Amon Chawasarira, his deputy Cllr Evaristo Manyengavana and two others who allegedly bought the stands at the centre of dispute failed to nail Maligwa.
“In order to secure a conviction in terms of SI74, the State needed to prove that the accused persons were at the time public officers of which in casu there is no doubt they were,” read part of the application by Mr Chinzamba.
“The accused persons did something which is contrary to or inconsistent with their duty as public officers or they omitted to do anything which it was their duty to do as public officers for the purpose of showing favour and disfavour.
“It is humbly submitted that the State dismally failed to discharge the onus of proving the above in casu as is apparent from the summaries of the evidence given by the individual State witnesses below. Raymond Marova had nothing to say in support of the charge.
“He (Cllr Chawasarira) said that although the land was properly sub-divided into smaller commercial stands, selling it was wrong. He did not adduce any evidence to show that (Maligwa) sold any land.
“It was up to council and it is still up to council to rectify the anomaly caused by its decision to subdivide the land in question. Once the subdivision was done, selling was inevitable and it would not have been wrong.
“There being no prima facie against them, accused persons cannot be put on their defence for fishing purposes with the hope that they may plug loopholes in the State case. It will be just and equitable if they were discharged at the close of the State case.”
Mr Taurai Khupe of Khupe Law Chambers, representing Mushayabasa, submitted that the pair’s trial was malicious.
He said some council executives should also be in the dock.
“We are left with one conclusion, that this is a malicious suit characterised by vindictive and selective prosecution,” he said. “It will not be a judicious exercise of the court’s discretion to put the accused persons on their defence in order to bolster the State case in a case which cannot be proved.”
Rusape district prosecutor Mr Tirivanhu Mutyasira opposed the duo’s application, saying the State had proved a prima facie case against them.
“Analysis of the evidence shows the idea of selling the land in question was initiated when the accused persons were still employed by RTC in their respective positions,” he said. “They were part of the technocrats.
“The advertisements about the change of land and the sale were done by accused one (Maligwa) in the press. So he cannot dissociate himself from the sale of the land.
“Accused two was the director of housing responsible for land distribution. In fact, the accused persons are saying what they did was above board because they were implementing council resolutions, but no resolution of the change of ownership of the land (exists).
“It is immaterial as to when the land was later paid for by those who bought it. It is important to establish who initiated the process, even if some of the land was paid after accused one had left, it does not change anything.
“Accused persons never consulted the complainant when the land was sold. One wonders why they would opt to advertise the land which they all knew belonged to someone (else). Accused one (Maligwa) even allocated himself stand number 7711 from the subdivided land.
“It shows he had an interest in the land and he later benefited from the land which he knew belonged to the company. Accused persons were acting in concert in what they did. It is the State’s submissions that what they did was contrary to their duties as public officers.”
Rusape provincial magistrate Mr Shane Kubonera is expected to deliver a ruling on June 5, 2018.