Regional magistrate Noel Mupeiwa yesterday ruled in favour of the State in a matter in which Harare businessman, Upenyu Mashangwa, and his colleagues are accused of fraudulently importing a Land Rover Discovery 4 for Tendayi Magaya.
Tendai is the wife of Prophetic Healing and Deliverance Ministries leader Walter Magaya.
The magistrate allowed one of the suspect’s warned and cautioned statement to be produced in court as an exhibit, ruling it was obtained freely and voluntarily.
Before the court’s ruling, the suspect, Cosmas Mushaninga’s lawyer Dumisani Mthombeni, had objected to submission of his client’s statement admission before the court, arguing it was obtained under duress.
“After considering all the facts, the court has come to the conclusion that the accused (Mushaninga) made the statement freely and voluntarily. Therefore, the statement is admissible,” Mupeiwa ruled.
Before delivering his ruling, the magistrate, however, chastised both the State and defence lawyers for allegedly taking their responsibilities for granted.
“The State ought to have sought to have the warned and cautioned statement confirmed by the court and I notice that very few statements are being confirmed before the trial starts these days. If this was done, it could have saved us time,” Mupeiwa said while addressing prosecutor Liberty Gono.
Turning to Mthombeni, the magistrate said: “His (Mthombeni) failure to inquire and see the statement from the police and his failure to inquire from his client and Mushaninga’s failure to tell his lawyer shows that the accused gave the statement and knows its content.
“We expect all lawyers to ask the police to see the statement. You don’t just accompany a person to the police without looking at the intricacies of the matter, especially if you have some prior knowledge of the police conduct.”
However, the magistrate made it clear that at law, the statement of a co-accused could not be used to implicate their co-accused.
“The law is clear that what is said by one accused person cannot be used to implicate another,” Mupeiwa said.
The magistrate’s remarks followed Mushaninga’s statement that he signed the statement under duress after the police detectives had threatened to refer him to the homicide section if he did not co-operate.
He also accused Magaya of having influenced the police in the manner the case was investigated. However, Mupeiwa said there was no evidence that Magaya had interferred with the investigations.