BULAWAYO magistrate Marygold Ndlovu will on February 24 decide whether Kumalo Primary School headmistress Stella Mhlanga (59) is guilty or not on allegations of peddling porn0graphic material after accusations that she accidentally shared a revealing picture of her private parts on her WhatsApp status.
Mhlanga, who is out of custody, is pleading not guilty to charges of contravening Section 26 of the Censorship and Entertainment Control Act Chapter 10:04 (Possession of prohibited articles).
In her defence, Mhlanga through her lawyer Byron Sengweni of Sengweni Legal Practice stated that she was not in possession of the alleged porn0graphic content. She stated that sometime in December 2019 she received a phone from her sister Sibusisiwe Moyo who is based in South Africa after her phone had been stolen by her maid.
“Before handing the phone to the accused, the accused’s sister cleared the phone memory and when she received the phone there was absolutely nothing in it. She will also deny ever posting porn0graphic images on her WhatsApp. The images were not posted via her phone but via some unknown device.
“She will further state that upon receiving news that offensive material had been posted on her WhatsApp she was advised that she had been hacked and was also advised to restore her phone to factory settings.
When she restored the phone, she lost all the data in her phone but even before that she maintains that she did not have any offensive material,” her defence outline reads in part.
She argued that she was advised to stop using the phone in case the hackers attempt to hack it again.
However, during cross-examination Mhlanga admitted that when she opened WhatsApp, she saw a nud_e picture on her WhatsApp status thus corroborating the evidence of expert witness Elvis Shora who had indicated that the pictures were indeed visible on her cell phone.
At the close of the State case, her lawyer filed an application for discharge and in their application, they submitted that the State had failed to prove a prima facie case against the accused and that the evidence was unreliable.
It further submitted that the State had also failed to rebut accused’s defence that the phone memory was cleared when she received the phone.
It also submitted that the State had also failed to prove that accused had knowledge of the images or that the said images were on her gallery as the witnesses did not physically browse the gallery.
In response the State submitted that a prima facie case had been proven. It submitted that it had managed to show that the accused did have knowledge of the indecent pictures in her phone before and on the day she was arrested.
The State argued that the cellphone in question was seized from accused person and four pictures of an indecent nature were retrieved from the cell phone.
“The State will submit that it has a prima facie case against the accused for the following reasons: It is common cause that the accused person was in direct physical control of the Samsung cell phone with the serial number R58FBOTKJZZ. It is common cause the four pictures of an indecent or obscene nature were recovered from the accused person’s Samsung cell phone with the serial number R58FBOTKJZZ.
“It is common cause that the accused person knew that they were prohibited images on her phone as she did see a nude picture on her WhatsApp status,” argued the State.
Allegations against Mhlanga are that on 2 August 2021, a tip-off was received at Provincial Victim Friendly Unit to the effect that she had posted porn0graphic material on her WhatsApp status.
Mhlanga later took down the uncensored picture, but not before some of her contacts including teachers and parents with children at her school had saved it and forwarded it to their friends. She later posted a new status apologising.
She wrote: “Good evening, sorry for what was posted on the status, someone had borrowed my phone. My sincere apologies people. It’s not my character and I don’t post such in my status. Please delete.”
Investigations were later carried out by the police leading to her arrest. Upon her arrest her cell phone Samsung N910F Galaxy Note was also seized and taken to the police station.
The seized cellphone was then referred to CID National Cyber Forensics Laboratory, Bulawayo for examination. During the forensic examinations four porn0graphic images were retrieved from her phone. The nud_e pictures were also produced in court as an exhibit.