MAGISTRATE Maxwell Ncube on Wednesday recused himself from presiding over the case of Kudakwashe Mahachi who is set to stand trial for stealing his sister’s phone as part of concerted efforts to destroy evidence nailing him for purportedly scalding his four-year-old son with boiling water.
This was after Mahachi’s defence team led by lawyer, Tinashe Runganga from Tanaka Law Chambers, made an application for recusal of the presiding officer as they felt it would be in the “best interest of justice”.
“Taking into account the discussions made, it will be in the best interest of justice that this matter be dealt with by another presiding officer, this is nothing against the presiding officer but it is in the interest of justice,” said Runganga.
Prosecutor Karen Gundani did not oppose the application.
“The State is not opposed to the application. Too many opinions have been shared,” she said.
After Runganga and Gundani had shared their positions on the recusal application, magistrate Ncube agreed to step aside.
“Application for recusal is granted. I recuse myself from this matter.
It will be before a different court,” he said.
Mahachi was then remanded out of custody to 8 July.
Meanwhile, Runganga made an application for an exception to the charge in terms of Section 171 of the Criminal Procedure and Evidence Act Chapter 9:07 as he argued in court that the charge of theft must be dismissed because his client, Mahachi, was the one who purchased the phone that he later gifted his sister.
Mahachi is alleged to have snatched and damaged Meline Mahachi’s iPhone XR smartphone on 13 June as part of concerted efforts to destroy evidence nailing him for purportedly scalding his four-year-old son with boiling water.
According to the State, Mahachi unlawfully took the iPhone XR cellphone with an Econet sim card knowing that Meline was entitled to own, possess or control the property or realising that there was a real possibility that Meline Mahachi might be deprived ownership or control of the smartphone.
However, on Wednesday Mahachi, through his lawyer, sought to have the charges dropped as he said he owned the phone, which is valued at US$400.
“It is the defence’s submissions that the property the accused is alleged to have stolen, that is an iPhone XR belongs to the accused and as such renders the charge vague and embarrassing.
The defence further submitted that with the fact that the alleged stolen property belonged to accused, in mind the charge against the accused should fall away,” argued Runganga.
The State objected to the application averring that the issue of ownership of the property in question being raised by the defence is not a ground of excepting to a charge but is a defence to the charge.
Magistrate Ncube dismissed the application as he ruled that “the charge has sufficient details that warrants the accused to plead to it.
“It is ordered that the exception taken by the accused in terms of Section 171 of the Criminal Procedure and Evidence Act Chapter 9:07 be and is hereby dismissed.”