Nkayi man drags Chief Dakamela to court

A Nkayi man has approached the magistrate’s court seeking redress after he was ordered to pay three goats by Chief Dakamela and also received eleven strokes for allegedly assaulting a fellow villager.  

Tumelo Maphala who is being represented by Abammeli argues that Chief Dakamela had no jurisdiction to sit, deliberate over and pass a verdict on a criminal assault case, where the complainant involved is the chief’s nephew.

He wants the matter reviewed and the verdict and penalty set aside.

In his founding affidavit, Maphala cites Chief Dakamela as the first respondent who presides over a community court whose jurisdiction is limited to cases rooted in customary law.

The second respondent is Phathisani Ncube, the plaintiff in the matter. 

According to Maphala, at the end of January 2021, he was at Dakamela shopping centre in Nkayi in the company of other people, when he saw Phathisani Ncube and Nkosiyazi Ncube fighting.

“Phathisani Ncube then picked up a brick intending to strike Nkosiyazi Ncube. I intervened, grabbed Phathisani who had wielded the brick and proceeded to disarm him. When the altercation between the two had been quelled I proceeded home,” Maphala said.

But on February 4, Maphala said he was summoned to the chief’s court where he was tried on a charge of having assaulted Phathisani during his scuffle with Nkosiyazi at the shopping centre.

“I was convicted of the criminal charges and sentenced to pay three goats and further undergo three strokes with a sjambok. The corporal punishment was immediately carried out on me in my nude state,” he said.

Maphala was re-summoned to Chief Dakamela’s court on February 9, and for the same offence, was tried, convicted and sentenced to pay an additional goat and eight strokes with a sjambok plus 10 hours community service performed at the chief’s homestead.

“Of the total sentence of the two trials involving one crime, I have since paid three goats but received all the eleven strokes cuts with a sjambok. The corporal punishment was administered in public before all, in my nude state. I have also performed the community service,” he said.

Maphala said he was advised the “chief has no jurisdiction to preside over a criminal matter of any degree of seriousness or non-seriousness,” as he was tried and convicted for assault.

“I was exposed to two trials, two verdicts, a multiplicity of sentences including incompetent illegal and criminal penalties such as being sentenced to receive eleven cuts with a cane and ordered to perform community service,” he said.

“I am advised that in Zimbabwe corporal punishment, administered on an adult person is both criminalised and unconstitutional it constitutes cruel inhuman and degrading punishment. My dignity was particularly violated when I had to strip naked to receive the unlawful punishment aforesaid.”

Maphala points out the chief’s proceedings, verdicts and penalties are “afflicted with illegalities and should be reviewed and set aside as a nullity on account of illegality.”

Due to this case, Maphala’s grounds of seeking a review are that Chief Dakamela had no jurisdiction to hear the matter between the parties nor proceed with the case, inclusive of the verdict and penalty.

“The entire proceedings with respect to the matter between the said Phathisani Ncube and Tumelo Maphala were unlawful in that proceedings exposed the applicant to double trial, double conviction, double verdicts on the same matter and double punishment. That on February 4, 2021, Maphala was tried before Chief Dakamela on a charge of assault, found guilty and sentenced to pay three goats and in addition, same was sentenced to three cuts of corporal punishments and yet again and for the same charge,” reads Maphala’s application for review of community court proceedings.

Maphala was then resummoned to Chief Dakamala’s court on February 9, 2020, and jointly tried on the same charges with Nkosiyazi Ncube where he only, was further sentenced to perform ten hours of community service at the chief’s kraal.

This, Maphala argues, contravened the criminal law and further violated his constitutional right not to be subjected to cruel, inhuman and degrading punishment.

“The first respondent was biased, showed interest in a cause and was conflicted when it proceeded to preside over and entertain Phathisani Ncube, the chief’s nephew and thus set out to preside, convict and pass judgment in favour of the chief’s own relative against outsiders,” he said.

Maphala wants Ncube to recompense him the three goats valued at R3000 and to pay the costs of his application.

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