FORMER Public Service, Labour and Social Welfare minister Petronella Kagonye, who was slapped with a 36-month jail term in June this year for corruption, has appealed for bail pending appeal at the High Court while also filing papers to overturn the conviction and sentence.
Advocate Lewis Uriri, who represented the disgraced former minister and was instructed by lawyer Rungano Mahuni, confirmed the development.
The matter is being handled by Justice Pisirai Kwenda.
Kagonye was found guilty of converting to her own use some 20 computers which were donated through her by the Posts and Telecommunications Regulatory Authority (Potraz). The equipment was meant to benefit schools in the Zanu-PF politician’s Goromonzi South constituency in 2018.
Harare magistrate Vongai Muchuchuti, who found her guilty of the charge, set aside 12 months of the imprisonment term for five years on condition of good behaviour.
A further eight months were set aside on condition she restituted US$10 000, equivalent to the laptops she stole.
The politician’s woes began in June 2018 when she wrote to then Information Communication Technology minister Supa Mandiwanzira requesting computers to donate to schools in her constituency.
On 20 June 2018, Mandiwanzira then wrote to Potraz requesting facilitation of the donations through its e-learning project to Goromonzi South schools.
Potraz donated the computers to Kagonye, who sent her brother Evans Kagonye to collect them on her behalf.
Potraz later made a follow-up on the donation, but the computers could not be accounted for.
A few days after her conviction, she made frantic freedom bids to get out of jail, but her husband was advised that the appeals could only be tabled after 10 working days.
After the lapse of the days, she immediately filed papers for appeal under case number HACC (B) 112/22 at the High Court.
In her heads of argument as presented by Uriri, Kagonye said she was seeking her admission to bail pending appeal against both conviction and sentence on a charge of theft of trust property as defined in terms of section of the Criminal Law (Codification and Reform) Act [Chapter 9:23] by the regional magistrate, Eastern Division [Anti-Corruption Court] sitting at Harare on 8 June 2022.
“The primary issue for determination is whether applicant is in the circumstances entitled to bail pending appeal. The applicant has in her application canvassed the considerations relating to the grant of an application for bail pending appeal. It is submitted that the application has merit and ought to be allowed,” Uriri argued.
“These heads were filed when the applicant has not had an opportunity to consider the respondent’s papers. Therefore, they might not touch on issues that the respondent might raise in their response.
“The heads focus on issues arising from the application and motivate the application for bail pending appeal filed before the court. These heads start by addressing the legal principles applicable in bail pending appeal applications.”
The former minister also argued that the provisions of section 123 (1) (b) (ii) of the Criminal Procedure and Evidence Act as augmented by the provisions of section 123 (2) of the Act make her a deserving candidate for bail pending appeal.
“The import of the above provisions when as appropriately modified, is that bail pending appeal is a right on the same footing as bail pending trial. It therefore necessarily follows that the grounds set out in sections 117(2) and (3) of the Act come into play together with the common law on bail pending appeal suitably adapted to the statutory framework of section 117 (1) thereof,” read part of the heads of argument.
Uriri confirmed that the arguments had been put to the High Court.
“We are now at a stage where we are waiting for the judgement. It was reserved, but we are confident that the courts will rule in our favour,” he said.
Kagonye filed notice of appeal against conviction and sentence which is under case number CRB ACC/10/21 at the High Court.
Through her lawyers, again led by Advocate Uriri, Kagonye said the magistrate who convicted her misdirected herself.
“The court a quo erred and misdirected itself on the principles relative to the discharge of an accused person at the close of state case and in not acquitting the appellant at the close of the state case in view of the fact that, at that stage, no evidence had been lead relative to the essentials of the charge vis a trust agreement in the terms alleged by the state and appropriation of trust property or failure to account for the same.”
“The court a quo erred and misdirected itself on the facts and the evidence in holding as it did, that the property the subject of the charge was held in trust for schools in the Goromonzi constituency and in thus regarding direct real evidence that the direct real evidence that the said property was for the benefit of the needy in the said constituency.”
“The property having been donated for a specific person, and the purpose having been properly undertaken, the court a quo erred in holding that the appellant had a duty to account for the same and failed to do so,” reads the appeal papers.
Other Zanu-PF officials who have been prosecuted for acts of corruption by Zimbabwean courts still walk free.
They include former Local Government minister Ignatius Chombo, Gokwe Nembudziya legislator Justice Mayor Wadjajena, former Public Service minister Prisca Mupfumira as well as former legislator Psychology Mazivisa.