Mutare Provincial Magistrate Chipadze on 5 June 2008 dismissed an application by lawyers representing former Manicaland, Zimbabwe Broadcasting Corporation (ZBC) Bureau Chief, Andrew Neshamba.
The application was made on the basis that Neshamba was charged under a wrong law.
Magistrate Chipadze agreed with the defence's contention that ZBC as currently constituted is a company registered in terms of the Companies Act and that at all material times, Neshamba was employed by Newsnet Private Limited.However, he argued that in terms of the ZBC (Commercialisation) Act, the Zimbabwe Broadcasting Holdings was supposed to prioritise serving the needs of the state.
He ruled that the accused's conditions of service were those he enjoyed as an employee of ZBC, before the repeal of the ZBC Act. He interpreted this to mean that what had just changed were names. He, therefore, concluded that the accused was a public officer as defined in the Criminal Law (Codification and Reform)Act.
Soon after the ruling, the defence applied for stop proceedings in the Magistrate Court . They further appealed to the High Court, against the Magistrate's ruling arguing that the Magistrate had misdirected himself in refusing the defence's application and the misdirection was gross.
For the state, Nelson Makunyire opposed the application arguing that only in exceptional circumstances should proceedings be stopped to allow an appeal. He said it will be better for the defence to appeal once should the accused person be convicted.
Magistrate Chipadze will deliver his ruling on the latest application on 9 June 200.
Allegations against Neshamba are that on 4 February 2007 he and William Gumbo facilitated the entry of Peter Moyo, a South African based E-TV unaccredited journalist into Chiadzwa diamond fields in Marange and took video footage of the mine fields.
On 2 June 2008 the defence made an application that Neshamba who faces charges of abuse of duty as a public officer in contravention of Section 174 of the Criminal Law (Codification and Reform) Act was not a public officer as envisaged by the Act.