HARARE – Former Energy minister Samuel Undenge, who was jailed for four years for irregularly issuing out a tender which prejudiced the Zimbabwe Power Company (ZPC) of $12 000, will stay in jail pending a August 1 hearing on his High application for bail.
Undenge, who is represented by Alec Muchadehama, is seeking to be released on bail pending the hearing of his appeal.
Prosecutor Edmore Makoto said yesterday he needed time to respond to the application, which he said he received late Thursday afternoon.
Undenge was jailed after the State managed to prove that sometime in January 2016, Zanu PF MP Psychology Maziwisa and State TV journalist Oscar Pambuka brought a letter to ZPC from the former minister directing ZPC to work with Fruitful Communications at intervals of six months per engagement.
It was further said in court that on March 8, 2016, Maziwisa and Pambuka, intending to defraud ZPC, presented an invoice claiming they had hosted various programmes on Zimbabwe Broadcasting Corporation, National FM and Power FM.
In his appeal, Undenge said Harare regional magistrate Hosea Mujaya, who convicted him, erred in his findings.
“The court a quo further erred and misdirected itself by convicting the Appellant for merely signing a letter that was dictated to him by … Pambuka, … Maziwisa and Fruitful Communications.
“The court a quo erred and misdirected itself by ignoring that the letter was motivated by … Pambuka, … Maziwisa and Fruitful Communications with an intention to defraud ZPC which actions destroyed appellant’s mens rea and actus reus to commit the offence in question,” Undenge said.
A fundamental principle of criminal law is that a crime consists of both a mental and a physical element.
Mens rea means a person’s awareness of the fact that his or her conduct is criminal, is the mental element, and actus reus, the act itself, or the physical element.
Undenge argued that none of the essential elements were proven against him, adding that the magistrates’ court placed the onus on him to prove his innocence, when it is the duty of the State to do so.
“The court a quo erred and misdirected itself in imposing a sentence which induces a sense of shock, horror, repulsion and outrage.
“The court further erred in paying lip-service to the mitigating factors of the appellant and choosing instead to dwell on irrelevant factors that were extraneous the record.
“The court also erred in sentencing appellant for offences he had not committed more particularly in that the court chose to sentence appellant on behalf of corrupt people whom the court said were escaping justice,” he said.