The High Court on Monday reserved its ruling in a case Alpha Media Holdings (AMH) journalist Blessed Mhlanga is accused of transmitting messages inciting public violence.
Mhlanga was arrested three weeks ago with the State alleging that he published videos recorded at a press conference held by war veteran Blessed Geza who is opposing an extension of President Mnangagwa's tenure.
He was denied bail by Harare magistrate Farai Gwitima who ruled that he was likely to interfere with witnesses if granted bail.
Aggrieved, he took the matter up to the High Court arguing that the lower court erred in denying him bail.
"The accused has given a sensible or plausible defence. At this stage, the accused is entitled to be heard in respect of allegations against him and the defence he deposed," his lawyer Chris Mhike told High Court Judge Gibson Mandaza.
"He was not present at that press conference and has nothing to do with what was said at that press conference.
"Secondly he did not transmit what was uttered at that less conference because he is not HSTV.
"He also admits that on YouTube, the ownership of the video was attributed to HSTV. He makes it clear that he is not HSTV. Therefore with these common cause factors, it is difficult to comprehend why the state would in the first place arrest the accused and thereafter allege it has a strong case.
"This case is based on a lie. The lie that my client is HSTV. HSTV is the owner of the content and broadcasts the content.
"The State suggests that the transmission of that relevant video is an uncontroverted fact.
"But the question is who transmitted the videos. It would be unfair to conclude that because the videos were concluded, it was the appellant who transmitted the videos.
"It is not even alleged by the state that the video recordings show the appellant broadcasting or transmitting the videos," Mhike said.
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Mhike added that the state did not say that Mhlanga was seen sitting on a computer transmitting the video.
"There is no evidence for this and therefore, the state did not give compelling reasons to deny the appellant bail."
Mhike also said the words which were quoted as the broadcasted messages were not uttered by Mhlanga but Geza.
"It cannot be a compelling reason to say he is the one who transmitted the words. There is no logical link between my client and the words quoted by the State saying it was words which are inciting violence."
Mhike said his client was being punished for something he did not do.
"The onus to prove a strong case is on the state.
"The record of proceedings in the court aquo makes it clear that the video does not pin his presence at the press conference or that he broadcast the press conference. It is clear the arrest was baseless," Mhike said.
Mhike said Mhlanga did not challenge remand as it would have prejudiced him by staying in jail for over two weeks.
"So he reluctantly subjected himself to bail proceedings," Mhike said.
"The vast of accused persons are on bail while on remand, why is my client being denied the same when thousands of suspects are on bail?
"Placement on remand is not a conviction. This offence is not scheduled as a serious offence. It is a finable offence.
"Where a fine can be imposed the court should lean in favour of granting bail," Mhike said.
"The magistrate erred by ignoring that the witnesses were not named. How can one interfere with an unknown witness?"
"There was no evidence that if the appellant continues to work, he will threaten the security of this nation.
"There is no basis for asserting that the appellant before you would undermine public order or peace and security," he added.
"The offence under review is not a scheduled offence so the magistrate erred in denying the appellant bail on rounds that his release will threaten peace and security in the country.
"The magistrate also made other errors which constitute unfairness in his determination.
"There was no evaluation of other factors such as the appellant's cooperation with the police, the act that he presented himself to the police, he flew in from Lusaka specifically to deal with reports that the police wanted to interview him. The magistrate totally ignored that.
Fungai Nyahunzvi representing the state said the prosecution abides by its written submissions.
He said Mhlanga transmitted the messages.
"We did not say he generated the message. For example, if one forwards nude images he will be committing an offence of transmission.
"We are not saying he authored the uttered messages. We are saying he transmitted the messages.
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"We are told that challenging placement on remand would have prejudiced the appellant but we don't why this is being said. That's why courts sit," he said.
"When you look at the reasons why the accused was denied bail you will see that his case is different from other accused persons. The issue is not that he is a flight risk, we are saying he will interfere with witnesses."
Nyahunzvi also said it cannot be contested that Mhlanga is not a senior journalist at HSTV.
The prosecutor said because of his seniority he was likely to interfere with witnesses who are his subordinates.
"Because he is a presidential correspondent. You cannot have a junior coming from college being assigned as a presidential reporter.
"We still abide by submissions we forwarded to the court," Nyahunzvi added.
The presiding judge said he will need time to go through the submissions.
"Quite a lot of submissions have been made. As soon as I'm ready I will put a notice on IECMS, I might put a date and advise parties when to come. It will just be a few days."
