Judgment No. SC 41/04

Crim. Appeal No. 175/04

THE ATTORNEY-GENERAL v

JAMES CHAFUNGAMOYO MAKAMBA

SUPREME COURT OF ZIMBABWE

HARARE, JUNE 16 & 23, 2004

V Shava, for the appellant

G C Chikumbirike, for the respondent

Before: CHEDA  JA, In Chambers, in terms of Rule 5 of the Supreme Court Rules

The respondent was arrested on various allegations of contravening the Exchange Control Act [Chapter 22:05], as read with the Exchange Control Regulations, Statutory Instrument 109 of 1996.

The respondent was detained by the police and later taken for remand at the magistrate's court. The magistrate's court remanded him in custody and refused to grant him bail. Several applications were made to the High Court for bail but without success. However, in his latest appearance he was granted bail on certain conditions by the High Court (BHUNU  J) on 19 May 2004.

The appellant, who was not satisfied with the decision of the High Court to grant the respondent bail, applied for leave to appeal against the decision, which leave was granted. The appeal was heard in Chambers.

The appellant gave the following as grounds for appeal –

“1. The learned judge did not give due weight to the State’s fears that the respondent, as a man of considerable wealth and substance, has the capacity to interfere with police investigations.

2. The learned judge misdirected himself by finding that in the event that the appellant (the respondent?), if convicted, will only repatriate £30 000 in relation to the purchase of the Colne Valley (property) and thus did not give due weight to the State’s case that £210 000 was the purchase price for the property concerned.

3. The learned judge did not give due weight to the State’s fears that though there are changed circumstances the respondent has only repatriated £9 047.56 of the £20 000 - £25 000 … which by his own admission he had in his bank account with the Bank of Ireland.

4. The learned judge misdirected himself in failing to appreciate the contention by the State that (through) the mere fact the respondent was able to use his American Express Card account and is a holder of a Suisse Bank account he is still able to access other funds outside the country, which have not yet been uncovered by police investigations.”

The respondent contested this appeal by saying that the appellant did not allege any misdirection or irregularity on grounds 1 and 3 but alleged misdirections on its appeal grounds 2 and 4. He submitted that the facts to support the contention that there was a misdirection are either non-existent or do not amount to a misdirection or irregularity, but are a mere expression of an opinion by the appellant which is different from that of the judge in the court a quo.

The appellant submitted that the trial of the respondent has now been set for 16 June 2004. He said the case against the respondent is as strong as ever, more so if one takes into account that most of the money has not been repatriated.

In his response to this, the respondent submitted that there is no money outside the country to be repatriated and that this was supported by the judgment of BHUNU  J, where, after referring to KAMOCHA  J’s judgment, he says at pp 2-3 of the cyclostyled judgment:

“The long and short of it all is that the applicant was denied bail on the basis that he was facing serious charges involving millions of foreign currency which converts to billions of local currency.

With the passage of time and further investigations new evidence has since emerged establishing that the allegations against the accused are not as serious as previously thought.

It is now conceded by the State that, apart from the Number 19 Willowmead Lane, Colne Valley property, the applicant did not purchase and does not own any of the immovable properties as previously alleged.

It will be remembered that the Colne Valley property was allegedly purchased for 210 000 British pounds but only 30 000 British pounds was paid. It follows therefore that, if convicted the applicant will be required to repatriate only 30 000 British pounds.

This substantial huge reduction in the amount to be repatriated upon conviction is coming in circumstances where the applicant has voluntarily repatriated 9 047 British pounds.

Despite the substantial change of facts in favour of the applicant the State still vigorously opposes bail.”

Mr Shava, for the appellant, submitted that on his own admission the respondent has £20 000.00 - £25 000.00 in the Bank of Ireland. This money has not been accounted for. If the £9 047 that the respondent has since repatriated is part of that money, then nothing has been said about the rest.

The allegations against the respondent included six different foreign accounts, namely –

Three accounts in the United Kingdom;

One account in Switzerland;

One account in Germany (the Deutsh Bank, AG, Stuttgart); and

One account in Luxembourg.

In his judgment, CHITAKUNYE  J referred to these foreign accounts and indicated that the respondent denied two of those accounts but admitted the rest.

In my view, when the court a quo relied on the smaller figure of £30 000.00 as the only amount to be repatriated it misdirected itself as it did not take into account whatever may be in those accounts.

Even the concession by the State dealt with the properties alleged to have been purchased by the respondent. The fate of the accounts remained unknown.

In the absence of any information about these bank accounts, and the amounts each may have, the fear by the State of the respondent absconding and living outside the country on those funds is very much worth considering.

In the circumstances, I would agree that the court a quo failed to give sufficient weight to this fear and concern expressed by the State in its third ground of appeal.

A further factor to be taken into account is that the respondent’s trial has been set to commence on 16 June 2004 and to continue up to 18 June 2004. As at the time of hearing this appeal, the trial was to commence the same day.

The main reason for applying for bail was that the respondent be granted his freedom pending trial. In my view, it makes no difference at this stage to consider granting bail to the respondent when the trial is already in progress and is for only three days.

Taking into account the State’s fear, the fact that the respondent has some accounts outside the country that he can survive on, and the fact that his trial has already started and should last only three days, I am not persuaded that the respondent should be granted bail.

Accordingly the appeal by the Attorney-General succeeds to the extent that the decision of the court a quo granting the respondent bail is set aside.

Chikumbirike & Associates, respondent's legal practitioners