conditions on which bail granted https://old.zimlii.org/taxonomy/term/10149/all en S v Maronga And Ors (Judgment No. HH 393-21, B 1372/21, B 1378/21, CRB HM 6595/21, HM 6596/21, 6597/21) [2021] ZWHHC 393 (30 July 2021); https://old.zimlii.org/zw/judgment/harare-high-court/2021/393 <div class="field field-name-body field-type-text-with-summary field-label-hidden"><div class="field-items"><div class="field-item even"><p>HH 393-21</p> <p>                                                                                                                                                                                  B 1372/21  </p> <p>                                                                                                                                                                                     B 1378/21</p> <p>                                                                                                                                                                       CRB HM 6595/21  </p> <p>                                                                                                                                                                                HM 6596/21  </p> <p>                                                                                                                                                                                HM 6597/21</p> <p> </p> <p>BELLINGTON MARONGA</p> <p>and</p> <p>TAFADZWA MADZIYA</p> <p>and</p> <p>TERRENCE DENGA</p> <p>versus</p> <p>THE STATE</p> <p> </p> <p>HIGH COURT OF ZIMBABWE</p> <p>CHAREWA J</p> <p>HARARE, 14 &amp; 30 July 2021                                   </p> <p><strong>Bail Application</strong></p> <p><em>LT Muringani, </em>for the appellants</p> <p>Ms <em>K H Kunaka, </em>for the respondent</p> <p>CHAREWA J: The appellants are being charged with unlawful dealing in dangerous drugs as defined in s 156(1)(c) of the Criminal Law (Codification and Reform) Act [<em>Chapter 9:23</em>]. Their application for bail pending trial was refused by the Magistrates Court on the basis of the strength of the state case and the consequent likelihood to abscond given the likely sentence that may ensue.</p> <p>The appellants contend that the court <em>a quo</em> committed an irregularity or misdirected itself by</p> <ol> <li>Failing to consider all relevant factors as a whole and not individually and in particular by disregarding appellants personal circumstances,</li> <li>Concluding that appellants would abscond because other suspects in the same offence had fled when there was no evidence of any attempts to flee</li> <li>Failing to give due weight to appellants explanation of what transpired and therefore their defence to the charge</li> <li>Concluding that the state case is strong when there is no evidence to support the mental element</li> <li>And finally, by relying on the unreliable evidence of the investigating officer.</li> </ol> <p>The grant of bail is a matter of discretion by the court. Therefore, it is trite that in matters such as this, it counts for nought that this court might have reached a different conclusion and may have granted appellants bail. The superior court will not normally interfere in the exercise of its discretion by the lower court unless the appellant is able to show that the court a quo committed an irregularity or misdirected itself and exercised its discretion in an unreasonable or improper manner to such an extent that its decision cannot be upheld. The emphasis is mine and serves as a reminder that it is not every irregularity or misdirection that leads to the setting aside of the decision of the lower court. And further, even where the decision of the lower court is set aside, it does not automatically follow that the higher court will grant bail as it is still at liberty to consider whether an applicant merits pre-trial liberty.<a href="#_ftn1" name="_ftnref1" title="" id="_ftnref1">[1]</a></p> <p>Neither can it be gainsaid that bail is a constitutional right, albeit limited by the interests of justice and the need to balance an applicant’s rights with those of the public.<a href="#_ftn2" name="_ftnref2" title="" id="_ftnref2">[2]</a> The provisions relating to pre-trial liberty encapsulated in s 117(2) of the Criminal Procedure and Evidence Act [<em>Chapter 9:07</em>] serve as a framework within which the entitlement to bail and the commensurate limitation to the right to grant bail must be exercised.</p> <p><em>In casu, </em>first appellant is the owner of the vehicle which was carrying a 50kg bag of dagga en route to Mbare. Acting on a tip off that the vehicle was being used for drug dealing, the police followed the vehicle. When it parked and the police approached, first appellant and his three co-accused ran away. Unfortunately, he was caught together with one accomplice after warning shots were fired. The two of them led police to 12480 Budiriro 5B where second and third appellants were sleeping in the house and tuckshop respectively. A further 2 x 50 kg bags of dagga were recovered in the room where second appellant was sleeping together with another plastic bag with more dagga. Third appellant is apparently the tenant or owner of the room and house that the drugs were stashed in.</p> <p>It is instructive to note that a bail application is not a trial where proof beyond reasonable doubt is required, but is an application predicated on a balance of probabilities. The nature and tone of the appellants bail statements seems to conflate trial issues and bail issues. So does a reading of the submissions by the appellants’ legal practitioner in the court <em>a quo</em>. All the respondent was required to show was that on a balance of probabilities, there are compelling reasons not to admit appellants to bail. This, the respondent did by leading evidence from the investigating officer showing the role each of the applicants played, the quantity of dagga recovered from, and through, them and the circumstances of their arrest. It is from this evidence that the court <em>a quo</em> concluded that the state had a strong case regarding a serious charge, which if successfully prosecuted, would lead to lengthy custodial sentences for appellants. The court <em>a quo</em> concluded that such lengthy prospective sentences could reasonably induce them to flee particularly since some of their accomplices had already fled arrest.  </p> <p>I cannot find any misdirection of a nature serious enough, in the reasoning of the magistrate or any irregularity that warrants interference with this court. The ruling of the magistrate reveals that the court <em>a quo</em> was not only alive to the fact that bail is a right but that it needed to balance the interests of the individual with the interests of justice. More particularly, the court was conscious of the requirements of s 117(2) as shown at pp 22-24 of the record, which traverses all relevant issues including the reliance on hearsay evidence, the part played by each of the appellants, the nature and gravity of the offence, the evidential strength of the State case, the likely penalty and the defences raised by the appellants. The court <em>a quo</em> went further to discuss the case law with respect to the conclusion it reached on the likelihood of abscondment. Even this court would have been hard pressed to find justification for personal circumstances to tip the balance in appellants favour and grant them grant bail where the evidence suggests that appellants are dealing in large quantities of dagga to the serious detriment of the public interest, in circumstances where their accomplices are still at large.</p> <p>In the premises, the appeal against refusal of bail is dismissed.</p> <p> </p> <p><em>LT Muringani Law Practice</em>, appellants’ legal practitioners</p> <p><em>National Prosecuting Authority</em>, respondent’s legal practitioners</p> <p> </p> <p><a href="#_ftnref1" name="_ftn1" title="" id="_ftn1">[1]</a> See S v Malunjwa 2003(1) ZLR 275 (H). See also S v Ruturi 2003(1) ZLR 259 (H) and Gaill Muroyi v The State SC11/20</p> <p> </p> <p><a href="#_ftnref2" name="_ftn2" title="" id="_ftn2">[2]</a> See s50(1)(b) as read with S86(2) of the Constitution of Zimbabwe Amendment (No. 20) of 2013 .</p> </div></div></div><div class="field field-name-field-download field-type-file field-label-above"><div class="field-label">Download:&nbsp;</div><div class="field-items"><div class="field-item even"><span class="file"><img class="file-icon" alt="File" title="application/vnd.openxmlformats-officedocument.wordprocessingml.document" src="/modules/file/icons/x-office-document.png" /> <a href="https://old.zimlii.org/zw/judgment/files/harare-high-court/2021/393/2021-zwhhc-393.docx" type="application/vnd.openxmlformats-officedocument.wordprocessingml.document; length=25166">2021-zwhhc-393.docx</a></span></div><div class="field-item odd"><span class="file"><img class="file-icon" alt="PDF icon" title="application/pdf" src="/modules/file/icons/application-pdf.png" /> <a href="https://old.zimlii.org/zw/judgment/files/harare-high-court/2021/393/2021-zwhhc-393.pdf" type="application/pdf; length=344362">2021-zwhhc-393.pdf</a></span></div></div></div><span class="vocabulary field field-name-field-flynote-sync-local field-type-taxonomy-term-reference field-label-above"><h2 class="field-label">ZimLII Flynote:&nbsp;</h2><ul class="vocabulary-list"><li class="vocabulary-links field-item even"><a href="/tags-local/c">C</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/criminal-law-statutory-offences-other-offences-under-criminal-law-code">CRIMINAL LAW STATUTORY OFFENCES (Other than offences under Criminal Law Code)</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/dangerous-drugs-act-chapter-1502">Dangerous Drugs Act [Chapter 15:02]</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/criminal-procedure">CRIMINAL PROCEDURE</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/bail-0">Bail</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/appeal-1">appeal</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/application-bail">application for bail</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/conditions-which-bail-granted">conditions on which bail granted</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/grounds-refusal-bail">grounds for refusal of bail</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/principles-be-observed-bail">principles to be observed (bail)</a></li></ul></span><div class="field field-name-field-cases-considered field-type-node-reference field-label-above"><div class="field-label">Cases considered:&nbsp;</div><div class="field-items"><div class="field-item even"><a href="/zw/judgment/supreme-court-zimbabwe/2020/111">S v Muroyi (SC 111-20, Civil Appeal No. 188/20) [2020] ZWSC 111 (07 August 2020);</a></div></div></div><div class="field field-name-field-legislation-considered field-type-node-reference field-label-above"><div class="field-label">Legislation considered:&nbsp;</div><div class="field-items"><div class="field-item even"><a href="/zw/legislation/act/2004/23">Criminal Law (Codification and Reform) Act [Chapter 9:23]</a></div><div class="field-item odd"><a href="/zw/legislation/act/2016/2">Criminal Procedure and Evidence Act [Chapter 9:07]</a></div></div></div> Thu, 05 Aug 2021 08:39:48 +0000 Sandra 10089 at https://old.zimlii.org S v Chingombe (SC 7-21, Bail Appeal No. SC 6/21) [2021] ZWSC 7 (19 February 2021); https://old.zimlii.org/zw/judgment/supreme-court-zimbabwe/2021/7 <div class="field field-name-body field-type-text-with-summary field-label-hidden"><div class="field-items"><div class="field-item even"><p><strong>                                                                                      Judgment No. SC  07/21                                                                                        Bail Appeal No. SC 06/21</strong></p> <p><strong>REPORTABLE </strong><strong>   (07)</strong></p> <p> </p> <p> </p> <p><strong>CAINOS     CHINGOMBE </strong></p> <p><strong>v</strong></p> <p><strong>THE      STATE</strong></p> <p> </p> <p> </p> <p> </p> <p><strong>SUPREME COURT OF ZIMBABWE </strong></p> <p><strong>HARARE: 19 FEBRUARY 2021</strong></p> <p> </p> <p> </p> <p> </p> <p><em>L. Madhuku</em>, for the appellant</p> <p><em>R. Chikosha</em>, for the respondent</p> <p> </p> <p> </p> <p><strong>BAIL APPEAL (CHAMBER APPLICATION)</strong></p> <p> </p> <p> </p> <p><strong>MAKONI JA:    </strong>This is an appeal against refusal of bail by the High Court handed down on 21 January 2021. The appeal is made in terms of rule 67 (1) of the Supreme Rules, 2018 (the rules) as read with s 121(1)(b) of the Criminal Procedure and Evidence Act [<em>Chapter 9:07</em>] (the CPEA).</p> <p> </p> <p><strong>WHETHER OR NOT THE APPELLANT HAS A RIGHT OF APPEAL TO THIS COURT</strong></p> <p>The appellant anticipated, and correctly so, that an issue might arise whether the appeal is properly before this Court. In his Written Statement, filed in terms of r 67 (1), under the heading “Reasons Why Bail Should Be Granted” he stated his reasons in two parts. The first part is headed, “<strong>Why this appeal is an appeal in terms of s 121(1) (b) of the Criminal Procedure and Evidence Act </strong>[<em>Chapter 9:07</em>]<strong>.”                                                                                                                                                      </strong></p> <p>In the Written Statement he avers that this is an unusual novel appeal that is contemplated by s 121(1)(b) of the CPEA. The learned judge <em>a quo</em>, in determining an appeal against the refusal of bail by a magistrate, found that the magistrate had misdirected herself by accepting the appellant’s grounds of appeal. Instead of allowing the appeal he proceeded to determine the bail application himself on the basis of the record that was before the magistrate. He refused to admit the appellant to bail. The appellant further avers that it is the judge <em>a quo</em> who refused to grant him bail within the contemplation of s 121(1) (b) of the CPEA. He further avers that the disposition of the judge dismissing the appeal, against the refusal of bail, is an error. The correct disposition should have read “In the result bail is dismissed.” His only immediate course of action is to appeal in terms of s 121(1)(b) of the CPEA.</p> <p> </p> <p>The appellant becomes more specific in his heads of argument when he addresses the issue under the heading, <strong>“IS THIS MATTER PROPERLY BEFORE THE COURT? IS THERE AN APPEAL?”</strong></p> <p> </p> <p>As predicted, the respondent raised a point, <em>in limine</em>, that the appellant does not have a right of audience before this Court due to s 121(8) of the CPEA. The relevant portions of s 121 of the CPEA read:</p> <p>“ <strong>121 Appeals against decisions regarding bail</strong></p> <p>(1) Subject to this section, where a judge or magistrate has admitted or refused to admit a person to bail</p> <p>(a) the Prosecutor-General or the public prosecutor, within forty-eight hours of the decision; or</p> <p>(b) the person concerned, at any time; may appeal against the admission to or refusal of bail or the amount fixed as bail or any conditions imposed in connection with bail.</p> <p>(2) An appeal in terms of subsection (1) against a decision of—</p> <p>(a) a judge of the High Court, shall be made to a judge of the Supreme Court;</p> <p>(b) a magistrate, shall be made to a judge of the High Court.</p> <p>(3) …</p> <p>(4) …</p> <p>(5) …</p> <p>(6) …</p> <p>(7) …</p> <p>(8) There shall be no appeal to a judge of the Supreme Court from a decision or order of a judge of the High Court in terms of paragraph (b) of subsection (2), unless the decision or order relates to the admission or refusal of admission to bail of a person charged with any offence referred to in—</p> <p>(a) paragraph 10 of the Third Schedule; \or</p> <p>(b) the Ninth Schedule in respect of which the Prosecutor-General has issued a certificate referred to in subsection (3b) of section <em>thirty-two;</em>”</p> <p> </p> <p>In other words the appellant, having appealed to the High Court, had no right to appeal again to the Supreme Court. It is pertinent at this stage to give the factual conspectus leading to the filing of the present appeal.</p> <p> </p> <p>The appellant, who is the Human Capital Director and Acting Town Clerk of the City of Harare, was arraigned before the Magistrates Court facing a charge of criminal abuse of duty as a public officer as defined in s 174(1)(a) of the Criminal Law (Codification and Reform) Act [<em>Chapter 9:23</em>] (‘the Code’). In the alternative he was charged with theft of trust property in terms of s 113(2) (b)of the Code.  The basis of the charges was that on 30 October 2014, the appellant in his capacity as the Human Capital Director of the City of Harare and in collusion with other City of Harare employees unlawfully appropriated US$130 000 from the Traditional Beer Levy Account which is maintained by the Council. The said amount was transferred into the appellant’s personal bank account, without ministerial authority and to the prejudice of the City of Harare residents. The appellant was also said to have purchased a motor vehicle (Land Cruiser Prado) worth USD119 000 which he registered in his name. He thereafter retained the balance.</p> <p> </p> <p>The appellant sought admission to bail pending his trial in the Magistrates Court. The magistrate refused him bail for the reasons that he was likely to abscond and to interfere with investigations and witnesses.</p> <p> </p> <p>Aggrieved by that decision, the appellant noted an appeal to the High Court (court <em>a quo</em>) in terms of s 121 (1) of the CPEA, against the refusal of bail. He contended that the magistrate improperly exercised her discretion in finding that the appellant was likely to abscond and interfere with witnesses when this was not supported by evidence. He further contended she did not properly analyse his submissions.</p> <p> </p> <p>The court a <em>quo </em>held that the magistrate court’s findings were flawed and found that she had misdirected herself in a number of respects. Having made this finding, the judge <em>a quo</em> stated that “…I am at large to exercise my discretion…”.  He proceeded to determine the matter and ultimately dismissed the appeal.</p> <p> </p> <p>Aggrieved by the dismissal of his appeal by the <em>court a quo</em>, the appellant noted the present appeal.</p> <p> </p> <p>Mr <em>Madhuku</em>, for the appellant, in addressing the question whether the appeal was properly before the court, made the following submissions.</p> <p> </p> <p>The above question arises because of s 121 (8) of the CPEA. Before its amendment the section merely reads:</p> <p>“There shall be no appeal from a decision or order of a judge in terms of this section.”</p> <p> </p> <p>The decisions in <em>S v Dwawo</em> 1998(1) ZLR 536 (S) and <em>Chiyangwa v Attorney General &amp; Ors</em> 2004(1) ZLR 57 (S) which refer to a “single appeal” or “one chance to appeal” were made in terms s 121(8) before its amendment. These decisions do not apply <em>in casu</em> as the section, as it currently stands, is fundamentally different from its predecessor making the above authorities distinguishable and inapplicable. </p> <p> </p> <p>The crux of the matter is that only a decision or order made in terms of 121 (2) (b)of the CPEA is not appealable to a Judge of the Supreme Court. <em>In casu</em>, it is contended that although the judge of the court <em>a quo </em>was approached in terms of s 121 (2) (b) he made his decision in terms s 121 (1) OF THE CPEA making his decision appealable.</p> <p> </p> <p>He concluded by submitting that the matter raises a novel issue which calls for careful consideration. The novel issue arises in the following manner;</p> <p>“A judge of the High Court is approached on appeal in terms of s 121 (2) (b) of the Criminal Procedure &amp; Evidence Act [<em>Chapter 9:07</em>].</p> <ul> <li>The judge is asked to set aside a magistrate’s decision denying bail, with the appellant arguing that the learned magistrate misdirected herself.</li> <li>The judge accepts the appellant’s grounds of appeal by agreeing that indeed the learned magistrate misdirected herself in denying bail in the manner she did.</li> <li>Despite agreeing with the appellant’s grounds of appeal in respect of the misdirections of the learned magistrate, the judge still does not allow the appeal. Instead, the judge switches to being a court of first instance and determines the bail application himself. He refuses bail on the basis of his own reasons.</li> <li>The judge refuses bail, not on the basis of dismissing the grounds of appeal, but after accepting the grounds of appeal, but after accepting the grounds of appeal: in other words, the judge rejects the learned magistrate’s findings and substitutes his own findings.”</li> </ul> <p> </p> <p>The ordinary and grammatical construction of s 121 of the CPEA reveals the following points.</p> <p> </p> <p>(a)     Section 121(1) (b) of the CPEA gives an accused person the right to appeal against a magistrate or judge’s decision refusing to admit him to bail. The exercise of this right of appeal is subject to subsection 2 which provides the relevant fora to exercise that right. If bail has been refused in the magistrates’ court, one’s recourse is in the High Court in terms of s 121(2) of the CPEA</p> <p>(b)     Section 121(8) of the CPEA is the limitation to that right. It stipulates that where the High Court has determined an appeal from the magistrates court, no appeal shall lie to this Court. Only accused persons whose charges fall under para 10 of the Third Schedule or the Ninth Schedule in respect of which the Prosecutor-General has issued a certificate under s 32(3b) can approach the Supreme Court against the High Court’s ruling on appeal.</p> <p> </p> <p>The appellant sought to argue that the court <em>a quo</em>, after accepting the appellant’s grounds of appeal, by finding that the learned magistrate had misdirected herself, switched to being a court of first instance and refused the appellant bail on the basis of its own reasons. Thus its decision was made in terms of s 121 (2) (a) of the CPEA and is therefore appealable. This proposition is however, not borne out by the record of proceedings of the court <em>a quo</em>. A thorough examination of the judgement of the judge <em>a quo</em> reflects that the judge was clear in his mind what he was seized with, which is an appeal. At the outset he sets out the provisions in terms which the matter was before him. These are s 121(1) of the CPEA and r 6 (1) of the High Court of Zimbabwe Rules 1991. Both provisions deal with appeals against the refusal of bail by an accused. He then proceeds to lay out the powers of an appellate court as laid down in <em>Barros and Another v Chimponda 1999</em> (1) ZLR 58 (S) and concludes this part by stating “it is with these principles in mind that I proceed to determine <strong>the appeal”.</strong></p> <p> </p> <p>After analysing the decision of the learned magistrate and having found that she misdirected herself he states, “The error means I am at large to exercise my discretion on the issue of abscondment <strong>using the same materials as were before the court <em>a quo</em>”. </strong></p> <p>Further down when dealing with the strength of the state case he remarked “it seems to me that one cannot say, <strong>for purposes of this appeal</strong>...”   </p> <p> </p> <p>In dealing with the issue of surrendering title deeds as part of the bail conditions he stated “I raised this aspect with Mr <em>Madhuku</em> <strong>at the hearing of the appeal</strong>. He said if <strong>the appellate court </strong>were minded <strong>to allow the appeal</strong> and were to order the surrendering of the title deed then the applicant could do so. <strong>I heard this matter on appeal. The title deed is not part of the record.”</strong></p> <p> </p> <p>Expressing his views regarding the issue of abscondment the judge <em>a quo</em> stated “<strong>In short, I can only exercise my discretion based on the materials before me. That is my understanding of the dicta that I have quoted from the decision in <em>Barros and Another v Chimponda supra.” </em></strong></p> <p> </p> <p>Under the heading “THE OTHER GROUNDS OF APPEAL” the judge <em>a quo</em> stated<strong> “I have addressed the issue in the other grounds of appeal in the course of disposing of the grounds of appeal on abscondment and interference. The need for a separate treatment of the other grounds of appeal therefore falls away.” </strong></p> <p> </p> <p>He then disposes of the matter in the following manner:</p> <p><strong>“In the result, the appeal against the refusal of bail be and is dismissed.” (sic) </strong></p> <p> </p> <p>I have taken a deliberate decision to make reference, <em>in extensor,</em> to the above instances so that there is no doubt in anyone’s mind as to what the judge <em>a quo</em> was seized with. He was clearly dealing with an appeal and disposed of it as such. Nowhere in the judgement does he create an impression that he was dealing with the matter as a court of first instance. Whether or not the court <em>a</em> <em>quo</em> improperly exercised its discretion in dismissing the appeal, having found that the magistrate misdirected herself, does not confer upon the appellant an additional for a of appeal to this Court which right is not recognised in the CPEA.</p> <p> </p> <p><em>In casu</em>, the appellant has no right of appeal for the following reasons. He approached the court <em>a quo </em>in terms of    s 121(1)(b) of the CPEA. That appeal was against the magistrates court’s refusal of bail. By approaching the court, <em>a quo</em>, he exercised his right in terms of s 121(2)(b) therefore s 121(8) of the CPEA automatically applies. There is no right of appeal to the Supreme Court except under the specified exceptions. The appellant has not shown that the crime he was charged with falls under any of these exceptions. To that end, he has improperly approached this Court as he exhausted his right of appeal upon the filing of the appeal in the court <em>a quo.</em></p> <p> </p> <p>Mr <em>Madhuku</em> also sought to persuade the court not to have regard to the decisions in <em>S v Dzawo and Chiyangwa v Attorney General supra</em> which refer to a “single appeal” or “one chance to appeal”. His basis for so arguing was that the decisions were made before the amendment to s 121 (8) of the CPEA was made. The section as amended so the argument goes, is fundamentally different from its predecessor making the <em>Dzawo</em> and <em>Chiyangwa</em> cases distinguishable and inapplicable so he contended.</p> <p> </p> <p>I am not persuaded by the submissions. Firstly, Mr <em>Madhuku</em> deliberately avoided to present argument distinguishing the two cases from the present facts before me. Secondly and critically, the amendment did not change the crux of the provision which is to prohibit endless appeals. All it did, after the legislature realised there was need to cater for such matters, was to provide exceptions to the general principle. The amendment did not change the position of the law as enunciated in the two cases.</p> <p> </p> <p>Both cases state categorically that s 121(8) of the CPEA ousts the right of an accused person who <a name="_Hlk63971585" id="_Hlk63971585">has appealed to a judge of the High Court against the bail decision of a magistrate to take the judge‘s decision on appeal to the Supreme Court.</a></p> <p> </p> <p>In <em>S v Dzawo supra</em> when refusing the appellant leave to appeal, the court construed s 121 (8) as follows:</p> <p>“In construing s 121(8) in context, guidance may be derived as to the intention of the legislature from the background to the passing of the Criminal Procedure and Evidence Amendment Act 1997. The position which obtained before 1 October 1997, when this Act came into operation and repealed and replaced s 121, was this. Under s 44(5) of the High Court Act, an appeal lay to the Supreme Court with leave of either a judge of the High Court or, if he refused the grant, a judge of the Supreme Court, against an interlocutory order or judgment in relation to criminal proceedings before the High Court. See <em>S v Aitken</em> 1992 (2) ZLR 84 (S) at 87A-E. In enacting the new section 121, the lawmaker must be taken to have been aware of the decision in Aitken‘s case. The clear inference is that an alteration to the existing procedure was aimed at. Subsection (1) of s 121 of the Act provides that where a judge or magistrate has admitted, or refused to admit, a person to bail, the Attorney-General, or the person concerned, may appeal. That right is made subject to: (i) s 44(5) of the High Court Act, which specifies that leave must be obtained where the decision is that of a judge of the High Court; and (ii) any restrictions contained in the other subsections. Subsection (2) provides that an appeal in terms of subs (1) against a decision of a judge of the High Court shall be made to a judge of the Supreme Court and against the decision of a magistrate to a judge of the High Court. Thus, where the initial application for bail was to a judge of the High Court, an appeal with leave lies to a judge of the Supreme Court; but where the initial application was before a magistrate, there is an absolute right of appeal to a judge of the High Court. Subsection (5) reads: ―A judge who hears an appeal in terms of this section may make such order relating to bail or any condition in connection therewith as he considers should have been made by the judge or magistrate whose decision is the subject of the appeal. The term ―judge refers to both a judge of the High Court and a judge of the Supreme Court. Subsection (8), which provides that: ―There shall be no appeal from a decision or order of a judge in terms of this section, can only mean, in the context of the subsections referred to, that the aggrieved person is entitled to a single appeal. If the initial application was made to a magistrate, the appeal must be to a judge of the High Court; but if made to a judge, then an appeal lies, with the grant of leave, to a judge of the Supreme Court. In sum, the change brought about by the amendment to s 121 has removed the right of the person concerned who had appealed to a judge of the High Court against the decision of a magistrate in relation to bail, to take the judge‘s decision, subject to leave, on appeal to a judge of the Supreme Court.  (Emphasis added)</p> <p> </p> <p> </p> <p>In <em>Chiyangwa v The State supra </em>the applicant applied to the magistrate's court for bail pending his trial. The application was refused and the applicant was remanded in custody. He then appealed against the refusal to grant him bail to the High Court which allowed his appeal. Acting in terms of s 121(3) of the CPEA, the Attorney-General, advised the learned judge that he intended to appeal against his decision. Irked by that development, the appellant approached the Supreme Court on the basis that the Attorney-General had no right of appeal against the High Court order. In dealing with the issue before it of whether the Attorney-General had, in terms of s 121 of the CPEA, the right of appeal against the order of the High Court, the court held:</p> <p>“I have no doubt in my mind that subs (8) of s 121 deprives any party – both the accused person and the Attorney-General – of any right of appeal against any order made by a judge in terms of subs (5) of s 121 of the Act.   Thus, when a judge of the High Court hears a bail application in the first instance he is exercising his power in terms of s 121(1) and whatever decision he makes is appealable.   However, when he hears a bail application as an appeal judge he does so in terms of s 121(5) of the Act and any order he makes when sitting as such is not appealable because of the provisions of subs (8) of s 121.” See also <em>Attorney General V Fundira</em> SC33/04</p> <p> </p> <p>What is fortified in the above cases is thst the Supreme Court has no jurisdiction to again hear an appeal which has been determined by the High Court. In other words the accused person is only entitled to a “single appeal” or a “one chance appeal”.</p> <p>In <em>Nyamande &amp; Anor v Zuva</em> <em>Petroleum</em>, CCZ 8/15 the Court stated that where there is no right of appeal, the appeal filed is a nullity. The present appeal suffers the same fate, it ought to be struck off the roll.</p> <p> </p> <p>The appellant makes an alternative argument that if the appeal were to be held not properly before the court, this is a proper case to invoke s 25 (2) of the Supreme Court Act [<em>Chapter 7:13</em>] and set aside the decision of the court <em>a quo</em>. His basis for so seeking is that the judge <em>a quo</em> offended against a fundamental principle of the law being that an appeal court that finds merit in the grounds of appeal by agreeing that the court below it misdirected itself, has to allow the appeal.</p> <p> </p> <p>It is my considered view that dealing with this issue will be delving into the appeal itself, through the back door, as that is the appellant’s first ground of appeal. This I cannot do as the appellant has exhausted his right to appeal. Further there is no irregularity as the judge <em>a quo</em> gave his reasons for proceeding in the manner that he did. Whether he was right or wrong is a debate which can only be dealt with in an appropriate case. This position was made clear in <em>Dzawo supra</em> where the court, having found some misdirection by the High Court, sitting as an appeal court, remarked.</p> <p>“Be this as it may, the unfortunate reality is that, although satisfied that the applicant has been unfairly treated, this Court is powerless to grant him the relief he deserves.”</p> <p> </p> <p>The court was “powerless” owing to s 121 (8) which ousted its jurisdiction in the matter since the High Court had sat as an appeal court in the matter. Therefore, despite its decision being wrong, the Supreme Court could not set aside the High Court’s decision since the High Court sat as the final court of appeal per s 121 (8) CPEA. The applicant had no further recourse in the Supreme Court.</p> <p> </p> <p>In <strong><em>Lytton Investments (Pvt) Ltd v Standard Chartered Bank Zimbabwe Ltd &amp; Anor </em>CCZ 11/18</strong>,  in dealing with the principle of finality of Supreme Court decisions on non-constitutional  matters the Constitutional Court   held ,at p 23 of the judgment, that:</p> <p> </p> <p>“What is clear is that the purpose of the principle of finality of decisions of the Supreme Court on all non-constitutional matters is to bring to an end the litigation on the nonconstitutional matters. A decision of the Supreme Court on a non-constitutional matter is part of the litigation process. The decision is therefore correct because it is final. It is not final because it is correct. The correctness of the decision at law is determined by the legal status of finality. The question of the wrongness of the decision would not arise. There cannot be a wrong decision of the Supreme Court on a non-constitutional matter.”</p> <p> </p> <p> </p> <p>The same can be said of a decision made by a judge of the ahigh court in terms </p> <p> </p> <p>Both parties did not pray for costs. I will therefore not make an order for costs.</p> <p> </p> <p>Accordingly, it is ordered as follows;</p> <p> </p> <p>The matter is struck off the roll with no order as to costs.</p> <p> </p> <p><em>Lovemore Madhuku Lawyers Legal Practitioners</em>, appellant’s legal practitioners</p> <p><em>National Prosecuting Authority</em>, respondent’s legal practitioners</p> <p> </p> </div></div></div><div class="field field-name-field-download field-type-file field-label-above"><div class="field-label">Download:&nbsp;</div><div class="field-items"><div class="field-item even"><span class="file"><img class="file-icon" alt="File" title="application/vnd.openxmlformats-officedocument.wordprocessingml.document" src="/modules/file/icons/x-office-document.png" /> <a href="https://old.zimlii.org/zw/judgment/files/supreme-court-zimbabwe/2021/7/2021-zwsc-7.docx" type="application/vnd.openxmlformats-officedocument.wordprocessingml.document; length=41825">2021-zwsc-7.docx</a></span></div><div class="field-item odd"><span class="file"><img class="file-icon" alt="PDF icon" title="application/pdf" src="/modules/file/icons/application-pdf.png" /> <a href="https://old.zimlii.org/zw/judgment/files/supreme-court-zimbabwe/2021/7/2021-zwsc-7.pdf" type="application/pdf; length=733392">2021-zwsc-7.pdf</a></span></div></div></div><span class="vocabulary field field-name-field-flynote-sync-local field-type-taxonomy-term-reference field-label-above"><h2 class="field-label">ZimLII Flynote:&nbsp;</h2><ul class="vocabulary-list"><li class="vocabulary-links field-item even"><a href="/tags-local/c">C</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/criminal-procedure">CRIMINAL PROCEDURE</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/bail-0">Bail</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/application-bail">application for bail</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/conditions-which-bail-granted">conditions on which bail granted</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/principles-be-observed-bail">principles to be observed (bail)</a></li></ul></span><div class="field field-name-field-cases-considered field-type-node-reference field-label-above"><div class="field-label">Cases considered:&nbsp;</div><div class="field-items"><div class="field-item even"><a href="/zw/judgment/constitutional-court-zimbabwe/2015/8">Nyamande &amp; Another v ZUVA Petroleum (CCZ 8/15 Civil Application No. CCZ 62/15) [2015] ZWCC 8 (01 August 2015);</a></div><div class="field-item odd"><a href="/zw/judgment/constitutional-court-zimbabwe/2018/11">Lytton Investments (Private) Limited v Standard Chartered Bank Zimbabwe Limited &amp; Anor (CCZ 11/18, Constitutional Application No. CCZ 54/17) [2018] ZWCC 11 (20 November 2018);</a></div></div></div><div class="field field-name-field-legislation-considered field-type-node-reference field-label-above"><div class="field-label">Legislation considered:&nbsp;</div><div class="field-items"><div class="field-item even"><a href="/zw/legislation/act/2016/2">Criminal Procedure and Evidence Act [Chapter 9:07]</a></div><div class="field-item odd"><a href="/zw/legislation/act/2004/23">Criminal Law (Codification and Reform) Act [Chapter 9:23]</a></div><div class="field-item even"><a href="/zw/legislation/act/1981/28">Supreme Court Act [Chapter 7:13]</a></div></div></div> Thu, 03 Jun 2021 09:05:06 +0000 Sandra 10015 at https://old.zimlii.org S v Ngwanda & 3 Ors (HH 11-21, B 2179/20) [2021] ZWHHC 11 (15 January 2021); https://old.zimlii.org/zw/judgment/harare-high-court/2021/11 <div class="field field-name-body field-type-text-with-summary field-label-hidden"><div class="field-items"><div class="field-item even"><p>BENJAMIN NGWANDA</p> <p>and</p> <p>McCLOUD MAGAMU</p> <p>and</p> <p>MOLLET MASOCHA</p> <p>and</p> <p>SIMON MANHENGA</p> <p>versus</p> <p>THE STATE</p> <p> </p> <p>HIGH COURT OF ZIMBABWE</p> <p>CHIKOWERO J</p> <p>HARARE, 29 December 2020 &amp; 15 January 2021 </p> <p> </p> <p><strong>Bail Appeal    </strong></p> <p> </p> <p><em>I Murambasvina,</em> for the appellants </p> <p><em>R Chikosha, </em>for the respondents</p> <p> </p> <p> </p> <p>            CHIKOWERO J: Having been denied bail pending trial by the magistrates court sitting at Chegutu, the appellants appealed against that decision in terms of s 121 (1) (b) of the Criminal Procedure and Evidence Act [<em>Chapter 9:07</em>] (“the CPEA”) as  read with rule 6 (1) of the High Court (Bail) Rules 1971.</p> <p>THE BACKGROUND</p> <p>            The appellants are artisanal miners employed at Chigumba Mine Gadzema in Chegutu.</p> <p>            On 23 November 2020 they appeared before the magistrates court sitting at Chegutu on initial remand. They are facing a charge of assault as defined in s 89 of the Criminal Law (Codification and Reform ) Act [<em>Chapter 9:23</em>] (“the code”)</p> <p>            The allegations are that on 8 November 2020 and at Chigumba Mining Mill, Gadzema, Chegutu, the appellants hit one Ignatious Tembo on the thigh using a stone and booted feet and fists all over his body intending to cause bodily harm or realising that there was real risk or possibility that bodily harm may occur.</p> <p>            They made a bail application on the date of their initial appearance in Court. It was opposed, and dismissed.</p> <p>            In dismissing the application the court below, after laying out the bail principles, said at p 2 of the judgment:</p> <p>            “In this matter there are compelling reasons to deny bail pending trial. The applicants are artisanal             miners as rightfully pointed by the State, they can relocate if given any chance to do so and they      will not lose anything. The evidence against the accused is overwhelming. The complainant is still          hospitalized and has not yet recovered which is aggravatory on the part of accused persons. The interests of justice will be compromised if the applicants are granted bail. The applicants are not           suitable candidates for bail.</p> <p>            In the result the application is dismissed.”</p> <p> </p> <p>THE GROUNDS OF APPEAL AND THE ARGUMENTS SET OUT IN SUPPORT THEREOF</p> <p>            The appellants contend that the court below misdirected itself as follows:</p> <p>            “1.       First and foremost the decision by the court <em>a quo</em> that the interests of justice will be                                     compromised if the applicant are granted bail flies in the face of the factual basis of the                               appellants’ application for bail that was placed before her. Had the court a quo properly                               applied her mind to that application, and the law on bail, she ought to have realised that                                from the evidence presented in the court <em>a quo</em> the appellants had managed to show on a                              balance of probabilities that it was in the interest of justice that all the four should be freed               on bail. It is also clear that whatever fears the state have could and can be obviated by the                imposition of appropriate conditions pertaining to release.</p> <p>            2.         The second misdirection which vitiated the court <em>a quo’s</em> decision is the fact that artisanal                miners can relocate if given the chance to do so and will not lose anything. Such a finding                made in the absence of cognizable indications of one being migratory is certainly a                                    misdirection. It is common cause that employment is difficult to find in Zimbabwe and                              what this means then is that when one is employed, that is a basis for tying that person to                           a particular place. In <em>casu</em>, that appellants are artisanal miners at Chigumba Mine Gadzema                     actually operates in their favour and not against them.</p> <p>            3.         The Court <em>a quo</em> again misdirected itself by holding that the evidence against the accused                             is overwhelming. This finding of fact can only be made after evidence will have been                                  adduced in court during trial and subjected to the usual test through cross-examination.                                 Certainly evidence on paper cannot by any stretch of imagination be said to be                                             overwhelming particularly where accused is not admitting to the offence and gives his own             version of what transpired. Accordingly therefore, the decision dismissing the meritorious                bail application is vitiated by this misdirection.</p> <p>            4.         As if the above misdirections were not enough, the court <em>a quo</em> committed a gross                            misdirection in dismissing bail on grounds that “the complainant is still hospitalized and                               has not yet recovered which is aggravatory on the part of the accused.” Bail system is not                             penal in character. The principle behind bail pending trial is to balance the interest of the                              accused who is still innocent in terms of the law, with those of the administration of justice             which require that every accused must stand trial before a competent court of law. The use              of words like “aggravatory” is only applicable after conviction and not at bail stage.”</p> <p> </p> <p>            The style adopted by Mr <em>Murambasvina</em> in couching the grounds of appeal and argument relative thereto is this. The first sentence in each of the 4 instances is the ground of appeal. What immediately follows is the argument in support of each ground. In this way, he dispensed with the need to file stand alone heads of arguments. In addition the relevant legal principles were set out and case law germane to an appeal of this nature cited in the appeal filed with registry on 15 December, 2020. So was the complete record of the bail proceedings <em>a quo</em> made up of the charge sheet, state outline, the written bail application, the state’s written response and the judgment appealed against.</p> <p>            Before me, counsel for the appellants essentially adopted the contention set out in the papers already filed of record, highlighted some key issues and urged me to follow the same reasoning as espoused by the court in <em>Ismael Sibanda and Another</em> v <em>The State</em> HMA 47/20. Mr <em>Murambasvina</em>, who successfully argued that matter for the appellant said the circumstances of that matter are similar to what is before me.</p> <p>THE STATE’S RESPONSE TO THE APPEAL</p> <p>            Just as the appellants had done, the respondent referred me to the case law on the legal principles in an appeal of this nature. In a nutshell, if the court below exercised its discretion judiciously and there is no misdirection or irregularity, this court will not interfere with the decision made. See <em>S</em> v <em>Ruturi</em> 2003 (1) ZLR 259 (H)</p> <p>            What should be attacked is the decision of the lower court in refusing bail. See <em>S</em> v <em>Malunjwa</em> 2003 (1) ZLR 276 (H)</p> <p>            The reasoning of the court below resonated well with the <em>dicta</em> in <em>S</em> v <em>Munsaka</em> HB 53/10 and <em>S</em> v <em>Chidziva </em>1988 (2) ZLR 19</p> <p>            In supporting the decision to deny bail on the basis that appellants are artisanal miners the respondent submitted that the nature of their work means that they are nomadic by nature, without fixed abodes, hence the magistrates court can not be faulted for concluding that they were likely to abscond if released on bail.</p> <p>            Mr <em>Chikosha</em> also submitted that there was no basis for attacking the magistrates’ finding that the case for the prosecution was strong. That meant the probability of conviction was high and the possibility of appellants receiving custodial sentences was also high. The appellants’ defences appear in the bail application filed <em>a quo</em>. The first appellant says that complainant was the aggressor. The first appellant acted in self-defence. Hence the fight between those two. Complainant ran away. The first appellant picked up a stone, threw it, and hit the complainant on the thigh. The complainant fell into a pit and got injured. The rest of the appellants joined in at this stage, but only to break up the fight. Noone else was involved in the fracas. I understood Mr <em>Chikosha</em> to be saying that the defences tendered by all the appellants are very weak. By the time that the first appellant hit the complainant on the thigh (with the stone) the first appellant could not be said to have been acting in self defence because the complainant was running away.</p> <p>            The first appellant was not under any attack. Neither was he under any fear of any imminent attack. By the time that the rest of the appellants are said to have joined in to break up the fight there was no such fight occurring. The only thing they could have joined in was in assaulting the complainant. This they did, hence the serious injuries on the complainant which necessitated that he be detained at Chegutu Hospital and later referred to Parirenyatwa Group of Hospitals in Harare where his fate remained unknown as at the date of the proceedings and judgment <em>a quo</em>. The Magistrate could therefore not be criticized for finding that the serious condition of the complainant, at the Parirenyatwa Group of Hospitals, taken together with the strength of the case for the prosecution and the nomadic nature of the appellant’s work provided fertile ground for a finding that if released the appellants were likely to abscond.</p> <p>THE LAW</p> <p>            Both counsel were agreed on the applicable law. This Court will only interfere with the lower court’s decision if it committed an irregularity or misdirection or its exercise of discretion was so unreasonable as to vitiate its decision. See <em>S</em> v <em>Chikumbirike</em> 1986 (2) ZLR 145 (S). The appeal court must not hear an appeal as if it is the court of first instance. The approach is whether the court <em>a quo</em> misdirected itself. It is the findings of the court <em>a quo</em> which must be attacked. See <em>S</em> v <em>Malunjwa</em> (supra)</p> <p>THE ANALYSIS</p> <p>            It is with these legal principles in mind that I now examine the grounds of appeal.</p> <p>            But I must at the outset say this. I am not surprised that the judgment in question has been taken on appeal. It is strikingly brief. It is two paged. It only sets out the bail principles and the conclusion of the court without adequately committing to paper the full reasons why that conclusion was reached. But I have the same material that the magistrates court had before it and am fortunate that, despite the above shortcomings there are clear (though brief) indications (which I am prepared to call reasons) why the court below found that there was a likelihood of appellants absconding if released on bail. I have no doubt that the magistrates court applied its mind to the matter before it.  However, the larger part of the analysis remained stored in its head.</p> <p>ON WHOM DID THE ONUS LIE AND WAS THE ONUS DISCHARGED?</p> <p>            Assault is an offence specified in Part 1 of the Third Schedule. Accordingly, in terms of s 115 C (2) (a) (ii) (A) of the CPEA, the onus lied on the appellants to prove, on a balance of probabilities, that it is in the interests of justice for them to be released on bail.</p> <p>            The magistrates Court misdirected itself on this point of law. It approached the application as if the bail application before it related to a non-Third Schedule Offence in which case, in terms of s 115 C (2) (a) (i) of the CPEA, the onus would be on the respondent to show, on a balance of probabilities, that there are compelling reasons justifying the continued detention of the appellants.</p> <p>This misdirection means that this court is now at large to relook at the application but within the confines of the grounds of appeal. At the end of this exercise I may or may not come to the same conclusion as the magistrates Court. I may or may not interfere with the decision of the magistrates court.</p> <p>AS ARTISANALMINERS THE APPELLANTS CAN RELOCATE IF GIVEN THE CHANCE TO DO SO AND WILL NOT LOSE ANYTHING</p> <p>            The real issues are those factors which the lawmaker has put in place to guide the court in assessing the risk of abscondment pending trial. In this regard, the relevant factors are contained in s 117 (3) (b) (i) – (iii) of the CPEA. They are</p> <p>            “(i)       the ties of the accused to the place of trial</p> <p>            (ii)        the existence and location of assets held by the accused</p> <p>            (iii)       the accused’s means of travel and his or her possession or access to travel documents.”</p> <p> </p> <p>            Paragraph 8 of the bail application filed <em>a quo</em> reads, in relevant part as follows:</p> <p>            “8        ….. None has the means to take themselves outside the jurisdiction of the court and to                                  survive             while there. The four are all unsophisticated young men of very limited means.                                     Any fear of abscondment can properly be curtailed by the imposition of bail conditions                                     directing that each reside at their given addresses and report at ZRP Chegutu until                              conclusion of the matter.”</p> <p>            Paragraphs 2 – 6 of the state outline read as follows:</p> <p>            “2.       Accused 01 is Benjamin Ngwanda, a male adult aged 23 years, residing at Gokwe South                               and is an artisanal miner.</p> <p>            3.         Accused 02 is Mccloud Magamu, a male adult aged 20 residing at Magamu village, chief                              Chirawu, Zhombe and is an artisanal miner in Gadzema.</p> <p>            4.         Accused 03 is Mollet Masocha, a male adult aged 18, residing at Gokwe and is an artisanal               miner</p> <p>            5.         Accused 04 is Simon Manhenga, a male adult aged 18 years, residing at Gokwe and is an                             artisanal miner.</p> <p>            6.         The accused persons and the complainant work in the same mining area of Gadzema,                                   Chegutu.”</p> <p> </p> <p>            What is clear to me is that the appellants did not want the police to know their rural homes. They did not want the police to know where they resided. A person can neither reside “at Gokwe South” or “at Gokwe.” That information is completely unhelpful if not totally misleading. It smacks of a design to send the police on a wild goose chase in an endeavor to trace the appellants to their places of residence in the event of them absconding.</p> <p>            I acknowledge that second appellant furnished full information of his residential rural home.</p> <p>            In the application itself, the appellants furnished vague information of their means. It is not assisting a bail court at all for an applicant to say he is an unsophisticated young man of very limited means. It is to draw the court into the world of speculation of what those limited means are and, if they be assets, where they are located.</p> <p>            The threadbare information placed before the court <em>a quo</em> was essentially that the appellants were young artisanal miners working and based at Chigumba Mine in Chegutu. Beyond this, they had no ties to Chegutu, it was unknown whether they had any assets and if so, the identity and location of such assets. Their means of travel were unknown. One can travel by either foot, cycle, car or bus. One does not need to be the holder of a passport to travel outside Chegutu.</p> <p>            In my view, the court below did not misdirect itself in finding that these particular artisanal miners had nothing to lose by relocating to avoid trial if released on bail. They had no meaningful ties to the place of trial. They had no known ties to any other place. They deliberately provided unhelpful information to the police and the court <em>a quo</em>. The reliance by Mr <em>Murambasvina</em> on <em>Sibanda and Anor</em> v <em>State</em> (supra) was inapposite. The circumstances of that matter are clearly distinguishable from those obtaining in the present matter.</p> <p>DID THE COURT A <em>QUO</em> MISDIRECT ITSELF IN FINDING THAT THE CASE FOR THE PROSECUTION WAS STRONG?</p> <p>            Counsel for the appellants has taken issue with two things in this regard. First, the language employed by the magistrate. Second, the finding itself that the evidence against the appellants is overwhelming. The argument is effectively that the appellants set out their defences in applying for bail. Before the matter has proceeded into trial it is not possible for a bail court to conclude that the evidence for the prosecution is overwhelming because all that was available to the court a <em>quo</em> were the respondent and the appellants’ paper positions. Everything was yet to be tested at trial.</p> <p>            Mr <em>Chikosha</em> submitted that what the court did was to express its opinion on the apparent strength of the case for the prosecution, which the CPEA required that court to do.</p> <p>            Section 117 (3) (b) (v) of the CPEA makes it peremptory for a bail court to consider, in assessing the likelihood of abscondment, the following factors:</p> <p>            “(v)      the strength of the case for the prosecution and the corresponding incentive of the accused               to flee.”</p> <p>            It was necessary for the court below to demonstrate in its judgment how it arrived at its opinion that the case for the prosecution was very strong. I have already noted that the reasoning process was not reduced into writing. But the material used by the learned magistrate is also before me. It is the state outline and the defences set out in the bail statement. There are some facts which are common cause. In setting out the state’s response to this appeal I alluded to my understanding of Mr <em>Chikosha</em>’s submissions on why he supported the magistrate’s opinion that the case for the prosecution was strong. I am not persuaded that the magistrate’s view that the prosecution has an apparently strong case against the appellants is misdirected. That finding cannot in my view be said to be so devoid of logic and common sense that no reasonable magistrate properly applying his or her mind to the facts would have reached such a decision.</p> <p>            Mr <em>Murambasvina</em> complained of the magistrate’s use of the words that “the evidence against the accused is overwhelming” I do not think that was it necessary for him to take issue with the language. It is common cause that the magistrate at Chegutu was not presiding over the trial of the appellants. The court was merely expressing its opinion on the strength of the case for the prosecution. There is superior court authority for resorting to such semantics. In dismissing an appeal against bail refusal in <em>S</em> v <em>Jongwe</em> 2002 (2) ZLR 209 Chidyausiku CJ said at 218 A – B :</p> <p>            “For the above reasons I am satisfied that the evidence against the appellant is overwhelming and    the prospects of conviction for an offence involving the death of the deceased is a virtual certainty.      I am also satisfied that the prospects of the appellant receiving a long prison term or even the death     sentence, if convicted of murder, are real.</p> <p>            I am equally satisfied that because the prospects of conviction and upon conviction the imposition of a long prison term, indeed, even the death sentence are real, the temptation for the appellant to           abscond if granted bail is irresistible. On this basis alone I would dismiss the appeal. The need to           consider the other grounds for the refusal to grant bail fall away.”</p> <p>                                                                                                                                     </p> <p>            I am convinced that  the magistrates court did not misdirect itself in finding that the prosecution had a strong case against the appellants and, by implication, that the prospects of conviction and imposition of custodial sentences would induce them to flee.</p> <p>DID THE COURT A QUO MISDIRECT ITSELF IN FINDING THAT THE COMPLAINANT WAS HOSPITALISED AND HAD NOT YET RECOVERED AND THAT THIS WAS AGGRAVATORY ON THE PART OF THE APPELLANTS?</p> <p>            It is a fact that the assault occurred on 8 November 2020.</p> <p>            It also is a fact that the magistrate dismissed the bail application on the day that it was made, 23 November 2020.</p> <p>            The complainant had initially been detained in Chegutu District Hospital where he was struggling to walk and was referred to Parirenyatwa Hospital where his condition remained unknown.</p> <p>            These are facts. The court below took them into consideration. It did not misdirect itself in doing so. Had it not done so, it would actually have misdirected itself.</p> <p>            The use of the word “aggravatory”, however, suggests a misdirection because the court below was not sentencing the appellants. But it is not every misdirection which is gross. It is not every misdirection which is material. My view is that this was a misdirection in the air. It changed nothing. If anything, the court below could very well have had in mind, and properly so in my view, s 117 (3) (b) (iv) of the CPEA. It reads</p> <p>            “iv.      The nature and gravity of the offence or the nature and gravity of the likely penalty                          thereof.”</p> <p>           </p> <p>            The maximum sentence for assault is ten years. Where the person assaulted sustains serious injuries a custodial sentence is usually imposed. The courts view assaults perpetrated by a gang in serious light.</p> <p>            It was not a misdirection for the court below to be cognizant of the hospitalization of the complainant as an added factor inducing the appellants to abscond.</p> <p>CONCLUSION</p> <p>            Despite the misdirection committed a <em>quo </em>on the question of onus, I have reached the same decision  as the magistrates court after applying the correct legal provisions relating to the facts which were before that court.</p> <p>            The appellants failed to prove, on a balance of probabilities, that it was in the interests of justice for them to be released on bail pending their trial.</p> <p>            ORDER</p> <p>            In the result, the appeal against bail refusal in respect of all the appellants be and is            dismissed.</p> <p> </p> <p> </p> <p><em>Murambasvina Legal Practice</em>, appellants’ legal practitioners</p> <p><em>National Prosecuting Authority</em>, respondent’s legal practitioners</p> <p> </p> <p> </p> </div></div></div><div class="field field-name-field-download field-type-file field-label-above"><div class="field-label">Download:&nbsp;</div><div class="field-items"><div class="field-item even"><span class="file"><img class="file-icon" alt="File" title="application/vnd.openxmlformats-officedocument.wordprocessingml.document" src="/modules/file/icons/x-office-document.png" /> <a href="https://old.zimlii.org/zw/judgment/files/harare-high-court/2021/11/2021-zwhhc-11.docx" type="application/vnd.openxmlformats-officedocument.wordprocessingml.document; length=28615">2021-zwhhc-11.docx</a></span></div><div class="field-item odd"><span class="file"><img class="file-icon" alt="PDF icon" title="application/pdf" src="/modules/file/icons/application-pdf.png" /> <a href="https://old.zimlii.org/zw/judgment/files/harare-high-court/2021/11/2021-zwhhc-11.pdf" type="application/pdf; length=443095">2021-zwhhc-11.pdf</a></span></div></div></div><span class="vocabulary field field-name-field-flynote-sync-local field-type-taxonomy-term-reference field-label-above"><h2 class="field-label">ZimLII Flynote:&nbsp;</h2><ul class="vocabulary-list"><li class="vocabulary-links field-item even"><a href="/tags-local/c">C</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/criminal-law-common-law-crime">CRIMINAL LAW (Common Law Crime)</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/assault-intent-do-grievous-bodily-harm">Assault with intent to do grievous bodily harm</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/criminal-procedure">CRIMINAL PROCEDURE</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/bail-0">Bail</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/appeal-1">appeal</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/application-bail">application for bail</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/conditions-which-bail-granted">conditions on which bail granted</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/grant-bail">grant of bail</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/grounds-refusal-bail">grounds for refusal of bail</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/principles-be-observed-bail">principles to be observed (bail)</a></li></ul></span><div class="field field-name-field-cases-considered field-type-node-reference field-label-above"><div class="field-label">Cases considered:&nbsp;</div><div class="field-items"><div class="field-item even"><a href="/zw/judgment/harare-high-court/2003/26">S v Ruturi ( HH 26-2003) [2003] ZWHHC 26 (11 May 2003);</a></div><div class="field-item odd"><a href="/zw/judgment/bulawayo-high-court/2016/104">S v Munsaka (HB 104-16 HCAR 512-16 CRB HWN R 15-16) [2016] ZWBHC 104 (28 April 2016);</a></div></div></div><div class="field field-name-field-legislation-considered field-type-node-reference field-label-above"><div class="field-label">Legislation considered:&nbsp;</div><div class="field-items"><div class="field-item even"><a href="/zw/legislation/act/2004/23">Criminal Law (Codification and Reform) Act [Chapter 9:23]</a></div><div class="field-item odd"><a href="/zw/legislation/act/2016/2">Criminal Procedure and Evidence Act [Chapter 9:07]</a></div></div></div> Thu, 25 Mar 2021 07:26:29 +0000 Sandra 9982 at https://old.zimlii.org S v Yemurai (HH 60-21, B79/21) [2021] ZWHHC 60 (16 February 2021); https://old.zimlii.org/zw/judgment/harare-high-court/2021/60 <div class="field field-name-body field-type-text-with-summary field-label-hidden"><div class="field-items"><div class="field-item even"><p> </p> <p> </p> <p>TRYMORE YEMURAI</p> <p>versus</p> <p>THE STATE</p> <p> </p> <p> </p> <p>HIGH COURT OF ZIMBABWE</p> <p>CHITAPI J</p> <p>HARARE, 5 February 2021 and 16 February 2021</p> <p> </p> <p><strong>Appeal against refusal to grant bail by the magistrate</strong></p> <p> </p> <p><em>J Gusha</em>, for the appellant</p> <p><em>R Chikosha</em>, for the respondent</p> <p> </p> <p>           </p> <p>CHITAPI J: The appellant as accused No. 5 appeared before the provincial magistrate with four alleged accomplices on 30 October, 2020 facing a charge of robbery as defined in s 126 of the Criminal Law (Codification &amp; Reform) Act [<em>Chapter 9:23</em>]. The quintet was placed on remand following which they applied for bail pending trial which was denied by the said provincial magistrate. The appellant filed an appeal against the provincial magistrate’s decision to deny him bail on 13 January 2021. On 15 January 2021, the appeal was set down before FOROMA J whom postponed the matter to 19 January 2020 at the request of State counsel who required time to prepare and file the respondent’s response. On 19 January 2021, the hearing was further postponed to 22 January 2021 as the respondent’s response was still not filed. The hearing was further postponed to 28 January 2021 and then to 4 February 2021. The respondent’s response by Mr <em>Chikosha</em> was finally filed on 21 January 2021. He was however only available to argue the matter on 4 February 2021 due to COVID-19 challenges as the National Prosecuting Authority  placed its officers in groups for purpose of providing limited service to ensure a non-shutdown of the office.</p> <p>In the response Mr <em>Chikosha </em>opposed the appeal. I should record that on 18 January 2021, the respondent filed a response prepared by Miss <em>Kunaka</em> in which she conceded the merits of the appeal and had consented to bail being granted. The response aforesaid was on 19 January 2021 withdrawn by Mr <em>Chikosha</em> who proceeded to then file his response in place thereof on 21 January 2021.</p> <p>The background facts to this matter were that the appellant and his accomplices were charged for robbery on allegations that the five of them went to Equity House at Corner Jason Moyo and Rezende Street where they proceeded to the complainant’s office. They pretended to be genuine customers who intended to sell gold to the complainant. It was not stated whether or not the complainant was legally entitled to deal in gold. That consideration aside, the charge alleged that the appellant and his accomplices then threatened the complainant with violence whilst armed with an electric shocker which they used to induce fear and submission of the complainant to relinquish his property. The quintet allegedly manhandled the complainant, tied his hands and legs and zipped his mouth with a cello tape. I must remark that on these allegations the robbery was committed in movie style. The quintet then forcibly took the safe keys from the complainant and opened the safe. They stole from the safe US$2 215.00. Besides the cash, they stole the complainant’s oppo cell phone and another cell phone belonging to one Freddy Karimupfumbi who had left it on charge in the complainant’s office.</p> <p>The further allegations were that the complainant managed to quickly set himself free and shouted for help. The complainant gave chase of the quintet and managed to apprehend one David Farai Hausi within the building. David Farai Hausi appeared before the magistrate as accused 1. Accused 2 and 3, namely Tawanda Nyemba and Richard Aloishes Miller were apprehended by members of the public outside Equity House. One accused George Moyo was alleged to have escaped. The inclusion of George Moyo would mean that contrary to the allegations in the charge sheet which refers to the robbery as having been committed by a quintet, the robbery was committed by sextet. It was alleged that upon their arrest, the three apprehended accused 1, 2 and 3 who then implicated the 4th accused and 5th accused being Michael Kamusoko and the appellant. The same three accused persons were alleged to have further implicated George Moyo and one, Gunners (no further particulars) and Maphosa (no further particulars). It alleged that property worth US$1800.00 was recovered out of stolen property worth US$2395.00. Other than the oppo cell phone recovered from accused 2, Tawanda Nyemba, no detail was stated as to what further property was recovered and from him. It was also stated in the allegations that the appellant was arrested at his house No. 7685 Kuwadzana 3 without resistance.</p> <p>The provincial magistrate denied the appellant bail as well as the other four accused persons. In her ruling the provincial magistrate was not explicit on the ground which she relied upon to make a finding that it was not in the interests of justice to deny the appellant bail. She simply stated that the appellant and his accomplices had not outlined their defences to assist the court to gauge the strength of the State case. She accepted that the evidence against the appellant and Michael Kamusoko was in the nature of implication by accused 1, 2 and 3. The provincial magistrate then stated that the 4th accused and the appellant “initially managed to escape from the scene.” She accepted that there had been no identification parade carried out to implicate accused 4 and the appellant. The provincial magistrate stated as follows in regard to the 4th accused and the appellant in her judgment:</p> <p>“The counsel for 4th and 5th spoke of the I.D. parade but the 3’s defences are not expressly mentioned save to say they have nothing to do with the alleged offence.”</p> <p> </p> <p>            The provincial magistrate then concluded her judgment as follows:</p> <p>“The State has succeeded in proving compelling reasons such as the danger that the accused persons may pursue members of the public if released. Also, search have not yet been made in full.</p> <p>The court is of the view that the 5 are not suitable candidates for bail.”</p> <p> </p> <p>In this appeal, the appellant listed the following grounds of appeal</p> <p> </p> <ol> <li>The court <em>a quo</em> erred at law in refusing the appellant bail on the basis that there were compelling reasons when in fact there was no such reason.</li> <li>The court a quo erred at law in refusing bail to the appellant on the basis that he posed a danger to member of the public whom he may pursue if released on bail.</li> <li>The magistrate erred by not considering the defence or explanation raised by the appellant. There is not nexus whatsoever between the appellant and the offence in question.</li> </ol> <p>In the respondent’s response, Mr <em>Chikosha </em>correctly submitted that on appeal, the decision of the magistrate can only be interfered with where it is shown that the magistrate committed an irregularity or a misdirection in reaching the decision appealed against. Counsel submitted that in case No B 2060/20 the4th accused was denied bail by CHIRAWU-MUGOMBA J and that the circumstances of the 4th accused and the appellant were similar. The 4th accused indeed had the appeal dismissed on 5 January 2021. The only endorsement on the result slip reads as follows:</p> <p>“Compelling reasons to deny bail existed so no misdirection. Appellant implicated – evidence not seriously challenged.”</p> <p> </p> <p>            The learned judge did not prepared a fully clothed judgment. It is not possible for me to appreciate the nature and detail of the compelling reasons referred to by the learned judge. The evidence of implication referred to was not outlined. I am therefore not in a position to rubber stamp Mr <em>Chikosha</em>’s submission that the circumstances of the 4th accused as prescribed in his appeal in case No. B 2060/20 were the same as for the appellant herein. For those reasons of paucity of information on the reasons for judgment, I cannot be persuaded to be guided by the decision in case no. B2060/20. The decision is therefore to be taken as having been informed by the peculiar considerations which the learned Judge considered.</p> <p>Other than the above, Mr<em> Chikosha</em> did not make any other meaningful submissions to support the provincial magistrates’ decision. He submitted that the appellant did not outline the nature of his defence. However, he did because he stated that he knew nothing about the commission of the offence. Such a statement amounts to challenging the state to prove both the <em>actus reus</em> by the appellant accompanied by the necessary <em>mens rea</em>. The critical issue was for the provincial magistrate to consider the veracity of the allegations made against the appellant first before considering the applicant’s defence where he or she has proferred one. The accused may not even plead a defence where there is no evidence to link him to the commission of the offence. The provincial magistrate relied on the case of <em>S </em>v <em>Ruturi</em> HH 26/2003, a decision by MAKARAU J (as she then was) in an appeal against the refusal by the magistrate to grant appellant bail in a fraud case. The learned Judge commented that the appellants’ failure to plead his defence at the time of arrest and at his remand hearing made the state case appear strong. The provincial magistrate also relied on this decision to make an adverse finding that the appellant was not a suitable candidate for the grant of bail.</p> <p>It is my considered view that the both Mr<em> Chikosha</em> and the learned provincial magistrate misapplied the dicta in the <em>Ruture</em> case. In that case there was cogent evidence against the appellant which without being answered became strongly suggestive of the appellants’ guilty. Therefore the <em>dicta i</em>n the <em>Ruturi </em>case that the accused is expected to give an outline of his defence must apply where there is cogent evidence alleged by the State as require to be answered. <em>In casu</em>, there was no cogent evidence against the appellant which was alleged by the State. I say so because other than being implicated by the co-accused, there was no cogent and admissible evidence alleged by the state to link the appellant to the offence. In the course of argument, Mr<em> Chikosha</em> persisted in his submission that there was cogent evidence against the appellant in the form of implication by the appellant’s co-accused. I paused the question how such evidence would be adduced at trial since the accomplices would be accused persons in the dock and there would be no evidence against the appellant at the close of the State case. Mr <em>Chikosha</em> had no answer to the question posed and rather than simply acknowledge and concede that there was no cogent evidence against the appellant he submitted that he could not concede to the appeal. It is not expected of counsel to cling to a unsupportable position because justice is all about impartiality and in this regard, the prosecution is constitutionally mandated to act without fear, favour or bias in the discharge of prosecuting functions.</p> <p>I also consider it necessary to make further comment on the judgment in <em>Ruturi</em>’s case. It must be appreciated that the well written judgment is a 2003 judgment. There have however been developments in our jurisprudence. There is presently a new constitution passed in 2013 which provides for the right of arrested and detained persons to remain silent. Section 50 (4) (a) of the constitution provides for this right and it is extended to “any person who is arrested or detained for an alleged offence”. Section 70 (1) (i) of the constitution provides that “any person accused of an offence has the following rights – (1) to remain silent and not to testify or be compelled to give self-incriminating evidence.” The dicta in the <em>Ruturi</em> case on the need for the accused to give an outline of his defence failing which an inference of a strong case against the accused may be assumed is arguably unconstitutional because the accused is compelled to trade in his right to remain silent for a favourable finding on the accused’s suitability to be granted bail. <em>In casu</em> the provincial magistrate misdirected herself in law by basing her refusal to grant bail on the apparent failure by the appellant to outline his defence.</p> <p>A startling finding by the provincial magistrate was the finding attached by the appellant in the second ground of appeal that the appellant would if release on bail pursue members of the public. It was a finding which came from the blue as it was not an issue in the hearing before the magistrate. The judgment of MAKARAU J (as she then was) in <em>Taruwona &amp; anor </em>v<em> State</em> HH 6/05 which was quoted by the appellants’ counsel comes to the fore where the learned Judge stated, </p> <p>“It is trite in my view that when a judicial officer decides on an application, he or she must at least refer to that legal principle upon which the decision is based in addition to the facts upon which the legal principle is applied. In the above ruling by the trial magistrate no legal principle is referred to and the evidence that he claims to have looked at thoroughly is not referred to. It is the lack of these basic features in the ruling by the magistrate that in my view constitute the misdirection on his part...”</p> <p>            The above dicta applies with equal force in this appeal. The provincial magistrates’ judgement shows that she directed herself to the promiscuous of s 117 (2) of the Criminal Procedure &amp; Evidence Act which list the four grounds which if established will justify the denial of bail in the interests of justice. The provincial magistrate only paid up service to the factors aforesaid. Had she been properly directed, she would have realized that the factors which must be taken into account in establishing each of those grounds are set out in s 117 (3). The finding that the appellant would pursue members of the public was not based on any facts or evidence place before the provincial magistrate.</p> <p>            In consequence of the gross misdirections committed by the provincial magistrate, I am at large to exercise a fresh discretion on the matter. Having considered the facts and circumstances of the case, the lack of cogent evidence of the link between the appellant and the commission of the offence, and inter-alia that he has a fixed abode and did not evince any intention to abscond, there are no compelling reasons to deny the appellant bail.</p> <p>            Accordingly the following order is made:</p> <p>            The decision of the magistrate to deny the appellant bail in case no. CRB HREP 9930/20 made on 30 October, 2020 is hereby set aside and substituted with the following order:</p> <ol> <li>The accused is admitted to bail pending trial in case no. HRE P 9930/20.</li> <li>The accused shall deposit $5000.00 with the Clerk of Harare Magistrates Court.</li> <li>The accused shall reside at House no. 7685 Kuwadzana 3, Harare until the matter is finalized.</li> <li>  The accused shall report at Kuwadzana Police Station every Fridays between 0600-1800 hours.</li> <li>The accused shall not interfere with witnesses and investigations. </li> </ol> <p> </p> <p> </p> <p> </p> <p><em>Gurira &amp; Associates,</em> applicant’s legal practitioners</p> <p><em>National Prosecuting Authority</em>, respondent’s legal practitioners</p> <p> </p> </div></div></div><div class="field field-name-field-download field-type-file field-label-above"><div class="field-label">Download:&nbsp;</div><div class="field-items"><div class="field-item even"><span class="file"><img class="file-icon" alt="File" title="application/vnd.openxmlformats-officedocument.wordprocessingml.document" src="/modules/file/icons/x-office-document.png" /> <a href="https://old.zimlii.org/zw/judgment/files/harare-high-court/2021/60/2021-zwhhc-60.docx" type="application/vnd.openxmlformats-officedocument.wordprocessingml.document; length=23136">2021-zwhhc-60.docx</a></span></div><div class="field-item odd"><span class="file"><img class="file-icon" alt="PDF icon" title="application/pdf" src="/modules/file/icons/application-pdf.png" /> <a href="https://old.zimlii.org/zw/judgment/files/harare-high-court/2021/60/2021-zwhhc-60.pdf" type="application/pdf; length=338936">2021-zwhhc-60.pdf</a></span></div></div></div><span class="vocabulary field field-name-field-flynote-sync-local field-type-taxonomy-term-reference field-label-above"><h2 class="field-label">ZimLII Flynote:&nbsp;</h2><ul class="vocabulary-list"><li class="vocabulary-links field-item even"><a href="/tags-local/a">A</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/appeal-0">APPEAL</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/appeal-high-court">Appeal to High Court</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/criminal-matter-appeal">Criminal matter (Appeal)</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/appeal-magistrates-court">appeal from magistrates court</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/appeal-high-court-0">appeal to High Court</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/c">C</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/criminal-law-common-law-crime">CRIMINAL LAW (Common Law Crime)</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/robbery">Robbery</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/criminal-procedure">CRIMINAL PROCEDURE</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/bail-0">Bail</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/application-bail">application for bail</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/conditions-which-bail-granted">conditions on which bail granted</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/grounds-refusal-bail">grounds for refusal of bail</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/principles-be-observed-bail">principles to be observed (bail)</a></li></ul></span><div class="field field-name-field-cases-considered field-type-node-reference field-label-above"><div class="field-label">Cases considered:&nbsp;</div><div class="field-items"><div class="field-item even"><a href="/zw/judgment/harare-high-court/2003/26">S v Ruturi ( HH 26-2003) [2003] ZWHHC 26 (11 May 2003);</a></div></div></div><div class="field field-name-field-legislation-considered field-type-node-reference field-label-above"><div class="field-label">Legislation considered:&nbsp;</div><div class="field-items"><div class="field-item even"><a href="/zw/legislation/act/2004/23">Criminal Law (Codification and Reform) Act [Chapter 9:23]</a></div><div class="field-item odd"><a href="/zw/legislation/act/2016/2">Criminal Procedure and Evidence Act [Chapter 9:07]</a></div></div></div> Thu, 18 Mar 2021 11:19:10 +0000 Sandra 9975 at https://old.zimlii.org S v Rutizira & Anor (HH 61/21, B 152-21; B 175-21) [2021] ZWHHC 61 (16 February 2021); https://old.zimlii.org/zw/judgment/harare-high-court/2021/61 <div class="field field-name-body field-type-text-with-summary field-label-hidden"><div class="field-items"><div class="field-item even"><p> </p> <p>GERALD RUTIZIRA</p> <p>and</p> <p>NEVERSON MWAMUKA</p> <p>versus</p> <p>THE STATE</p> <p> </p> <p> </p> <p>HIGH COURT OF ZIMBABWE</p> <p>CHITAPI J</p> <p>HARARE, 5 January 2021 &amp; 16 February 2021</p> <p> </p> <p> </p> <p><strong>Bail Ruling Trial</strong></p> <p> </p> <p><em>K Makumbire</em><strong>, </strong>for the 1st applicant</p> <p><em>E Mavuto</em>, for the 2nd applicant</p> <p><em>V Mtake</em>, for the respondent</p> <p> </p> <p>           </p> <p>            The two applications referenced B 152/21 and B 175/21 were consolidated for purposes of hearing because the applicants are co-accused in the case for which they seek to be  admitted to bail pending trial. The reference to first and second applicants is for convenience and the applicants are not joined as first and second applicants as such. The first and second applicants are co-charged with alleged accomplices namely Kalvin Musakwa, Tendai Zuze and Trymore Chapika. The first and second applicants were arrested in the early hours of 9 January 2021. They were formally brought before the magistrate at Harare Magistrate Court on 13 January 2021 for initial remand. They were remanded in custody. Consequent on the remand in custody they petitioned this court for bail pending trial.</p> <p>            The allegations against the applicant were that on 6 January 2021, them and three accomplices including a fourth accomplice who is still at large conspired to rob a ZB Bank cash in transit truck which was transporting cash amounting to US$2 775 000.00 to the bank branches in Chinhoyi, Kadoma, Gweru, Bulawayo, Gwanda and Zvishavane towns. It was alleged that in pursuance of their plan, the two applicants and accomplices armed themselves with pistols, a knife and they also arranged for three vehicles to be available. The vehicles would be used to stalk the cash in transit vehicle. The gang allegedly arranged that some of them would be picked up on the way to appear as if they were genuine passengers. The plan to the rob the vehicle involved ZB Bank employees Fanuel Musakwa and Shadre was fick Njowa who were in the cash in transit vehicle as Bank representative custodians of the money. The cash in transit vehicle was a Toyota Hilux truck with canopy. It was fitted with a tracker and emergency panic button. The ZB bank employee Fanuel Musakwas was allegedly the one who was in communication with accomplices as the vehicle was being driven along Lomagundi road en route to Chinhoyi.</p> <p>            It was further alleged that at Inkomo tollgate, the crew members picked up a box with ZWL$43 090.00 which was supposed to be banked at ZB Bank Chinhoyi branch. The motor vehicle was driven towards Chinhoyi before Fanuel Musakwa requested the crew driver to pick up three persons at Inkomo Barracks turn off under the guise that they were genuine passengers yet they were Fanuel Musakwa’s accomplices. On reaching the 60 kilometer peg one of the “passengers” who had been picked up indicated that he had reached his destination and requested the driver to stop and drop him off. Upon the driver stopping, the other accomplice passengers also disembarked and produced pistols which they threatened the crew with. Other accomplices immediately arrived in two vehicles, a toyota passo and a Toyota lexus. Shots were fired in the air before the robbers disarmed the cash in transit crew and forcibly took their 9 mm Hama pistol and a SMLS rifle. They bundled the crew members in the canopy of the cash in transit vehicle and thereafter drove the vehicle some 900 km off the Harare-Chinhoyi highway where they offloaded seven boxes which contained the cash in transit of USD$2 775 000.00 and the box contained ZWL$43 090.00. They loaded the boxes into their Toyota twin cab vehicle which was also part of the robbery vehicles used as the gateway vehicle. The further allegations made were that the gang then drove to some farms to the West of Nyabira where they broke open the boxes and shared the stolen loot. The first Applicant herein Gerald Rutizira is alleged to have been the driver of the gateway toyota truck.</p> <p>            As regards evidence linking the first and second applicants to the offence, it was alleged that after his arrest the first applicant led police to the recovery of USD$96 100.00 which was part of his share of the robbery proceeds. Police also recovered a white Toyota Hiace which was still to be registered. It was alleged that the first applicant further led to the recovery of the Toyota hilux double cab used in the robbery. The robbery vehicle had recently been repainted from red to white. It had been originally white in colour before being repainted red and now back to white again a day after the robbery.</p> <p>            In the case of the second applicant, it was alleged that he led to the recovery of USD$48 000.00 which was his share of the crime proceeds and had been given to him by his brother Fanuel Musakwa.</p> <p>            The police alleged that there was evidence of communications amongst the applicants as evidenced by geographical communications locations. It is in my view critical to record that the first and second applicants did not challenge their placement on remand on the allegations as outlined in the Form 242. Where an accused person is brought before the magistrate on allegations of having committed an offence, and does not challenge the factual allegations made with the result that he is placed on remand on the basis thereof, the accused must be taken as having admitted the allegations. See <em>Levi Nyagura</em> v <em>Tilola Mazanje </em> <em>and Anor</em> HH 227/18.  Every subsequent remand must be justified by the State if challenged. The accused is also free to challenge before the magistrate the initial allegations on which he or she was placed on remand if facts arise which dilute the allegations and/or the reasonable suspicion that the accused committed the offence charged. In <em>casu</em>, without any such challenge having been made by both applicants herein, the correct approach must be to accept that the State established a reasonable suspicion that the applicants committed the offence charged.</p> <p>            There has developed a tendency on the part of legal practitioners in bail applications to mount a sustained challenge to the grounds or allegations on which the applicant applying for bail was remanded in custody. This is improper. The bail court does not determine whether or not the applicant ought to have been placed on remand. The bail court cannot order a removal of the applicant from remand. It is up to the applicant to challenge the continued remand before the magistrate or to either appeal against the decision to place the applicant on remand or apply for a review of that decision. The High Court can then consequent on the challenge being brought by way of appeal or review substitute its own decision if the applicants appeal or review challenge is successful.</p> <p>Occasionally the investigating officer is called by the prosecutor as a witness to give evidence in opposition to a bail application. Applicant’s counsel and sometimes the prosecutor take the opportunity to ask the investigating officer to justify the arrest of the applicant and to provide evidence of the link between the applicant and the commission of the offence. Again it is in my view wrong to turn the bail court into a remand challenge court. Once the remand has been granted with or without challenge made by the accused, the order which is made to place the accused on remand is a judgment which if the accused is dissatisfied with he approaches this court by appeal or review. In this application there was a sustained challenge to the allegations on which the applicants were remanded. I cautioned counsel on the impropriety of doing so. In response counsel indicated that they were seeking to test the strength of the state case. There is a limit to this because the strength of the State’s allegations must be challenged on remand because the dilution of allegations has a bearing on and in fact determines whether or not a reasonable suspicion is established  that the applicant or accused committed the offence charged.</p> <p>In this application, the investigating officer detective assistant Inspector Chipwazo testified in opposition to the bail applications. In relation to the first applicant he testified that the first applicant was arrested at a girlfriends’ house in Amsterdam suburb, Harare. The sum of $USD 96 1000.00 was recovered from the first applicant. The first applicant  allegedly led to the recovery of the Toyota Hilux truck which the first applicant had repainted a day after the robbery to disguise its colour identity. Under cross examination the investigating officer admitted that the applicant did not have pending cases nor known previous convictions. He also agreed that the first applicant had two wives and two properties within the same Amsterdam suburb being house numbers 187 and 122. The investigating officer however maintained that the applicant could not be trusted to stay at his houses since he was arrested at a girlfriends’ house around 0200 hours. The investigating officer also testified that the information gathered by police was that the gang members shared USD $150 000.00 each and that more recoveries were anticipated including from the first applicant.</p> <p>In regard to the second applicant the investigating officer testified that the applicant was arrested at the Goromonzi tollgate where police were waiting for him after gathering information that he was fleeing to Mozambique through Forbes border Post. Upon his arrest the second applicant was driving a motor vehicle from which upon search, the arresting details recovered USD $74 844.00 and ZWL $675.00. The money was recovered, some in his pockets, in the monarch suitcase which he carried on him, inside a satchel, in a purse and onside his packed clothes and inside a blanket.</p> <p>Under cross examination the investigating officer stated that the second applicant led to the recovery of a Honda Fit and Lexus. He clarified that upon his arrest the second applicant had USD $500.00 in his vehicle and the USD $74 844.00 was hidden amongst his luggage which included a monarch suitcase, satchel, purse and clothes. The investigating officer also corrected his evidence and agreed with the second applicant’s counsel that the Honda fit and Lexus were recovered not through the second applicant’s indications, but those of a co-accused Tendai Zuze. He also agreed that he made a mistake in the request for remand form and mistakenly recorded the address of the same Tendai Zuze as that of the second applicant. The investigating officer further testified that the second applicant had not been to his rented house for two days and police were checking for him there at number 2004-183 block 3, Mbare Harare. Police only arrested him upon a tip off that he was absconding to Mozambique. The police waylaid him at the Goromozi tollgate and nabbed him. The investigating officer also testified that the second applicant did not have a fixed abode and was a tenant at the residence where he stayed. The investigating officer opined that the second applicant could therefore just abscond the rented accommodation.</p> <p>The first applicant in motivating his application averred that he was not a flight risk because he owned two houses where his two wives each stayed. He stated that he did not commit the offence and was not part of the gang that committed the robbery. He outlined his defence as that he was a victim of circumstances in that he was hired by one Dhewa under false pretences that Dhewa required a vehicle to carry game meat from Nyabira area. However upon arrival there was no game meat. There were “unknown men” who compelled him at gun point to carry the bags/boxes of money. He thus stated that he only came into the picture after the robbery. He stated in para 14 of the application as follows:</p> <p>“It is trite for a conviction to ensure that the state must prove both the <em>actus reus</em> and <em>vaens ren</em>. The applicant did not participate in the commission of the robbery and had no intention to commit the robbery when he was hired by Dhewa-applicant had no knowledge that Dhewa and others planned to commit the robbery. The robbery had already been committed when he was directed to a spot about 900 metres form Chinhoyi Road.</p> <p>Indeed, applicant became aware that a crime had been committed but did not participate in the commission thereof. Indeed; applicant can be guilty of theft as he received a sum of money which was later recovered by the police. The money recovered from him was merely dumped at him when the robbers released him” </p> <p>Although the bail court does not turn itself into a trial court to determine the merits of an accused persons’ defence, the court can express a <em>prima facie</em> opinion on the veracity of the defence.<em> In casu</em>, the applicant cannot be said to have any lawful defence because he admits complicit in the matter. The fact that he did not participate in the actual robbery does not absolve him because he becomes an accessory after the act in terms of the provisions of s 206, 207 and 208 of the Criminal Law (Codification and Reform) of the same Act. An accessory to a crime is liable to the same punishment as the actual perpetrator. The first applicant even conceded that he could be convicted of theft.          </p> <p>            There is no doubt that the State case against the first applicant is very strong and the chances of a conviction are almost certain. The offence is very serious and the penalties provided for robbery are very stiff in that the first applicant upon conviction will be liable to life imprisonment or any definite period of imprisonment if the robbery was committed in aggravating circumstances set out in s 126 (3) of Criminal Procedure &amp; Evidence Act. There was use of a firearm and threats to kill the victims of the robbery. It is an accepted approach of the court to reason that where the offence is very serious, carries a heavy sentence on conviction, the State evidence is strong and there is certainity of a conviction coupled with an untenable defence advanced by the applicant, the risk or likelihood of abscondment is adjudged to be very high. That principle is applicable in this case. The presumption of innocence is strictly speaking not apparent in this case. It remains a right which however will not likely be realized through a not guilty verdict because as I stated, on the facts of the case as alleged and taking into account the first applicant’s explanation, no plausible defence has been pleaded. The first applicant benefitted from the crime and bought cars. He tried to conceal the identity of the car which he had used by repainting it.</p> <p>            The risk of abscondment will not necessarily be cured by surrendering of a passport. Abscondment is not limited to abscondment to a foreign country but the accused can go into hiding within Zimbabwe. The passport does not stop a person from illegally crossing the borders without detection. Police are still to recover and outstanding money. I am also of the view that given the seriousness of the offence as shown by the brazen resolve to commit it and planning that went into it taken together with the first applicant’s admission of involvement and gaining financially therefrom, the release of the first applicant on bail will undermine the objectives of both the criminal justice system and the bail system.</p> <p>            From the foregoing I am in agreement with Mr <em>Chesa</em> for the respondent that there are compelling reasons to deny the applicant bail. In any event the applicant bears the onus to show on a balance of probabilities that it is in the interests of justice to admit him to bail. He has not discharged such onus. The interest of justice will be served by denial of bail.</p> <p>            In regard to the second applicant, he indicated that he would deny involvement in the commission of the offence. He indicated that he was a passenger in a car which he had boarded in Harare enroute to Mutare. The car was a Toyota bubble and he was one of the five passengers excluding the driver. The vehicle was stopped by the five police officers at the Goromonzi tollgate. Upon a search of the vehicle a large amount of money was recovered. As I understood the explanation the second applicant pleaded that he was a victim of circumstances. As I indicated, in considering the first applicant’s bail application, the bail judge can also express a <em>prima facie</em> view of the applicants proposed defence. The final decision on whether it stands if for trial court. The second applicant did not deny that his movements were already known and that it was not coincidence for the police to want to arrest him at the toll gate in question.</p> <p>            The first applicant spray painted his motor vehicle a day after the robbery. The state submitted that the spray painting was a ploy to conceal evidence. Such inference is not far-fetched. The motor vehicle was originally white. It was painted a red colour before being repainted white. No plausible explanation was advanced by the first  applicant. The investigating officer testified that the second applicant was a tenant at 2004-183 Block 3 Mbare Flats, Harare and was unemployed. The second applicant did not demonstrate any permanent attachment to the residence. Police did not find him when they looked for him. He did not offer any surety regarding permanency of residence. His explanation that persons whom he did not know but had been commuters in the same vehicle with him; implicated him as the owner of the recovered money is somewhat fanciful because no motive was alleged for the occupants of the vehicle to implicate him. Further, I found the evidence of the investigating officer to be very credible when he testified that the arrest of the second applicant was not coincidental but planned by police after they received information of the applicant’s intention to abscond to Mozambique.</p> <p>            I need to again express my concern that counsel use the bail court to sneak in a challenge to the remand allegations they were dealt with and accepted by the remand court. The second applicant consented to be placed on remand on the basis of allegations, <em>inter alia</em> that he was found in possession of USD$74 844.00. The magistrates accepted the allegation as factually established. I have to accept that position. The second applicant now contradicts that consent  by alleging that he was not in possession of the money. His <em>bona fides</em> are highly questionable and he did not impress me by prevaricating.</p> <p>            The second applicant has the onus to establish on a balance of probabilities that it is in the interests of justice that he be admitted to bail. The second applicant is a likely flight risk and will not stand trial. I have accepted the evidence of the investigating officer that the arrest of the second applicant was not a coincidence but part of a police operation. The second applicant has not been candid with the court in explaining his involvement in the commission of the offence he did not give sworn testimony which could have carried some evidential weight.</p> <p>            The second applicant is a demonstrated flight risk who was caught while in the process of leaving Harare. His denial that he was in possession of the money which was allegedly recovered from him as I noted appears to be fanciful and highly improbable. The applicant was not directed to address the factors in s 117 (3) (b) of the Criminal Procedure and Evidence Act which lists factors which the courts take into account when gauging the risk of abscondment. The applicant is not only a flight risk but his release on bail given the serious uncontroverted allegations which were not challenged upon his remand, will undermine the objectives and proper functioning of the criminal justice system and the bail institution.</p> <p>            Consequently I order that both applications be and are hereby dismissed. Copy of this judgement shall be filed in both case No. B 152/21 and B 175/21.</p> <p> </p> <p> </p> <p> </p> <p> </p> <p><em>Muvirimi Law Chambers</em>, 1st applicant’s legal practitioners</p> <p><em>Maposa and Ndomene</em>, 2nd applicant’s legal practitioners</p> <p><em>National Prosecuting Authority</em>, respondent’s legal practitioners</p> <p> </p> </div></div></div><div class="field field-name-field-download field-type-file field-label-above"><div class="field-label">Download:&nbsp;</div><div class="field-items"><div class="field-item even"><span class="file"><img class="file-icon" alt="File" title="application/vnd.openxmlformats-officedocument.wordprocessingml.document" src="/modules/file/icons/x-office-document.png" /> <a href="https://old.zimlii.org/zw/judgment/files/harare-high-court/2021/61/2021-zwhhc-61.docx" type="application/vnd.openxmlformats-officedocument.wordprocessingml.document; length=24628">2021-zwhhc-61.docx</a></span></div><div class="field-item odd"><span class="file"><img class="file-icon" alt="PDF icon" title="application/pdf" src="/modules/file/icons/application-pdf.png" /> <a href="https://old.zimlii.org/zw/judgment/files/harare-high-court/2021/61/2021-zwhhc-61.pdf" type="application/pdf; length=342935">2021-zwhhc-61.pdf</a></span></div></div></div><span class="vocabulary field field-name-field-flynote-sync-local field-type-taxonomy-term-reference field-label-above"><h2 class="field-label">ZimLII Flynote:&nbsp;</h2><ul class="vocabulary-list"><li class="vocabulary-links field-item even"><a href="/tags-local/c">C</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/criminal-law-common-law-crime">CRIMINAL LAW (Common Law Crime)</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/robbery">Robbery</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/criminal-procedure">CRIMINAL PROCEDURE</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/bail-0">Bail</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/application-bail">application for bail</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/conditions-which-bail-granted">conditions on which bail granted</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/grant-bail">grant of bail</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/grounds-refusal-bail">grounds for refusal of bail</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/principles-be-observed-bail">principles to be observed (bail)</a></li></ul></span><div class="field field-name-field-cases-considered field-type-node-reference field-label-above"><div class="field-label">Cases considered:&nbsp;</div><div class="field-items"><div class="field-item even"><a href="/zw/judgment/harare-high-court/2018/227">Nyagura v Tilda Mazhande N.O. &amp; Another (HH 227-18, HC 2938/18 REF CRB HREP 2287/18) [2018] ZWHHC 227 (25 April 2018);</a></div></div></div><div class="field field-name-field-legislation-considered field-type-node-reference field-label-above"><div class="field-label">Legislation considered:&nbsp;</div><div class="field-items"><div class="field-item even"><a href="/zw/legislation/act/2004/23">Criminal Law (Codification and Reform) Act [Chapter 9:23]</a></div><div class="field-item odd"><a href="/zw/legislation/act/2016/2">Criminal Procedure and Evidence Act [Chapter 9:07]</a></div></div></div> Thu, 18 Mar 2021 10:01:09 +0000 Sandra 9974 at https://old.zimlii.org S v Chapfika; S v Chirara (HH 76/21, B93/21; B 107/21) [2021] ZWHHC 76 (26 February 2021); https://old.zimlii.org/zw/judgment/harare-high-court/2021/76 <div class="field field-name-body field-type-text-with-summary field-label-hidden"><div class="field-items"><div class="field-item even"><p>1.         TRYMORE CHAPFIKA                                                                                          B 93/21</p> <p>            versus</p> <p>            THE STATE</p> <p> </p> <p>2.         CHARLES CHIRARA                                                                                           B 107/21</p> <p>            Versus</p> <p>            THE STATE</p> <p> </p> <p> </p> <p>HIGH COURT OF ZIMBABWE</p> <p>CHITAPI  J</p> <p>HARARE 2 February 2021 and 26 February 2021.</p> <p> </p> <p> </p> <p><strong>Bail Pending Trial  </strong></p> <p> </p> <p><em>N Chigoro, </em>for the 1st Applicant</p> <p><em>L Mandiveyi</em>, for 2nd applicant</p> <p><em>B Murevanhema, </em>for the respondent</p> <p> </p> <p> </p> <p>            CHITAPI J: The above two applications were consolidated by consent of counsel on application by the prosecutor Mr <em>Murevanhema</em>. Mr <em>Murevanhema</em> submitted that the two applicants were co-accused in the matter in regard to which they have applied for bail pending trial. The prosecutor had summoned the Investigating Officer to give evidence on both applications in regard to the bail applications. It was thereof convenient for the investigating officer to give evidence in regard to both applications instead of giving evidence in each application separately. The consolidation was for purposes of hearing and judgment.</p> <p>            The back ground to the applications was as follows:</p> <p>            In regard to first applicant, he appeared before the magistrate at Harare for initial remand on 13 January, 2021 and was remanded in custody. The magistrate advised the applicant to apply for bail before the High Court if minded to seek bail. The applicant was remanded in custody together with four other accused persons, namely Gerald Rutizira, Kelvin Musakwa, Tendai Zuze and Neverson Mwamuka, on allegations of Armed Robbery as defined in s 126 (1) (a) (b) of the Criminal Law Codification and Reform Act, [<em>Chapter 9:23</em>]</p> <p>            The brief details of the facts alleged against the first applicant were that, him and his co-accused and accomplices who included others said to be still at large waylaid a ZB Bank cash in transit vehicle on 6 January, 2021 and robbed the vehicle crew of USD$2 775 000 by using fire-arms to induce fear and submission in the crew members. The applicant and his accomplices then drove the cash in transit crew vehicle to some secluded place where they offloaded the cash boxes which contained the money from the cash in transit vehicle into one of their gateway vehicles which was being driven by co-accused Gerald Rutizira. The applicant and his accomplices were alleged to have then driven the gate away vehicle with the cash boxes to some farming area to the west of Nyabira where they broke open the cash boxes and shared the money. The cash in transit vehicle and the vehicle were abandoned at the place where the cash boxes were transferred from the cash in transit vehicle into the gateaway vehicle. The robbery was committed at the 60 kilometre peg along the Harare, Chirundu highway around 11:30 am.</p> <p>            In relation to evidence linking the first applicant to the offence, it was alleged before the magistrate as it was recorded on the remand form 242 that there was  witnesses evidence to identify him and his accomplice. It was also alleged that the first applicant led police to the recovery of USD38 900 which was his share of the robbery proceeds. It was further alleged that there was evidence of geographic physical communication amongst the applicant and his accomplices whereby a run through of their cellphones showed that they were communicating within the same locality the locality coincided with the areas of the robbery. It is important to record that the first applicant did not challenge the grounds alleged at the remand. The magistrate was satisfied that the allegations disclosed a reasonable suspicion that the applicant committed the offence charged.</p> <p>            In regard to the second applicant, the same allegations made against the first applicant as I have briefly outlined them herein were alleged against the second applicant. He was an alleged accomplice with the first applicant and others in the commission of the robbery.</p> <p>            In relation to linking the second applicant to the commission of the offence, it was alleged that the second applicant was implicated by his co-accused persons. Additionally he was alleged to be owner of a Toyota passo motor vehicle which was used in the robbery as part of gate away vehicles used by the second applicant and accomplices who included the first accomplice. It was further alleged that the second applicant made indications of how the robbery was committed and that the indications were video recorded. The Toyota passo motor vehicle was also recovered. Evidence of communication between the second applicant and accomplices was gathered by police.</p> <p>            The second applicant like the first applicant did not challenge the allegations against him before the magistrate. The allegations were therefore accepted by the magistrate who determined that they established a reasonable suspicion that the second applicant committed the offence charged. It is necessary to record that the decision to place an accused on remand is reached after application by the prosecutor to have the applicant placed on remand. The magistrate will only agree to place an accused person on remand if the state alleges facts from which a reasonable suspicion is established that the accused committed the offence. The accused if he does not agree with the allegations should challenge them before the magistrate. A failure to do so implies that the accused agrees with the allegations. The challenge should not be made before the bail court because the bail court is not an appeal or review court for decisions on applications for the remand of the accused. The approach of the bail court must be to make a determination whether or not the applicant is a good candidate for bail due regard being had to the uncontroverted allegations accepted by the remand court.</p> <p>            The prosecutor led evidence from the investigating officer Detective Assistant Inspector Chipazwo during the bail hearing. He testified in relation to the first applicant that the first applicant was implicated in the offence by an accomplice Fanuel Musakwa. Following that implication and the subsequent arrest of the first applicant in Mbare, police recovered USD6 000 on his person. He led police to his tuck shop where he had hidden USD23 000 in a hole dug in the floor of the tuck shop. He also led police to a house in Mbare where his mother stayed. The sum of USD9 000 was recovered from the mother where the first applicant had left it for safe keeping. The first applicant alleged that the money had been given to him by his brother, one Alfred Shumba who had gone to Murehwa. Alfred Shumba is on the run and police did not find him when they followed on him to Murehwa. The investigating officer testified that the first applicant’s sources of livelihood was through operating the tuck shop.</p> <p>            In relation to the second applicant, the investigating officer testified that the second applicant was a soldier in the Zimbabwe National army based at 5.2 Infantry Battalion situated at Battlefields. Police arrested him in Kwekwe with assistance of military police after the second applicant had resisted arrest by the police and attempted to escape. The second applicant’s workmate also a serving soldier called Artwell Chitera jumped over a durawall and escaped arrest. Following the first applicant’s arrest, the second applicant told the police that he left USD50 000 with his brother for safe keeping at his house in Ushewokunze. The investigating officer testified that the second applicant interfered with investigations in that he instructed his wife and his sister to dig out a hole in which he had hidden the money on the floor of the house. He allegedly also told the two to relocate to some other place. The two then abandoned the house in Ushewokunze and rented another house in Bluff hill. Police arrested the second applicant’s sister and wife and recovered from them USD67 500 which the second applicant had given them for safe keeping. The investigating office testified that the second applicant had told them that his share was USD150 000 and of that only USD67 500 had been recovered.</p> <p>            The investigating officer testified that police were opposed to the grant of bail because their investigations had established that the robbery was committed by an organized gang of armed persons some of whom were yet to be accounted for. About five alleged accomplices were still on the prowl. Police had yet to recover outstanding money and in the case of the first applicant police had only recovered USD38 000. The investigating officer also testified that the state case was strong because apart from recovery of the money believed to be part of the robbery proceeds, the first applicant made indications at the scene on how the robbery was committed and the indications were video tapped. Additionally police recovered the first applicant’s Toyota passo motor vehicle which was alleged to have been used during the commission of the offence. Lastly the investigating officer testified that an accomplice, Wellington Chirara was alleged to have been given USD50 000 for safekeeping. The first applicant was likely to team up with Wellington and likely abscond.</p> <p>            In relation to first applicant the investigating officer under cross examination by the first applicant’s counsel testified that the money recovered from the first applicant was part of the robbery proceeds because it was in USD100 denominations like the stolen money. The investigating officer testified that additionally, there was evidence of implication by co-accused and that it was not coincidence that after implication the applicant was found to be in possession of a large amount in the denominations as the money subject of robbery. The investigating officer denied that the applicant had explained that the money was his.</p> <p>            Under cross examination by counsel for the second applicant, the investigating officer maintained his evidence and the court noted that the cross examination was not eventful. Nothing new came out of it. The investigating officer repeated his evidence that the second applicant attempted to escape arrest but was apprehended with assistance of military police whilst the accomplice Artwell Chitera escaped. He maintained that the second applicant ordered his wife and sister to relocate from their Ushewokunze house and they dug out the hidden robbery proceeds therefrom and rented a house in Bluff hill. The second applicant according to the investigating officer was the driver of the Toyota passo which the second applicant now alleged to belong to his brother. The ownership itself was therefore not important but the use to which the vehicle was put and the user thereof. The user was alleged to be the second applicant. The investigating officer disagreed with the suggestion by the second applicant’s counsel that the amount of USD67 500 recovered from the second applicant’s wife and sister belonged to one Tozivepi. He testified that Tozivepi was arrested in possession of USD70 000 which was his share of the robbery proceeds.</p> <p>            The first applicant in support of his application for admission to bail submitted through his counsel that he did not harbor any intention to endanger the safety of any person or the public generally. He claimed that he co-operated with the police in the investigations upon arrest. He claimed further that the allegations against him were a fabrication. It was submitted that the first applicant had an <em>alibi</em> in relation to his defence in that he was at his work place when the robbery was committed. He claimed to be a businessman who operates a market stall at Magaba Mbare where he sells steel products and owns two trucks which he hires out for money. He admitted that police recovered USD28 900 following a search at his hose. He stated that he has as a man of means and realized the money from his business operations. In regard to the money from recovered his mother, he explained that it belonged to his half brother Alfred Shumba who police still have to arrest. The second applicant also averred that he would not interfere with evidence or state witnesses. He stated in the same vein that if he fell foul of bail conditions, police could always arrest him. The rest of the written application dealt with bail jurisprudence and the presumption of innocence including purposes of bail, the attitude of the police and of the Prosecutor General.</p> <p>            In passing it is well to comment that little purpose is served in a bail applications before a  judge of the High court by the applicant engaging in seeking to school the judge on the law relating to bail applications. Unfortunately counsel are known to do that. The law I think is very clear. What must be emphasized upon in a bail application should be adducing facts which conduce to a finding that the applicant is a good candidate for bail to be granted to him or her. It is not of much use for the applicant to file an application for bail which concentrates on the principles and law on bail unless an issues on what the law is or the application of the law are issues to be determined in the application. If there is no issue, then counsel are guided to concentrate on profiling the applicant as a suitable candidate for bail in the circumstances of the allegations made against him.</p> <p>Section 117 (2) and 117 (3) of the Criminal Procedure and Evidence Act, [<em>Chapter 9:23</em>] provides the guide on what bail applications should cover. Section 117 (2) lists the grounds which if any of them is established to exist in any given case where bail is applied for, the determination that it is not in the interests to grant bail may be made. Subs (3) of s 117 lists the factors which the judge or magistrate dealing with a bail application is required to take into account. Therefore a bail application must deal with the basis or reasons for opposing bail as submitted by the state. If for example the reason for opposing bail is the risk of abscondment, the application should relate to factors which the court must consider in determining whether or not a likelihood that the applicant may abscond has been stablished. The first applicant’s application did not deal adequately with the factors  which the judge is required to take into account. For the avoidance of doubt, s 117 (2) (ii) of the Criminal Procedure and Evidence Act, provides that</p> <p>             “the refusal to grant bail and the detention of an accused shall be in the interests of where one or more of the following grounds are established-</p> <p>            (i)         ……..</p> <p>            (ii)        not stand his or her trial or appear to reserve sentence</p> <p>            (iii)       ……..</p> <p>            (iv)       …….</p> <p>            (b)        ………</p> <p> </p> <p>            Subsection (3) (b) of s 117 then provides in para (b) that in determining whether or not it has been established that the accused is likely not to stand trial, the court shall (own underlining) take into account</p> <p>            “(i)       the ties of the accused to the place of bail</p> <p>            (ii)        the existence and location of any assets held by the accused</p> <p>            (iii)       the accused’s means of travel and his or her possession of or access to travel documents</p> <p>            (iv)       the nature and gravity of the offence or the nature and gravity of the likely penalty therefor;</p> <p>            (v)        the strength of the case for the prosecution and the corresponding incentive of the accused                       to flee</p> <p>            (vi)       the efficacy of the amount or nature of the bail and enforceability of any bail conditions</p> <p>            (vii)      any other factors which in the opinion of the court should be taken into account.”</p> <p> </p> <p>            It is therefore imperative that the above factors are directly addressed by the applicant in the bail application. In <em>casu</em> the applicants were expected to deal with the matters listed above and produce documentary proof where applicable of ownership of assets, savings and such other proof even by affidavit on the said factors. Again as an example the first applicant made a bold allegation that he is of fixed abode and will reside at the “given address”. However the court is required to consider the ties of the applicant to the place of trial. The allegations that the first applicant is of fixed abode is not enough. Consideration must had to the nature of the ties of the applicant to the fixed abode. Is it owned with title deeds or rented and so forth. Full details with supporting documentation should be attached where available and if not available, an explanation for the non- availability should be given. The listed factors to be considered by the court may be split into subheadings and dealt with individually for good order. The first applicant had the onus to show that it is in the interests of justice to grant him bail. The onus cannot even on a balance of probabilities be discharged through bold allegations being made.</p> <p>            In regard to the second applicant, the application was far worse than that of the first applicant in its failure to be guided by the provisions of s 117 (2) (a) (ii) as read with subs (3) (b) of the Criminal Procedure and Evidence Act. The application did not address the factors that the court is required by law to consider in determining whether or not the second applicant was likely to abscond. The application was structured to address the law on bail generally and in relation to abscondment. Reference was made to the cases of <em>S</em> v <em>Jongwe</em> SC 62/02 and <em>S</em> v <em>Ndlovu</em> 2001 (2) ZLR 261 (H) to emphasize on how the risk of abscondment is assessed. The cases do not make specific reference to s 117 (3) which lists the factors which the court is directed to take into account. Some of the factors in these cases dovetail with the ones listed in s 117 (3). However the second applicant left it at that. He did not allege facts which relate to the factors necessary to be considered. The task of the court is to determine whether or not it is in the interest of justice to grant an applicant bail. The applicant must place the court into his confidence and make supported factual allegations to establish the applicants’ suitability for bail. This cannot be done by counsel taking the judge through a lecture on bail law and principles. Although it may sound as a dressing down of counsel for ineptitude, I find myself unable to describe the second applicant’s bail statement otherwise than as an example of how not to prepare a bail statement. There is virtually nothing in the application to build or support the profile of the second applicant as a suitable candidate for bail.</p> <p>            The second applicant came nowhere near discharging the onus reposed upon him by the provisions of s 115 C (2) (ii) (A) of the Criminal Procedure and Evidence Act to show on a balance of probabilities that it is in the interests of justice for the applicant to be granted bail. The failure to address the pertinent factors which the law requires that they be considered meant that the bail application had no foundation to support it and consequently it could not succeed.</p> <p>            The state had in the form 242 raised other grounds to oppose bail namely that the applicants are likely to interfere with the recovery of the outstanding money, subject of robbery. It was alleged therefore that there was a risk of interfering with investigations which also included the recovery of fire arms used in the commission of the robbery. It is not necessary to interrogate the rest of the grounds in view of the finding I make that on the facts alleged and the circumstances of the commission of the offence and the applicants’ bare denials of involvement in the commission of the offence by advancing unsubstantiated <em>alibis</em> which are not clothed by any facts or proof, and the failure to address the factors listed in s 117 (3) the applicants are a flight risk. There is a likelihood that they will abscond especially so given the gravity of the offence and the likely penalty upon conviction which ranges from life imprisonment to a definite term of imprisonment given the circumstances of aggravation which are alleged to be present in that firearms were used in the robbery.</p> <p>            The two applicants have failed to discharge the burden to show that it is the interests of justice to grant them bail. Indeed apart from the risk of abscondment, the circumstances of the commission of the offence going by the uncontroverted allegations of how the robbery was committed and sharing of proceeds of which large amounts of money were recovered from the applicants and such possession requiring explanation, the grant of bail to the applicants as matters stand will undermine the objectives of bail and the criminal justice system. The grant of bail will in such circumstances lead to the public losing confidence in the bail system.</p> <p>            It is therefore ordered that:</p> <p>            1.         The bail applications in regard to Trymore Chapfika B 93/21 and Charles Chirara                          B 107/21 are both dismissed.</p> <p>            2.         Copies of this composite judgment must be filed in each of the two records B 93/21                      and B 107/21.</p> <p> </p> <p> </p> <p> </p> <p><em>Chigoro Law Chambers</em>, 1st and 2nd Applicants’ legal Practitioners</p> <p><em>National Prosecuting Authority</em>, respondent’s legal practitioners</p> </div></div></div><div class="field field-name-field-download field-type-file field-label-above"><div class="field-label">Download:&nbsp;</div><div class="field-items"><div class="field-item even"><span class="file"><img class="file-icon" alt="File" title="application/vnd.openxmlformats-officedocument.wordprocessingml.document" src="/modules/file/icons/x-office-document.png" /> <a href="https://old.zimlii.org/zw/judgment/files/harare-high-court/2021/76/2021-zwhhc-76.docx" type="application/vnd.openxmlformats-officedocument.wordprocessingml.document; length=25990">2021-zwhhc-76.docx</a></span></div><div class="field-item odd"><span class="file"><img class="file-icon" alt="PDF icon" title="application/pdf" src="/modules/file/icons/application-pdf.png" /> <a href="https://old.zimlii.org/zw/judgment/files/harare-high-court/2021/76/2021-zwhhc-76.pdf" type="application/pdf; length=345154">2021-zwhhc-76.pdf</a></span></div></div></div><span class="vocabulary field field-name-field-flynote-sync-local field-type-taxonomy-term-reference field-label-above"><h2 class="field-label">ZimLII Flynote:&nbsp;</h2><ul class="vocabulary-list"><li class="vocabulary-links field-item even"><a href="/tags-local/c">C</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/criminal-law-common-law-crime">CRIMINAL LAW (Common Law Crime)</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/robbery">Robbery</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/criminal-procedure">CRIMINAL PROCEDURE</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/bail-0">Bail</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/application-bail">application for bail</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/conditions-which-bail-granted">conditions on which bail granted</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/grant-bail">grant of bail</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/grounds-refusal-bail">grounds for refusal of bail</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/principles-be-observed-bail">principles to be observed (bail)</a></li></ul></span><div class="field field-name-field-cases-considered field-type-node-reference field-label-above"><div class="field-label">Cases considered:&nbsp;</div><div class="field-items"><div class="field-item even"><a href="/zw/judgment/supreme-court-zimbabwe/2002/62">S v Jongwe (251/2002) ((251/2002)) [2002] ZWSC 62 (07 August 2002);</a></div></div></div><div class="field field-name-field-legislation-considered field-type-node-reference field-label-above"><div class="field-label">Legislation considered:&nbsp;</div><div class="field-items"><div class="field-item even"><a href="/zw/legislation/act/2004/23">Criminal Law (Codification and Reform) Act [Chapter 9:23]</a></div><div class="field-item odd"><a href="/zw/legislation/act/2016/2">Criminal Procedure and Evidence Act [Chapter 9:07]</a></div></div></div> Wed, 03 Mar 2021 13:30:17 +0000 Sandra 9968 at https://old.zimlii.org S v Muroyi (SC 111-20, Civil Appeal No. 188/20) [2020] ZWSC 111 (07 August 2020); https://old.zimlii.org/zw/judgment/supreme-court-zimbabwe/2020/111 <div class="field field-name-body field-type-text-with-summary field-label-hidden"><div class="field-items"><div class="field-item even"><p><strong>DISTRIBUTABLE </strong><strong>   (103)</strong></p> <p> </p> <p><strong>GAILLAH     MUROYI</strong></p> <p><strong>                                                                        v</strong></p> <p><strong>THE     STATE</strong></p> <p> </p> <p> </p> <p> </p> <p> </p> <p><strong>SUPREME COURT OF ZIMBABWE</strong></p> <p><strong>HARARE: JUNE 5 &amp; AUGUST 7 2020.</strong></p> <p> </p> <p> </p> <p> </p> <p>Appellant in person</p> <p> </p> <p><em>R. Chikosha</em>, for the respondent</p> <p> </p> <p> </p> <p><strong>IN CHAMBERS</strong></p> <p> </p> <p><strong>UCHENA JA: </strong>This is an appeal in terms of Rule 67 (1) of the Supreme Court Rules 2018 against the dismissal of the appellant’s bail application by the High Court.</p> <p> </p> <p> </p> <p><strong>FACTUAL BACKGROUND</strong></p> <p>The appellant was arraigned before the magistrate’s court charged with one count of robbery in contravention of s 126 of the Criminal Law (Codification and Reform) Act [<em>Chapter 9:23</em>]. It was alleged that on 7 October 2017 she acting in common purpose with her co accused robbed Wongani Mawola Banda (“the complainant”) of his bank cards and other valuables after their lead team had abducted him from O.K. Fife Avenue, Harare. After committing the offence, some of the accused persons, including the appellant, fled to South Africa while others remained behind and were arrested. The arrested co-accused implicated the appellant.</p> <p>The appellant was arrested when she returned to Zimbabwe in February 2018. She pleaded not guilty to the charge levelled against her. In her defence, she told the trial court that at the time the offence was committed she was in South Africa as she had left Zimbabwe on 5 October 2017. The appellant testified that she returned to Zimbabwe on 3 February 2018. She was given several opportunities over a long time to produce her passport to prove her <em>alibi</em> but she failed to do so. However, photo copies of the relevant pages of her passport were eventually produced by the state. They proved that the appellant crossed the Zimbabwean Boarder going to South Africa on 9 October 2017. On being cross examined on why she testified that she had left the country on 5 October 2017, she pretended that she was not sure of the exact date of her departure.</p> <p> </p> <p> </p> <p>The respondent’s witnesses, particularly, the complainant and one Daniel Bare positively identified the appellant as one of the people involved in the commission of the crime. The complainant identified the appellant because he was with her for several hours during the commission of the offence as she was one of the ladies who remained guarding him whilst their co-accused were going around Harare shopping using his bank cards. Daniel Bare identified the appellant as one of the ladies who sold beer allegedly bought with the complaint’s money to his bottle store.</p> <p> </p> <p>The magistrate’s court held that the appellant’s unsatisfactory excuses concerning the production of her passport as evidence indicated that she did not want to produce it as an exhibit. It also held that the appellant’s attempt to belatedly pretend that she was not sure of her exact date of departure was insincere and affected her credibility as a witness. The Magistrate’s Court further held that the appellant’s <em>alibi</em> was not believable as relevant pages of her passport produced by the state proved that she was in Zimbabwe when the offence was committed. It also held that the appellant was positively identified by the complaint as he was with her for several hours during the robbery. It also found that the testimony of Daniel Bare was credible because it was consistent with the facts and that he had no reason to falsely implicate the appellant.</p> <p> </p> <p>The court further held that the appellant was guilty because she had common purpose with her co-accused in the commission of the offence. It held that the appellant was an active participant in the robbery. Consequently, the appellant was found guilty and convicted. She was sentenced to 10 years imprisonment of which 3 years were suspended for 5 years on condition that, during that period, she does not commit any offence involving dishonesty or violence. Aggrieved by the conviction and sentence imposed on her, the appellant noted an appeal to the High Court. The appeal is still pending.</p> <p> </p> <p>After noting the appeal, the appellant applied to the High Court for bail pending appeal. Her application was dismissed. She appealed against that decision to this Court. Her main arguments were that the magistrate’s court erred when it held that she was positively identified whilst there was conflicting evidence in that regard. She contended that the magistrate’s court had failed to properly assess her <em>alibi.</em> The appellant further argued that in sentencing her the magistrate did not take into consideration the fact that she had not benefitted from the commission of the offence. In response the respondent submitted that the appellant was a flight risk and that the magistrate’s decision on the appellant’s conviction and sentence was unassailable. It further submitted that the court <em>a quo</em> correctly refused to grant the appellant bail pending appeal.</p> <p> </p> <p>The court <em>a quo</em> held that the findings of the magistrate’s court on the appellant’s identification were satisfactory and justified its refusal to release her on bail pending appeal. It also held that from the evidence on record, there was a possibility that the appellant will abscond if granted bail, and that she had failed to prove that she was a proper candidate for bail. The court <em>a quo</em> held that there were no prospects of success against both conviction and sentence. Accordingly, the appellant’s application for bail pending appeal was dismissed.  Aggrieved by the dismissal of her application, the appellant noted an appeal to this Court.</p> <p> </p> <p>In her grounds of appeal the appellant alleged that the dismissal of her application for bail pending appeal by the court <em>a quo</em> should not be allowed to stand because her main appeal has prospects of success. She alleged that the court <em>a quo</em> did not take into consideration her limited knowledge of the law and court procedures. The appellant further alleged that the court <em>a quo</em> failed to critically analyse the evidence placed before it in that it did not comment on the contradictory evidence concerning her identification. She further submitted that the court <em>a quo</em> did not give adequate consideration to her defence of an<em> alibi </em>and that the trial court’s reasons for accepting the evidence of one Daniel Bare and the complainant placing her on the scene of crime was unsatisfactory.</p> <p> </p> <p>The appeal raises two issues for determination</p> <ol> <li>Whether or not the appellant has good prospects of success on appeal against both conviction and sentence?</li> <li>Whether or not the appellant is likely to abscond in light of the gravity of the offence and the sentence imposed?</li> </ol> <p> </p> <p> </p> <p><strong>SUBMISSIONS MADE BY THE PARTIES.</strong></p> <p>The appellant submitted that the court <em>a quo</em> erred in refusing to grant her application for bail pending the determination of her appeal. She submitted that her appeal has good prospects of success and that she was a good candidate for bail. She argued that the court <em>a quo</em> erred by denying her bail pending appeal. She submitted that the evidence relating to her identification was contradictory and unsatisfactory. The appellant submitted that her defence of an <em>alibi</em> was not properly taken into consideration and scrutinised. She averred that if all this was properly considered, it can be established that she is not guilty, therefore her appeal enjoys high prospects of success. She undertook to abide by any bail conditions which the court may impose on granting her bail.</p> <p> </p> <p>The respondent submitted that the appellant’s application was devoid of merit. It submitted that the court <em>a quo </em>correctly refused to grant the appellant’s application for bail pending appeal. The respondent argued that the identification of the appellant was supported by evidence on record from its witnesses who positively identified her. It submitted that the appellant’s defence of an <em>alibi </em>cannot stand as it was contradicted by photocopies of the relevant pages of her passport which proved that she was in Zimbabwe when the offence was committed and that evidence from the complainant and Daniel Bare proved that she participated in the commission of the offence. The respondent argued that the appellant was a flight risk as the record proved that she left the country two days after committing the offence. In light of this, the respondent submitted that the appellant’s appeal against the refusal of bail by the court <em>a quo </em>was devoid of merit and should be dismissed.</p> <p> </p> <p> </p> <p> </p> <p><strong>THE LAW</strong></p> <p>The granting of bail involves an exercise of discretion by the court of first instance.  It is trite that an appellate court will not interfere with the exercise of discretion by a lower court unless there is a misdirection.  It is not enough that the appellate court thinks that it would have taken a different course from the trial court. It must appear from the record of proceedings that there has been an error made in the exercise of discretion by the trial court. It must be proved that it acted on a wrong principle; allowed extraneous or irrelevant considerations to affect its decision or made mistakes of fact or failed to take into considerations relevant matters in the determination of the question before it. See <em>Barros &amp; Anor</em> v <em>Chimponda</em> 1991 (1) ZLR 58 (S); <em>Aitken &amp; Anor</em> v <em>Attorney General</em> 1992 (1) ZLR 249 (S).</p> <p> </p> <p>The purpose of the exercise of discretionary power vested in the court under       s 123 of the Criminal Procedure and Evidence Act [<em>Chapter 9:07</em>] (“the Act”) is to secure the interest of the public in the administration of justice by ensuring that a person already convicted of a criminal offence will appear on the appointed day for the hearing of his/her appeal.  It is for that reason that the Act provides that upon sufficient evidence being availed to justify, a finding that a convicted person is likely not to appear for his/her appeal if released on bail is a relevant and sufficient ground for ordering his/her continued detention pending appeal. See <em>Madzokere &amp; Others v The State</em> SC 08/12.</p> <p> </p> <p>The main factors to consider in an appeal against a refusal of bail brought by a person convicted of an offence are twofold. The first is the likelihood of the appellant absconding. See <em>Aitken, (supra)</em>. The second is the appellant’s prospects of success on appeal in respect of both conviction and sentence. See <em>S v Williams</em> 1980 ZLR 466 (A) at 468 G-H; <em>S v Mutasa</em> 1988 (2) ZLR 4 (S) at 8D; <em>S v Woods</em> SC 60/93 at 3-4; <em>S v McGowan</em> 1995 (2) ZLR 81 (S) at 83 E-H and 85 C-E. Other factors to be taken into consideration are the right of the individual to liberty and the possibility of a lengthy delay before the appeal can be heard. <em>See Mungwira v S</em> HH 216/10.</p> <p> </p> <p><strong>WHETHER OR NOT THE APPELLANT HAS GOOD PROSPECTS OF SUCCESS ON APPEAL AGAINST BOTH CONVICTION AND SENTENCE?</strong></p> <p>The appellant’s contention against conviction and sentence is based on factual findings and evidential issues. The appellant argues that her identification was improperly established as it was premised on contradictory evidence. She also avers that the reasons given for the acceptance of the complainant and Daniel Bare’s evidence are not satisfactory.</p> <p> </p> <p>The court <em>a quo </em>refused to grant the appellant bail pending appeal. The magistrate’s court found that the appellant participated in robbing the complainant, as she was positively identified by the complainant and Daniel Bare. A perusal of the record of proceedings, establishes that these factual findings are insurmountable. The evidence concerning her identification was coherent and corroborated. The complainant was with the appellant for several hours during the commission of the offence, therefore, his positive identification of her cannot be faulted. Further, Daniel Bare also positively identified her and had no motive to falsely implicate her. It is trite that appellate courts are slow to interfere with trial courts on the findings on the credibility of witnesses. This was clearly explained in the case of <em>Beckford v Beckford</em> 2009 (1) ZLR 271 (S), where it was held that:</p> <p>“It is quite clear that the learned Judge made specific findings of fact with regard to the credibility of the parties and their witnesses. As has been stated in a number of cases, an appellate court would not readily interfere with such findings. That is so because the advantage enjoyed by a trial court of observing the manner and demeanour of witnesses is very great. See <em>Arter v Burt</em> 1922 AD 303 at 306; <em>National Employers Mutual General Insurance Association v Gany</em> 1931 AD 187 at 199; and <em>Germani v Herf and Anor </em>1975 (4) SA 887 (AD) at 903 A-D.”</p> <p>In <em>Gumbura v The State</em> SC 78-14, this Court said:</p> <p> </p> <p>“As regards the credibility of witnesses, the general rule is that an appellate court should ordinarily be loath to disturb findings which depend on credibility. However, as was observed in <em>Santam BPK v Biddulph</em> (2004) 2 All SA 23 (SCA), a court of appeal will interfere where such findings are plainly wrong. Thus, the advantages which a trial court enjoys should not be overemphasised. Moreover, findings of credibility must be considered in the light of proven facts and probabilities.”</p> <p> </p> <p> </p> <p>The circumstances under which an appellate court will interfere with the findings of a trial court on the credibility of a witness were articulated in the case of <em>S v Robinson &amp; Others </em>1968 (1) SA 666 (AD) at 675 G-H where Holmes JA said:</p> <p>“A Court of Appeal, not having had the advantage of seeing and hearing the witnesses, is of necessity largely influenced by the trial court’s impressions of them.   Having regard to the re-hearing aspects of an appeal, this Court can interfere with a trial judge’s appraisal of oral testimony, but only in exceptional cases, as aptly summarised in a Privy Council decision quoted in <em>Parkes v Parkes</em> 1921 AD 69 at p 77:</p> <p>‘Of course, it may be that in deciding between witnesses, he has clearly failed on some point to take account of particular circumstances or probabilities material to an estimate of the evidence, or has given credence to testimony, perhaps plausibly put forward, which turns out on more careful analysis to be substantially inconsistent with itself, or with indisputable fact; but except in rare cases of that character, cases which are susceptible of being dealt with wholly by argument, a Court of Appeal will hesitate long before it disturbs the findings of a trial judge based on verbal testimony.’”</p> <p> </p> <p> </p> <p>In light of the above and the strength of the respondent’s opposition to the granting of bail pending appeal, I am satisfied that the appellant has failed to establish a basis for interference with the decision of the court <em>a quo</em>.</p> <p> </p> <p>The appellant’s defence of an<em> alibi</em> is unbelievable and cannot withstand the evidence led to rebut it. She argued that when the offence was committed on 7 October 2017, she was in South Africa as she had gone there on 5 October 2017 and only returned to Zimbabwe on 3 February 2018. This was rebutted by the production of photocopies of the relevant pages of her passport which proved that she passed through the Beitbridge Border Post on 9 October 2017, two days after the commission of the offence. She was positively identified by the complainant who saw her participating in the commission of the robbery. This justifies the court <em>a quo</em>’s decision to refuse to grant her bail pending appeal.</p> <p> </p> <p>It is trite that an appellate court will only interfere with factual findings of a subordinate court where it is alleged and proved that the findings were arrived at irrationally. See <em>Hama v NRZ</em> 1996 (1) ZLR 664 at 670. The appellant did not demonstrate that in refusing her bail pending appeal, the court <em>a quo</em> grossly misdirected itself in its exercise of discretion. In my view, there is no basis to interfere with the court <em>a quo’s</em> exercise of discretion. The appellant has not shown good cause for such interference. In <em>The Attorney General v Siwela</em> SC 20/17, it was stated that:</p> <p>“The power of this Court to interfere with the decision of the court <em>a quo</em> in an application for bail is limited to instances where the manner in which the court <em>a quo</em> exercised its discretion is so unreasonable as to vitiate the decision made. See <em>S v Ncube</em> 2001 (2) ZLR 556 (S). Another ground for interference with a decision of a court<em> a quo</em> is the existence of ‘a misdirection occasioning a substantial miscarriage of justice’ by the court<em> a quo</em> – <em>S v Makombe</em> SC 30/04.”</p> <p> </p> <p> </p> <p> </p> <p>In this case it is difficult to impugn the decision of the court <em>a quo</em>, in finding that there were no prospects of success. The magistrate’s court took into account all factors surrounding the offence before convicting the appellant. There are, therefore, no prospects of success on appeal against both conviction and sentence. The court <em>a quo, </em>therefore, correctly dismissed the appellant’s application for bail pending appeal.</p> <p> </p> <p><strong>WHETHER OR NOT THE APPELLANT IS LIKELY TO ABSCOND IN LIGHT OF THE GRAVITY OF THE OFFENCE AND THE SENTENCE IMPOSED?</strong></p> <p>The appellant undertook to abide by bail conditions to be imposed by the court. She submitted that she is not a flight risk. Based on the evidence on record the court<em> a quo</em> found that she was a flight risk. I agree with the reasoning of the court <em>a quo</em>. In <em>Aitken, supra</em>, it was held that in deciding whether an accused person will abscond if released on bail the following factors constitute a useful guide:</p> <p>“-the nature of the charge and the severity of the punishment likely to be imposed on the accused upon conviction.</p> <ul> <li>the apparent strength or weakness of the state case.</li> <li>the accused’s ability to reach another country and</li> <li>the absence of extradition facilities from that country.</li> <li>The accused’s previous behaviour when previously released on bail; and</li> <li>the credibility of the accused’s own assurance of his intention and motivation to remain and stand trial.  See also <em>S</em> v <em>Jongwe</em> 2002 (2) ZLR 209 (S).”</li> </ul> <p> </p> <p> </p> <p>A reading of the record proves that the appellant fled to South Africa on                  9 October 2017 two days after committing the offence. The appellant came back on                        3 February 2018 believing that the heat had cooled off but was arrested. During the trial, the magistrate gave the appellant several opportunities to produce her passport to prove her <em>alibi</em> but she did not do so, even though her mother and sister who were attending her trial could have assisted her in that regard. Her conduct proved that she did not want to produce it. This affects the reliability of her promise that she will not abscond if granted bail pending the hearing of her appeal.</p> <p> </p> <p>There are on record photocopies of relevant pages of the appellant’s passport which prove that she is a frequent traveller who on occasions spends long periods of time out of the country. This proves that she has means or relatives who are able to sustain her if she on being granted bail, absconds and flee the country. There is, therefore, a possibility that she may abscond if she is granted bail pending appeal. The fact that she has been convicted and has already experienced incarceration, and is fully aware of the sentence imposed are most likely to cause her to abscond. There is, therefore, a high probability that she will abscond if she is released on bail pending appeal. In light of this, the appellant fails the second test as she is a flight risk.</p> <p> </p> <p>The appellant’s appeal against refusal of bail by the court <em>a quo </em>has no merit. It is accordingly dismissed.</p> <p> </p> <p> </p> <p><em>Attorney-General’s Office</em><em>, </em>respondent’s legal practitioners</p> <p> </p> <p> </p> </div></div></div><div class="field field-name-field-download field-type-file field-label-above"><div class="field-label">Download:&nbsp;</div><div class="field-items"><div class="field-item even"><span class="file"><img class="file-icon" alt="File" title="application/vnd.openxmlformats-officedocument.wordprocessingml.document" src="/modules/file/icons/x-office-document.png" /> <a href="https://old.zimlii.org/zw/judgment/files/supreme-court-zimbabwe/2020/111/2020-zwsc-111.docx" type="application/vnd.openxmlformats-officedocument.wordprocessingml.document; length=45864">2020-zwsc-111.docx</a></span></div><div class="field-item odd"><span class="file"><img class="file-icon" alt="PDF icon" title="application/pdf" src="/modules/file/icons/application-pdf.png" /> <a href="https://old.zimlii.org/zw/judgment/files/supreme-court-zimbabwe/2020/111/2020-zwsc-111.pdf" type="application/pdf; length=378022">2020-zwsc-111.pdf</a></span></div></div></div><span class="vocabulary field field-name-field-flynote-sync-local field-type-taxonomy-term-reference field-label-above"><h2 class="field-label">ZimLII Flynote:&nbsp;</h2><ul class="vocabulary-list"><li class="vocabulary-links field-item even"><a href="/tags-local/c">C</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/criminal-law-common-law-crime">CRIMINAL LAW (Common Law Crime)</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/robbery">Robbery</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/criminal-procedure">CRIMINAL PROCEDURE</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/bail-0">Bail</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/appeal-1">appeal</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/conditions-which-bail-granted">conditions on which bail granted</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/grant-bail">grant of bail</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/grounds-refusal-bail">grounds for refusal of bail</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/principles-be-observed-bail">principles to be observed (bail)</a></li></ul></span> Wed, 06 Jan 2021 16:26:35 +0000 Sandra 9964 at https://old.zimlii.org S v Sibanda & Anor (HMA 47-20, CRB DWP 405-6-20 Ref Case B 196-20) [2020] ZWMSVHC 47 (14 September 2020); https://old.zimlii.org/zw/judgment/masvingo-high-court/2020/47 <div class="field field-name-body field-type-text-with-summary field-label-hidden"><div class="field-items"><div class="field-item even"><p> </p> <p> </p> <p>ISMAEL SIBANDA</p> <p> </p> <p>And</p> <p> </p> <p>ANDREW MASANDO</p> <p> </p> <p>versus</p> <p> </p> <p>THE STATE</p> <p> </p> <p> </p> <p> </p> <p> </p> <p>HIGH COURT OF ZIMBABWE</p> <p>ZISENGWE J</p> <p>MASVINGO 2ND SEPTEMBER &amp; 14TH SEPTEMBER, 2020</p> <p> </p> <p>                                                                </p> <p> </p> <p><strong>Bail Appeal</strong></p> <p> </p> <p> </p> <p><em>Mr I. Murambasvina</em>, for the appellants</p> <p><em>Ms M. Mutumhe,</em> for the state</p> <p> </p> <p> </p> <p> </p> <p>ZISENGWE J:            This is an appeal again the decision of the Magistrate Court denying the two appellants bail pending trial. The appeal is brought in terms of s 121(1)(b) of the Criminal Procedure and Evidence, Act [<em>Chapter 9:07</em>] as read with Rule 6(1) of the High Court (Bail) Rules, 1971.</p> <p><strong>The Background Facts</strong></p> <p>The appellants were arrested in Kwekwe on allegations of robbery (contravening section 126 (1) (a) of the Criminal Law (Codification and Reform) Act, [<em>Chapter 9:23</em>]). The allegations constituting the offence are set out in both the charge and the state outline attached to the papers filed of record in this appeal and are to the following effect.</p> <p>That on 26 February, 2020 the two appellants were part of a group of people who teamed up to rob the complainants the latter who at the material time were employees at a certain mining location.</p> <p>The state further alleges that to that end they (i.e. the appellants and their yet to be accounted for accomplices) armed themselves with an assortment of weapons amongst them sjamboks, machetes and axes. Aboard a certain truck, they then proceeded to the mine in question (Ingwenya 61 Mine). </p> <p>Upon arrival they descended on the complainants in one fell swoop, viciously attacking them with the above mentioned weapons before making away with their ill-gotten haul comprising 7 tonnes of gold ore, 200 litres of diesel and a box of explosives.</p> <p>It is alleged that the two appellants (having been recognised and identified by some of the victims) were arrested a short while later in Kwekwe.</p> <p>Their application for bail before the Magistrate Court ended in failure. In that application which was quite brief, the prosecutor opposed the granting of bail and enumerated five grounds for adopting that position, these were:</p> <ul> <li>That the appellants had used dangerous weapons in the course of the robbery</li> <li>That it was in the interests of justice to deny the appellants bail</li> <li>That there was a disconcerting upsurge in cases of this nature</li> <li>That the accused who were described as gold panners were of no fixed abode; and</li> <li>That bail should be refused in the interests of the safety of the public</li> </ul> <p>The appellants who were unrepresented at that stage implored the court to release them on bail to enable them to continue fending for their families. Further without elaborating, they both denied any involvement in the commission of the offence or using any weapons. In addition the 2nd appellant offered that if released on bail he would continue residing at a given address in Kwekwe.</p> <p>In his ruling (which consisted of only two sentences) the Magistrates stated as follows:-</p> <p>“<em>The court is of the view that cases of this nature are on the increase and that accused persons who are placed on remand on such matters are remanded in custody generally for public safety. Hence the court at this point is not moved as t release the accused persons and will remand them in custody pending changing (sic) circumstances in the ….”</em></p> <p> </p> <p> </p> <p> </p> <p>            <strong>The grounds of appeal</strong></p> <p>In attacking the above decision, it was contended that the court below had applied wrong principles in arriving at the same. More particularly it was averred that the Magistrate committed a “gross irregularity” in denying appellants bail without a finding that there were compelling circumstances justifying the same.</p> <p>It was further contended that the Magistrate had failed to apply the guidelines set out in s 117 of the Criminal Procedure and Evidence Act.</p> <p>In amplification of the grounds of appeal, the appellants submitted heads of argument. The thrust of those heads was to stress the following points:-</p> <ol> <li>That the appellants’ constitutional right to be a presumed innocent until proven guilty (Section 70(i) (a)) of the Constitution) was violated.</li> </ol> <p> </p> <ol> <li>That the court <em>a quo</em> appears to have already prejudged the matter and having assumed the duo’s guilt</li> </ol> <p> </p> <ol> <li>That the court <em>a quo</em> appears to have adopted an inflexible approach to incarcerate alleged offenders facing this species of offence</li> </ol> <p> </p> <ol> <li>That the court <em>a quo</em> had failed to strike the proper balance between protecting the individual liberty of the alleged offender on the other hand and the due administration of justice in the other</li> </ol> <p> </p> <ol> <li>That justice is best served by giving the appellants bail with certain conditions.</li> </ol> <p> </p> <p>This appeal is opposed by the State whose attitude is that there was no material misdirection by the court in refusing to admit the appellants to bail. Reference was made to the pervasive menace posed by machete wielding gangs. The upshot of their argument being that the court a quo exercised its discretion properly in denying the appellants bail given that at the material time the country was literally under siege from the marauding gangsters going by the appellation “Mashurugwi”. The corollary being that the court a quo was correct holding that the citizenry deserved protection from them.</p> <p> </p> <p> </p> <p><strong>The issue</strong></p> <p>The main issue is whether there was a material misdirection on the part of the court, apparent or implicit, from its reasons for ruling vitiating its decision.</p> <p>It is trite that the court before whom the original application for bail is made enjoys a discretion (properly exercised) whether or not to admit an alleged offender to bail. Barring a misdirection on the part of the court of first instance, the court of appeal does not interfere with that decision.</p> <p>The words of GOWORA JA (<em>as she then was</em>) in the case of <em>Fradeck Chimwaiche</em> v <em>State </em>SC 18/2013 are instructive:</p> <p>“<em>The granting of bail involves an exercise of discretion by the court of first instance. It is trite that this court would only interfere</em> <em>with the decision of the learned judge in the court a quo if she committed an irregularity or exercised her decision so unreasonably or improperly as to vitiate her decision. The record of proceedings must show that an error has been made in the exercise of discretion, either that court acted on a wrong principle, allowed extraneous or irrelevant considerations to affect its decision or made mistakes of fact, or failed to take into account relevant matters in the determination of the question before it.”</em></p> <p> </p> <p>See also <em>Chivhayo</em> v <em>The State</em> SC 94/95, <em>State</em> v <em>Chikumbirike</em> 1986 (2) ZLR 145 (SC) and <em>State </em>v <em>Ruturi</em> HH 26/03.</p> <p>If no misdirection is found to exist, <em>cadit quaestio</em>. If, however, the decision by the court a quo is afflicted by a material misdirection then the appeal court is at liberty to substitute its discretion for that of the courta quo; <em>State</em> v <em>Ruturi</em> (<em>supra</em>), <em>State</em> v <em>Chikumbirike</em> (<em>supra</em>).</p> <p><strong>Addressing the grounds of appeal</strong></p> <ul> <li><strong>The alleged infringement of the constitutional right to be presumed innocent.</strong></li> </ul> <p>In this regard the appellants allege that the Magistrate committed a grave misdirection in proceeding on the footing which suggests that they (i.e.) appellants have already been convicted and as such deserve to be noted with a “deterrent measure”.</p> <p>More pertinently it was contended as follows by the appellants <em>“It is clear in the mind of the learned trial [Magistrate] in the court a quo that the appellants are GUILTY of the allegation and deserved to be taken away from society. It is a gross misdirection to deny accused persons bail pending trial on such spurious and capricious reasoning. The bail system cannot be used as a deterrent measure or for retributive purposes as doing so is an infringement of an accused person’s constitutional rights</em>.”</p> <p>However during oral arguments in this appeal, counsel was at pains to justify that interpretation given to the Magistrate’s ruling. No basis exists in my view for foisting such an interpretation. The Magistrate neither employed the terms “deterrence” or “retribution” in his ruling nor is that implicit from it.</p> <p>Further s 117 of the Criminal Procedure and Evidence Act permits the court to refuse bail on the basis that the release of the accused might compromise the safety of the public. It provides in subsections (1) (2) and (3) as follows:</p> <p>            <strong>“117 Entitlement to bail</strong></p> <ol> <li>Subject to this section and section 32, a person who is in custody in respect of any offence shall be entitled to be released on bail at any time after he or she has appeared in court on a charge and before sentence is imposed, unless the court finds that it is in the interests of justice that he or she be detained in custody.</li> <li>The refusal to grant bail and the detention of an accused in custody shall be in the interests of justice where one or more of the following grounds are established –</li> </ol> <ul> <li>Where there is a likelihood that the accused, if he or she were released on bail, will-</li> </ul> <ul> <li>Endanger the safety of the public or any particular person or will commit an offence referred to in the First schedule; or</li> <li> </li> <li> </li> <li> </li> </ul> <p>       (b)…</p> <p>(3) In considering the ground referred to in –</p> <p>        (a) subsection (2) (a) (i) has been established, the court shall, where applicable, take into account the following factors, namely-</p> <p>              (i) the degree of violence towards others implicit in the charge against the accused;</p> <p>               (ii) …</p> <p>               (iii) …</p> <p>                (iv) Any other factor which in the opinion of the court should be taken into account</p> <p>    </p> <p>            It is also apparent that the Magistrate in respect of (iv) above (i.e. any other relevant factor) took into account (as he was perfectly entitled to do) the upsurge in cases of violent crimes committed by the so called “Mashurugwi”. Although the Magistrate did not say so in as many words, it is clear that he took judicial notice of the scourge of these machete gangs who reportedly terrorise mining communities and occasionally urban centres. These gangs have in general terms earned a notoriety of their own.  </p> <p> </p> <p>As a general premise, therefore, no misdirection, therefore, can be imputed from having regard to the need to protect the safety of the public. Suffice to say that the argument that the Magistrate did not take guidance from section 117 of the Criminal Procedure and Evidence, Act cannot be sustained.</p> <p> </p> <ul> <li><strong>The alleged failure to individualise appellants’ circumstances</strong></li> </ul> <p>This ground is quite a different matter. Here the complaint is that the Magistrate adopted a blanket or ‘policy’ approach to this species of offences. Such an approach, so the argument goes, amounts not only to a violation of the appellants’ right to be presumed innocent until proven guilty but also goes against s 50 of the Constitution which guarantees bail as a right (save where compelling reasons justifying the refusal of bail exist).</p> <p>I find that there is merit in that argument. By stating that <em>“… accused persons who are placed on remand on such matters are remanded in custody generally for public safety</em>” without anything further, the Magistrate appears to have adopted the rigid position that regardless of the facts, all offenders who are arrested on allegations of robbery in circumstances such as the present should and will not be granted bail.</p> <p>Such an approach, of course is erroneous and indefensible. Not only does it offend the right of an accused to be presumed innocent (until proven guilty by a competent court of law) but it is the very antithesis of s 50 of the Constitution which entitles an accused to bail (save where compelling reasons can be established justifying the refusal of bail).</p> <p>It was incumbent upon the court <em>a quo</em> to, at the very least to demonstrate its appreciation of the various factors and principles at play and how these had a bearing on the appellants’ peculiar set of circumstances and why it was felt that there exist compelling circumstances justifying the refusal of bail.</p> <p>Failure to do so provided ample ammunition to the appellants to attack the ruling on the basis that the court <em>a quo</em> misdirected itself in concluding that in all cases involving the so called “Mashurugwi” bail will be denied. In other words the court appears to have shut its mind to the possibility that within that class of alleged offenders, there may be some who genuinely deserve (for one reason or the other) to be released on bail.</p> <p>A material misdirection therefore occurred warranting the appeal court to have a relook at the facts and exercise its own discretion.</p> <p>Robbery, particularly one committed in the circumstances such as the present one is an extremely serious offense which upon conviction is likely to attract a lengthy custodial sentence.</p> <p>However, cases abound wherein it is stated that the seriousness of any offence alone is not a good ground to deny an accused bail, and the apprehension of abscondment in my view can be allayed by the imposition of appropriate reporting and other conditions.</p> <p>It has not escaped my attention that whereas the prosecutor submitted in the proceedings <em>a quo</em> that appellants are of no fixed above and as such are a serious flight risk, the state outline suggests otherwise. It states that the two reside in the Mbizo suburb of Kwekwe. The exact addresses are given. This probably explain in part how they were quickly tracked down and apprehended.</p> <p><strong>Disposition</strong></p> <p>In the final analysis I am of the view that a fairly substantial bail amount (reflective of the seriousness of the charge) coupled with appropriately stringent reporting (and other) conditions will strike that balance between respecting the liberty of the appellants on the one hand and ensuring the due and proper administration of justice on the other.</p> <p> </p> <p> </p> <p> </p> <p>Accordingly, the following order is hereby given:-</p> <p><strong>Order</strong></p> <p>It is ordered that:-</p> <ol> <li>The appellants appeal against refusal of bail by the Magistrate succeeds and each appellant is granted bail on the following conditions –</li> </ol> <ul> <li>Each appellant to deposit the sum of ZWL$10 000 (ten thousand Zimbabwe dollars) with the Clerk of Court, Gweru.</li> <li>The appellants to reside at House No. 502 Mbizo 5, Kwekwe until the finalisation of this matter.</li> <li>The appellants not to leave the confines of the city of Kwekwe without the express permission of the Investigating Officer of this case until the finalisation of this matter.</li> <li>The appellants to report twice a week on Mondays and Fridays at ZRP Mbizo between 6.00 am and 6.00 pm</li> <li>The appellants not to interfere with State witnesses and/or investigations.</li> </ul> <p> </p> <p><em>Murambasvina Legal Practice</em>, appellants’ legal practitioners   </p> <p><em>National Prosecuting Authority</em>, respondent’s legal practitioners</p> </div></div></div><div class="field field-name-field-download field-type-file field-label-above"><div class="field-label">Download:&nbsp;</div><div class="field-items"><div class="field-item even"><span class="file"><img class="file-icon" alt="File" title="application/vnd.openxmlformats-officedocument.wordprocessingml.document" src="/modules/file/icons/x-office-document.png" /> <a href="https://old.zimlii.org/zw/judgment/files/masvingo-high-court/2020/47/2020-zwmsvhc-47.docx" type="application/vnd.openxmlformats-officedocument.wordprocessingml.document; length=25723">2020-zwmsvhc-47.docx</a></span></div><div class="field-item odd"><span class="file"><img class="file-icon" alt="PDF icon" title="application/pdf" src="/modules/file/icons/application-pdf.png" /> <a href="https://old.zimlii.org/zw/judgment/files/masvingo-high-court/2020/47/2020-zwmsvhc-47.pdf" type="application/pdf; length=426021">2020-zwmsvhc-47.pdf</a></span></div></div></div><span class="vocabulary field field-name-field-flynote-sync-local field-type-taxonomy-term-reference field-label-above"><h2 class="field-label">ZimLII Flynote:&nbsp;</h2><ul class="vocabulary-list"><li class="vocabulary-links field-item even"><a href="/tags-local/a">A</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/appeal-0">APPEAL</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/bail-pending-trial">Bail pending trial</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/criminal-matter-appeal">Criminal matter (Appeal)</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/appeal-magistrates-court">appeal from magistrates court</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/c">C</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/criminal-procedure">CRIMINAL PROCEDURE</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/bail-0">Bail</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/appeal-1">appeal</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/conditions-which-bail-granted">conditions on which bail granted</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/grant-bail">grant of bail</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/grounds-refusal-bail">grounds for refusal of bail</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/principles-be-observed-bail">principles to be observed (bail)</a></li></ul></span><div class="field field-name-field-legislation-considered field-type-node-reference field-label-above"><div class="field-label">Legislation considered:&nbsp;</div><div class="field-items"><div class="field-item even"><a href="/zw/legislation/act/2016/2">Criminal Procedure and Evidence Act [Chapter 9:07]</a></div><div class="field-item odd"><a href="/zw/legislation/act/2004/23">Criminal Law (Codification and Reform) Act [Chapter 9:23]</a></div></div></div> Mon, 21 Sep 2020 21:24:34 +0000 Sandra 9858 at https://old.zimlii.org S v Chin'ono (HH 567-20, B1359-20) [2020] ZWHHC 567 (02 September 2020); https://old.zimlii.org/zw/judgment/harare-high-court/2020/567 <div class="field field-name-body field-type-text-with-summary field-label-hidden"><div class="field-items"><div class="field-item even"><div> <p class="rteright">HH 567-20</p> <p class="rteright">B1359/20</p> <p class="rteright">Ref CRB 6801/20, CRB ACC 77/20, B 1226/20</p> <p> </p> <p class="rtecenter">HOPEWELL CHIN’ONO</p> <p class="rtecenter"> </p> <p class="rtecenter">versus</p> <p class="rtecenter"> </p> <p class="rtecenter">THE STATE</p> <p class="rtecenter"> </p> <p class="rtecenter">HIGH COURT OF ZIMBABWE</p> <p> </p> <p>CHITAPI J</p> <p> </p> <p>HARARE, 27, 28 August and 2 September, 2020</p> <p><strong>Appeal against refusal to grant bail section 121 (1) of Criminal Procedure and Evidence Act </strong><em>[Chapter 9: 07]</em></p> <p> </p> <p><em>N. Nyamakura</em> with <em>T. Mapuranga,</em> for the appellant</p> <p><em>E. Makoto</em> with <em>W. Mabhaudhi,</em> for the respondent</p> <p> </p> <p>CHITAPI J: This is an appeal against the judgment of the learned magistrate N. Nduna Esquire made on 24 August, 2020. In the judgment how on appeal the learned magistrate dismissed the appellant’s application for bail made in terms of s121 (1) (b) as read with the proviso (ii) to subsection (c) of s 116 of the Criminal Procedure and Evidence Act, <em>[Chapter 9: 07].</em> The bail application which was dismissed by the learned magistrate was a second attempt following the dismissal of his initial bail application by the same learned magistrate on 24 July, 2020. An appeal noted against the initial application was dismissed on appeal in a judgment HH 579/20 which I prepared and delivered on 6 August, 2020.</p> <p>In regard to the dismissed follow up application, the appellant relied on the provisions of proviso (ii) to subsection (c) of s 116 which read as follows-</p> <p>“(c) (ii) where an application in terms of section 117A is determined by a judge or magistrate, a further application in terms of section 117A may only be made, whether to the judge or magistrate who has determined the previous application or to any other judge or magistrate, if such application is based on facts which were not placed before the judge or magistrate who determined the previous application and which have arisen or been discovered after the determination. ”</p> <p>In regard to section 117A referred to in the quoted proviso, its provisions read as follows-</p> <p> “(1) Subject to the proviso to section 116; an accused person may at any time apply verbally or in writing to the judge or magistrate before whom he or she is appearing to be admitted to bail immediately or may make such application in writing to a judge or magistrate. ”</p> <p>The rest of the subsections of 117A being subsections 2 to 9 are not relevant to explaining the nature of the application envisaged in subsection 116. I propose to unpack the provisions quoted for guidance where after I will then relate to the facts of the application made before the learned magistrate and the grounds of appeal.</p> <p>The points to note from section 116 is that it is intended to give the person whose bail has been refused an opening or openings to repetition the judge or magistrate to reconsider a decision previously made to deny the accused bail. For such an application to be competent; the application must be based on facts which were not placed before the judge or magistrate who presided over the dismissed prior application. Secondly, the facts relied upon must have arisen or been discovered after the previous determination. In short, the facts which ground the application must not have been available to the accused person at the time of making the prior application and been deliberately withheld or not been pleaded. If such facts are shown to have been available, the accused is not entitled to base the application on the known facts. Thirdly where facts relied upon are discovered after the prior determination, such facts will form a proper ground for determination of the fresh application. The application has now become generally known in legal parlance as a bail application based on changed circumstances.</p> <p>In terms of handling the application, the judge or magistrate before whom such an application is placed for disposal will only assume jurisdiction to determine the application if the applicant established on a balance of probabilities the existence of what may be called new fact which were not placed before the judge or magistrate in the previous determination or been discovered after the determination. What constitutes a new fact is a factual consideration. Such new facts must be related to the circumstances of the case or the applicant. Once the new facts have been alleged, the onus shifts to the prosecution to disprove that the fact or facts are new. The onus on the prosecution is discharged on a balance of probabilities as well. In the case <em>if S v Barros &amp; Ors</em> 2002 (2) ZLR 17 Hlatshwayo J (as then he was) reasoned that the purpose of s 117A was to '"’-obviate the presentation of the same facts or variants thereof, over and over again in a bid to obtain bail and helps in achieving finality in the matter. ” (See p 20 B-C). I agree. However, I would add that the section must be seen as promotive of the rights of an accused person to continue to have access to the court to apply to be liberated from custody unless there exists compelling reasons to deny the accused admission to bail for as long as the accused is in custody pending trial. What invariably happens is that upon being brought to court, certain allegations as ground a reasonable suspicion that the accused person committed the offence charged are made against the accessed and if ruled to ground the reasonable suspicion the accused is placed on remand. If he or she is remanded in a custody a bail application is then made before the remand court or the High Court, the choice being a matter of the jurisdiction of the two courts. If bail is refused, it is denied on the allegations made. The allegations with time will continue to be considered and where they have altered to the extent that the alterations impact on the reasons and/or basis for denying bail in the initial application, the altered facts amount to changed circumstances.</p> <p>Once the applicant has established changed circumstances which are determined as such on a case by case basis, the judge or magistrate will reconsider whether bail should still be granted or continue to be denied given the altered scenario or new facts. In the case of <em>Daniel Range</em> v S, HB 127/04 CHEDA J stated on p 2 of the cyclostyled judgment that</p> <p>“In determining changed circumstances, the court must go further and enquire as to whether the changed circumstances have changed to such an extent that they warrant the release of the suspect on bail without comprising the reasons for the initial refusal of the said bail applications. ” See also <em>Mavabwa</em> v 5 HB 89/18 <em>per</em> MAKONESE J and cases therein cited.</p> <p>A changed circumstance before it can persuade a change of the prior bail refusal must be of such a nature and quality that it impacts substantially on the grounds for the refusal of bail being revisited.</p> <p>The last point I must interrogate is that once the judge or magistrate determines that the facts alleged by the applicant are new or have been discovered after the previous determination, the prosecution’s onus to establish compelling reasons to deny the applicant bail must be discharged before the bail application can again be refused. The onus in this case upon a reading of the provisions of s 115C of the Criminal Procedure &amp; Evidence would be on the prosecution.</p> <p>Reverting to the facts of this matter, they are set out in the judgment of the learned magistrate date 24 July 2020 and repeated in my judgment on appeal case No. HH 519/20. They are further repeated in the judgment of the learned judgment dated 24 August 2020 which is subject to this appeal. There is in such a case no need to regurgitate the facts. It is common cause that the appellant was denied bail on a charge of incitement to commit public violence as defined in s 187 (1) (a) of the Criminal Law (Codification and Reform) Act <em>[Chapter</em> 9: 25] as read with s 36 which defines Public Violence, criminalizes it and provides for a penalty upon conviction.</p> </div> <p>The first point to note is that this matter is on appeal before me. As I pointed in judgment <em>Chin 'ono v State</em> No. HH 519/20, and relying on various judgment which are set out therein, the learned magistrates judgment can only be interfered with if the learned magistrate committed a misdirection or an irregularity or exercised his or her discretion so unreasonably or improperly as to vitiate the decision reached. On appeal the appeal judge is limited to considering the four corners of the record of proceedings on appeal.</p> <p>In <em>casu,</em> the operative part of the learned magistrate’s judgment read as follows:</p> <p>“I accordingly refuse the application and dismiss the bail reapplication on the basis that it is devoid of any new facts or circumstances warranting the court to reconsider its initial decision. ”</p> <p>The long and short of the above finding was that the learned magistrate determined that the provisions of proviso (ii) to s 116 (C) were not satisfied in that there was no change in the situation as it existed when the prior bail application was made and in the follow up dismissal application.</p> <p>The main issue on appeal was therefore whether or not the learned magistrate misdirected himself in making the findings or order he made. If he was misdirected, in law, fact or both then I will assume jurisdiction to reappraise the facts and determine whether bail should be granted. If I agree with the learned magistrate, then the appeal would be dismissed. The appellant in the application made orally before the learned magistrate submitted a number of factors which he said, constituted new or changed facts as follows</p> <p><a name="bookmark0" id="bookmark0"></a>i)    Firstly, that the period that police had indicated as required to complete investigations had passed without a trial date having been allocated for the matter.</p> <p><a name="bookmark1" id="bookmark1"></a>ii)   Secondly, that the 31<sup>st</sup> July 2020 being the date pencilled for the incited demonstrations had come and gone with no incident of either protests or violent demonstrations. The argument made was that the danger which it was feared would take place on 31 July 2020 no longer existed.</p> <p><a name="bookmark2" id="bookmark2"></a>iii)  Thirdly, that there were health concerns obtaining in prisons where appellant is held because COVID 19 W.H.O. protocols were not being observed as would contain the spread of the COVID virus and that the appellant was entitled to his rights to health in terms of s 76 of the Constitution. In this regard, reliance was placed on the case <em>Kettles</em> v <em>State</em> HB 119/20 where the risk of contracting the CO VID virus in prison was considered as a factor to be invoked in favour of granting bail to an accused person.</p> <p>In regard to the non-completion of investigations as undertaken in the Form 242, the learned magistrate in his judgment did not advert to this fact or its relevance and impact as a new factor to be considered. When an accused is brought before the court on initial remand and an application for a remand in custody is made and granted, with bail having been denied, it is a relevant consideration when determining bail to take into account the nature of investigations to be conducted and their complexity as well as the time which the police indicate as the estimated time to complete investigations. The importance of this factor is easily understood if one considers the provisions of s 117 (2) (a) (iii) which provides that it will be in the interests of justice to deny bail where there is a likelihood that the accused will “attempt to influence or intimidate witness or to conceal or destroy evidence, “what is implicit in the quoted text is that where police have had the time they asked for to wrap up investigations, the fear of witness intimidation and concealment of evidence will have been taken care of since investigations would have been completed. In argument before me, the prosecution did not albeit acknowledging that the issue was raised, submit on whether the passage of time was a changed circumstance. The passage of time is always a changed circumstances depending on the circumstances of each case see <em>State</em> v <em>Mathuthu</em> HH 182/17. The passage of time may combine with other factors to constitute a persuasive factor to move the judge or magistrate to consider granting bail to avoid pre-incarceration prejudice without movement in the holding of a trial within a reasonable period as provided for in s 69 of the Constitution. The learned magistrate was misdirected in law in not making a ruling on whether or not the passage of time constituted a new factor warranting a reconsideration of the bail suitability of the appellant. The passage of time would have been considered against the backdrop that the police had undertaken to complete investigations within “3 weeks” as endorsed on the request for remand (Form 242) but had not done so with no explanation given or proferred.</p> <p>The learned magistrate related the passage of time to the key circumstances raised by the appellant that the 31<sup>st</sup> July 2020 had come and gone. The appellant argued that bail had been denied at the initial hearing because it was considered that the date on which the incited demonstrations were pencilled for had come and gone without demonstration. The prosecution argued that the passage of time in this regard was not a new circumstance or fact. The crux of the prosecution argument made before the learned magistrate and persisted on an appeal before me was that, whilst the call for the demonstration was made for that date, the aim was to remove the government from power. It was therefore argued that because the government which was intended to be removed from power was still in power, the proposed violent demonstrations remained pending. The learned magistrate accepted the prosecution argument</p> <p>The learned magistrate stated that the initial decision to deny the appellant bail was not to be restricted to what was intended to be done on 31 July, 2020. He reasoned that the condition precedent to the stoppage of the violent protest which the applicant was accused of fermenting, being the removal of government, had not been achieved. Further he reasoned that the appellant and other “proponents” whom he did not name had not denounced the calling for violent demonstrations. The 31<sup>st</sup> July, 2020 according to the learned magistrate lost its significance. The learned magistrate concluded that the violent demonstrations remained pending and that the demonstrations were to be considered as a process and not an event, He reasoned that the 31<sup>st</sup> July was the date of commencement of the process, Significantly, the learned magistrate stated as follows on page 14 of his judgment.</p> <p>“It is on the pendency of the planned demonstration until the government is removed that the date of 31<sup>st</sup> July, 2020 should be accessed. It therefore remains today as necessary as it was on 22 July 2020 when the initial decision was delivered to limit applicant’s right to liberty. ”</p> <p>The learned magistrate found that the state’s argument on continuity of the intended demonstration pencilled for 31<sup>st</sup> July, 2020 accorded with “common sense and logic. ” In particular, the learned magistrate stated on page 14 of his judgment as follows:</p> <p>“Accordingly, even if that date has passed by, it does not in the totality of facts remove the compelling reason initially advanced by the State so as to found authority for the court to interfere with its previous decision to refuse bail. ”</p> <p>The learned magistrate then dismissed the application and stated as follows:</p> <p>“I accordingly refuse the application and dismiss the bail reapplication on the basis that it is devoid of any new facts or circumstances warranting the court to reconsider its initial decision. ”</p> <p>As already indicated the appellant argues that the learned magistrate erred in fact in dismissing the issue of the passing of 31<sup>st</sup> July, 2020 as an event which amounted to a changed circumstance, A holistic consideration of the previous application and judgment in my view undoubtedly show that the 31<sup>st</sup> July, 2020 was key in that it was demonstration day. I did not find anything from the tweets attributed to the appellant to show that the demonstrations should continue beyond that date. There is no doubt that the tweets were threats to remove ZANU PF from government and by parity of reasoning, the encumbent government through the 31<sup>st </sup>demonstration. The main reason for seeking the removal of government was given in the tweets as that they were looters of public funds who not only rig elections but would have the backing of the judiciary to sanitise the looting and election rigging. Further the tweets complained that citizens were dying in their homes without health care or clean water due to looting and corruption.</p> <p>In the previous judgment, the learned magistrate properly held that the tweets should not be read independently of each other but as a whole. I agreed with this construction or approach in the appeal judgment HH 519/20. The learned magistrate was also correct in his reasoning that by discounting elections as a method of removing government from power, it was reasonable to infer the use of non-constitution means to remove the government. There is however no reference in the tweets nor in the previous ruling to indicate that continuity of demonstrations beyond 31<sup>st</sup> July, 2020 was advocated for. The 31<sup>st</sup> July 2020 was D. Day so to speak. It is a common cause fact that the learned magistrate ought to have taken judicial notice that the nation was on edge on 31<sup>st</sup> July, 2020 because of uncertainly on what would happen in regard to the threatened demonstrations. The government commendably and rightfully addressed the citizenry through media and other communication means to go about their business as usual and not engage in violent demonstrations. I have said that the government acted commendably because it acted by dissuading the citizenry from engaging in public violence which is a punishable crime. The 31<sup>st </sup>July indeed came and is gone. It is certainly a new fact warranting the court to reconsider the previous decision. It is so, despite the fact that the flopping of the demonstrations would not have been attributed to the appellant since he never called them off. It is therefore clear on the evidence that it was all about 3l<sup>st</sup> July 2020 and the fact that nothing happened and the day has passed is a new fact. It is improper in my view for a court to anticipate the future events unless there are definite pointers or plans put in place to happiness in the future, I therefore determine that the learned magistrate was misdirected in fact and consequently in law to hold that the passing of 31<sup>st </sup>July 2020 was not a new circumstances impacting on bail.</p> <p>The ground of appeal relating to the prison conditions was dealt with. I was informed that the appellant had obtained relief in this court in regard to his complaint on prison conditions in which he was lodged in case no. HC 4248/20. I do not consider it necessary to go into depth on that in any detail save to state that the health condition of an accused person is a relevant factor to be taken into account when considering bail in terms of section 117 (4) (e) of the Criminal Procedure and Evidence Act. In regard to this ground of appeal, it was submitted that the learned magistrate erred at law in not considering the lengthy testimony of the appellant which was given in court. In fact the learned magistrate erroneously noted that the appellant had after indicating that he would testify refrained or capitulated from doing so after a ruling was made to record the appellant’s testimony in camera. The learned magistrate commented that the applicant had capitulated because his intended audience had been cleared from the courtroom. In reasoning so, the learned magistrate was misdirected because the appellant in fact gave evidence. It is trite that a judicial officer commits a serious misdirection which vitiates the judgment reached where the judicial officer omits to deal with evidence led and proceeds to give judgment oblivious of such evidence. In this case it was worse because the learned magistrate actually mentioned that there was no evidence led yet there was.</p> <p>Having found that the learned magistrate misdirected himself. I am empowered to interfere with the learned magistrate’s judgment if I consider that this is warranted. Appellants counsel submitted that the appellant was arrested for using his twitter account to reach out to the people. The applicant offered not to use the twitter to incite people or to use it at all. The 31<sup>st</sup> July, 2020 has come and gone. It is a fact that appellant is on remand on reasonable suspicion that his twitter chats constituted an offence. It would be foolhardy for the appellant to apply for bail, be granted bail and go out of prison to do the same thing for which the appellant was arrested and incarcerated. He has in proposed bail conditions in his draft order undertaken not to engage in the use of the twitter account. It appears to me that although the applicant does not consider that he is guilty and has every right to profess his innocence until found guilty, he must desist from further offending or engaging in similar conduct until the charges he presently faces are disposed of.</p> <p>The prosecution submission that the applicant has not accomplished his mission and will persist in inciting people to violently demonstrate as I I have noted is not backed by facts but is an inference. The inference is hardly the only reasonable one which can be drawn. There would need to be evidence of other pointers or facts proving that there is a plan by the appellant to pursue his agenda further through, further incitement. It cannot be said that after the D. Day of 31 July, 2020 passed without incident which clearly meant that the appellant failed to achieve his purpose, he had any plans for follow up demonstrations.</p> <p>The appellant can only continue to be incarcerated without bail if there is shown compelling reasons for his pre-trial detention to be perpetuated in the light of the changed circumstances. I am persuaded that no such compelling reasons can still be said to exist and the interest of justice will be served by the appellant’s admission to bail, however on conditions which are stringent enough to ally fears of the appellant absconding or engaging in the same conduct for which he was arrested. The appellant attached a draft order to his application and the conditions proposed thereon are reasonable. I will adopt them with an upward variation of the bail amount to $10 000. 00 from $5 000. 00 and impose a condition barring him from calling for mass demonstrations through twitter or other means pending the disposal of this case.</p> <p>Accordingly, the following order is made.</p> <p><a name="bookmark3" id="bookmark3"></a>1.   The appeal against the refusal by the court of the Magistrate sitting at Harare to admit appellant to bail on the 24 August 2020 be and is hereby granted. <a name="bookmark4" id="bookmark4"></a></p> <p>2.   The judgment by the Regional Magistrate’s Court, dismissing the applicant’s application for bail pending trial based on changed circumstances handed down on 24 August 2020 is hereby set aside. <a name="bookmark5" id="bookmark5"></a></p> <p>3.   Consequently, the appellant is admitted to bail on the following conditions:</p> <p class="rteindent1">3.1. The appellant shall deposit the amount of ZWL10 000-00 (ten thousand Zimbabwe dollars) with the Clerk of the Regional Court at Harare Magistrate Court.</p> <p class="rteindent1">3.2.             The applicant shall deposit his passport with Clerk of the Regional Court at Harare Magistrate Court.</p> <p class="rteindent1">3.3.           The appellant shall surrender his title deed to the property namely, certain piece of land situate in the district of Salisbury called  [redacted] held under deed of transfer No. [redacted]   to the Clerk of the Regional Court at Harare Magistrate Court.</p> <p class="rteindent1">3.4.         The appellant shall continue to reside at No. [redacted] Harare for the duration of the criminal proceedings.</p> <p class="rteindent1">3.5.               The appellant shall not post on his Twitter handle, namely @daddyhope or create any new twitter account for the use to incite the holding of mass demonstrations for whatever purpose until the case against him is finalized..</p> <p class="rteindent1">3.6.         The appellant shall report at [redacted]     Police Station every Mondays and Fridays between 06.00hrs and 18.00hrs.</p> <p> </p> <p><em>Mtetwa and Nyambirai,</em> applicant’s legal practitioners</p> <p><em>National Prosecuting Authority,</em> respondent’s legal practitioners</p> </div></div></div><div class="field field-name-field-download field-type-file field-label-above"><div class="field-label">Download:&nbsp;</div><div class="field-items"><div class="field-item even"><span class="file"><img class="file-icon" alt="PDF icon" title="application/pdf" src="/modules/file/icons/application-pdf.png" /> <a href="https://old.zimlii.org/zw/judgment/files/harare-high-court/2020/567/2020-zwhhc-567.pdf" type="application/pdf; length=641473">2020-zwhhc-567.pdf</a></span></div></div></div><span class="vocabulary field field-name-field-flynote-sync-local field-type-taxonomy-term-reference field-label-above"><h2 class="field-label">ZimLII Flynote:&nbsp;</h2><ul class="vocabulary-list"><li class="vocabulary-links field-item even"><a href="/tags-local/a">A</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/appeal-0">APPEAL</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/appeal-high-court">Appeal to High Court</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/criminal-matter-appeal">Criminal matter (Appeal)</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/appeal-magistrates-court">appeal from magistrates court</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/appeal-high-court-0">appeal to High Court</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/c">C</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/criminal-procedure">CRIMINAL PROCEDURE</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/bail-0">Bail</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/appeal-1">appeal</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/conditions-which-bail-granted">conditions on which bail granted</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/grant-bail">grant of bail</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/principles-be-observed-bail">principles to be observed (bail)</a></li></ul></span> Thu, 03 Sep 2020 12:53:17 +0000 Sandra 9853 at https://old.zimlii.org S v Kuchata (HH 486-20, B 952/20) [2020] ZWHHC 486 (24 July 2020); https://old.zimlii.org/zw/judgment/harare-high-court/2020/486 <div class="field field-name-body field-type-text-with-summary field-label-hidden"><div class="field-items"><div class="field-item even"><p>OWEN KUCHATA</p> <p>versus</p> <p>THE STATE</p> <p> </p> <p> </p> <p>HIGH COURT OF ZIMBABWE</p> <p>FOROMA J</p> <p>HARARE, 26 June 2020 and 24 July 2020</p> <p> </p> <p> </p> <p><strong>Bail Ruling</strong></p> <p> </p> <p> </p> <p>Applicant in person</p> <p><em>T. Kasema,</em> for respondent</p> <p> </p> <p> </p> <p>            FOROMA J: Applicant was jointly charged with treason as defined in s 20 (1)(b) of the Criminal Law (Codification and Reform) Act [<em>Chapter 9:23</em>] together with 3 other  namely:</p> <p>            (i)         Borman Ngwenya</p> <p>            (ii)        Silas Pfupa and</p> <p>            (iii)       Solomon Makumbe.</p> <p>            The trial commenced but stalled because his co-accused made a constitutional court challenge of their being treated as the applicant’s accomplices as they allegedly claimed that they were involved in the capacity of traps i.e. to say they seemingly participated as accomplices when in truth and in reality they were gathering evidence that applicant was indeed committing treason.</p> <p>            The Constitutional Court challenge is still pending and because the High Court stayed trial pending the determination of the Constitutional issue trial will not continue until the said challenge is determined by the Constitutional Court.</p> <p>            In his application for bail applicant claims that he has never applied for bail to the High Court. Under paragraph 1 of Part C of the application the following question is asked on what grounds do you say the judge should admit you to bail? In response applicant replied as follows: the matter has taken too long to be finalised and that he had also benefited from the Amnesty Clemency Order of 2020.</p> <p>            Although the applicant did not rely on the fact that his co-accused had been granted bail, he in fact raised this in argument at the hearing seeking that he be treated equally.</p> <p>            The State opposed this application quite vehemently.</p> <p>            The onus in this matter is on the applicant to prove that there are exceptional circumstances that exist which in the interests of justice permit his release on bail see s 115 C (2)(a)(ii) B of the Criminal Procedure and Evidence Act [<em>Chapter 9:07</em>]. The section reads as follows:</p> <p>“(2)(a)  where an accused person who is in custody in respect of an offence applies to be admitted to bail before a court has convicted him or her of the offence …..   </p> <p>(ii)        the accused person shall, if the offence in question is one specified in</p> <p>B        Part 11 of the Third Schedule bear the burden of showing on a balance of probabilities that exceptional circumstances exist which in the interests of justice permit his or her release on bail”.  (the underlining is mine).</p> <p>            Treason is an offence specified in Part 11 of the Third Schedule thus it is clear that <em>in casu</em> the onus is on the applicant to show the existence of exceptional circumstances justifying applicant’s release on bail.</p> <p>            In his argument as indicated herein above the applicant submitted that the time it has taken the matter to be finalised has been inordinately long and that his colleagues had been released on bail.</p> <p>            The shift of onus to an applicant in cases of the gravity of those under Part 11 of the Third Schedule to the Criminal Procedure and Evidence Act is a clear demonstration of the legislature’s intention that ordinarily accused persons charged there under ordinarily should be detained pending finalisation of the trial unless exceptional circumstances are proven justifying release on bail. It is clear that the legislature deliberately shifted the onus to prove compelling reasons justifying refusal of bail from the State and imposed the onus to justify release on bail by proof on a balance of probabilities of exceptional circumstances when one is facing Third Schedule Part 11 offences.</p> <p>            The court agrees that the applicant is facing an inherently serious offence which attracts a death penalty on conviction which sentence is a sufficient incentive for the applicant to abscond. As to whether overwhelming evidence exists proving that the accused will be convicted of the offence this court as a bail court cannot express a view apart from noting that the State believes its case to be very strong. However the provisions of s 115 C of the Criminal Procedure &amp; Evidence Act under which the onus of justifying release on bail has been shifted to applicant in a bail application provides an exception to the authority of <em>S</em> v <em>Hussey</em> 1991 (2) ZLR 187 and the line of authorities establishing that the seriousness of the offence on its own cannot be a proper reason for denying an applicant bail. This is clear from the fact that the onus to prove compelling reasons for refusal of bail in the cases where such ratio was established was on the State. On introduction of s 115 C the threshold for the shift of the incidence of onus is reached by reference to the seriousness of the offence only in that once the offence charged is one under Third Schedule Part 11 of the Criminal Procedure &amp; Evidence Act the shift becomes automatic without the additional need to demonstrate the existence of overwhelming evidence against the applicant. While it is not disputed that applicant’s co-accused were granted bail there are proper reasons for him to be treated differently from them by reason of their defence which may not be said to be demonstrably false.</p> <p>            The court is not satisfied that applicant has discharged the onus on him to prove on a balance of probabilities that exceptional circumstances exist which show that it is in the interest of justice that he be granted bail. The reasons applicant put forward do not constitute exceptional circumstances at all. What constitutes exceptional circumstances are reasons so compelling in their nature they are out of the ordinary. The delay in finalising trial though apparently in ordinate <em>in casu</em> is not anything that can be blamed on the State. For that reason it is not a special circumstance in terms of the law.</p> <p>            Accordingly the application for bail is dismissed. </p> <p> </p> <p><em>National Prosecuting Authority</em>, respondent’s legal practitioners</p> </div></div></div><div class="field field-name-field-download field-type-file field-label-above"><div class="field-label">Download:&nbsp;</div><div class="field-items"><div class="field-item even"><span class="file"><img class="file-icon" alt="File" title="application/vnd.openxmlformats-officedocument.wordprocessingml.document" src="/modules/file/icons/x-office-document.png" /> <a href="https://old.zimlii.org/zw/judgment/files/harare-high-court/2020/486/2020-zwhhc-486.docx" type="application/vnd.openxmlformats-officedocument.wordprocessingml.document; length=18889">2020-zwhhc-486.docx</a></span></div><div class="field-item odd"><span class="file"><img class="file-icon" alt="File" title="application/vnd.openxmlformats-officedocument.wordprocessingml.document" src="/modules/file/icons/x-office-document.png" /> <a href="https://old.zimlii.org/zw/judgment/files/harare-high-court/2020/486/2020-zwhhc-486_0.docx" type="application/vnd.openxmlformats-officedocument.wordprocessingml.document; length=18889">2020-zwhhc-486.docx</a></span></div></div></div><span class="vocabulary field field-name-field-flynote-sync-local field-type-taxonomy-term-reference field-label-above"><h2 class="field-label">ZimLII Flynote:&nbsp;</h2><ul class="vocabulary-list"><li class="vocabulary-links field-item even"><a href="/tags-local/c">C</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/criminal-law-common-law-crime">CRIMINAL LAW (Common Law Crime)</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/criminal-procedure">CRIMINAL PROCEDURE</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/bail-0">Bail</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/application-bail">application for bail</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/conditions-which-bail-granted">conditions on which bail granted</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/grant-bail">grant of bail</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/grounds-refusal-bail">grounds for refusal of bail</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/principles-be-observed-bail">principles to be observed (bail)</a></li></ul></span><div class="field field-name-field-legislation-considered field-type-node-reference field-label-above"><div class="field-label">Legislation considered:&nbsp;</div><div class="field-items"><div class="field-item even"><a href="/zw/legislation/act/2004/23">Criminal Law (Codification and Reform) Act [Chapter 9:23]</a></div><div class="field-item odd"><a href="/zw/legislation/act/2016/2">Criminal Procedure and Evidence Act [Chapter 9:07]</a></div></div></div> Wed, 12 Aug 2020 14:56:53 +0000 Sandra 9826 at https://old.zimlii.org S v Chinóno (HH 519-20, B1226/20 X Ref HREP 1226/20) [2020] ZWHHC 519 (06 August 2020); https://old.zimlii.org/zw/judgment/harare-high-court/2020/519 <div class="field field-name-field-download field-type-file field-label-above"><div class="field-label">Download:&nbsp;</div><div class="field-items"><div class="field-item even"><span class="file"><img class="file-icon" alt="PDF icon" title="application/pdf" src="/modules/file/icons/application-pdf.png" /> <a href="https://old.zimlii.org/zw/judgment/files/harare-high-court/2020/519/2020-zwhhc-519.pdf" type="application/pdf; length=847128">2020-zwhhc-519.pdf</a></span></div></div></div><span class="vocabulary field field-name-field-flynote-sync-local field-type-taxonomy-term-reference field-label-above"><h2 class="field-label">ZimLII Flynote:&nbsp;</h2><ul class="vocabulary-list"><li class="vocabulary-links field-item even"><a href="/tags-local/a">A</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/appeal-0">APPEAL</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/criminal-matter-appeal">Criminal matter (Appeal)</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/appeal-magistrates-court">appeal from magistrates court</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/appeal-high-court-0">appeal to High Court</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/c">C</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/criminal-procedure">CRIMINAL PROCEDURE</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/bail-0">Bail</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/appeal-1">appeal</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/conditions-which-bail-granted">conditions on which bail granted</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/grounds-refusal-bail">grounds for refusal of bail</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/principles-be-observed-bail">principles to be observed (bail)</a></li></ul></span><div class="field field-name-field-legislation-considered field-type-node-reference field-label-above"><div class="field-label">Legislation considered:&nbsp;</div><div class="field-items"><div class="field-item even"><a href="/zw/legislation/act/2016/2">Criminal Procedure and Evidence Act [Chapter 9:07]</a></div><div class="field-item odd"><a href="/zw/legislation/act/2004/23">Criminal Law (Codification and Reform) Act [Chapter 9:23]</a></div></div></div> Thu, 06 Aug 2020 18:58:40 +0000 Sandra 9820 at https://old.zimlii.org S v Phiri & Anor (HMA 33-20, B29-20) [2020] ZWMSVHC 33 (10 July 2020); https://old.zimlii.org/zw/judgment/masvingo-high-court/2020/33 <div class="field field-name-body field-type-text-with-summary field-label-hidden"><div class="field-items"><div class="field-item even"><p> </p> <p> </p> <p>EDMORE PHIRI</p> <p>and</p> <p>TATENDA PHIRI</p> <p>versus</p> <p>THE STATE</p> <p> </p> <p> </p> <p> </p> <p> </p> <p>HIGH COURT OF ZIMBABWE</p> <p>MAWADZE J</p> <p>MASVINGO, 3 February &amp; 10 July, 2020</p> <p> </p> <p>                                                                </p> <p> </p> <p><strong>Bail Application</strong></p> <p> </p> <p> </p> <p> </p> <p><strong>T. Mbwachena, for both accused applicants</strong></p> <p><strong>Ms M. Mutumhe, for the state</strong></p> <p> </p> <p> </p> <p> </p> <p> </p> <p>MAWADZE J:           On 3 February, 2020 after hearing arguments from counsel I dismissed the application for bail pending trial by the applicants. I gave my detailed reasons <em>ex tempore </em>on that day.</p> <p>On 6 July 2020 Messrs Hore and Partners wrote to the Registrar requesting for written reasons for dismissing the bail application. Apparently they had not formally assumed agency and were accordingly advised by the Registrar telephonically. Messrs Mawadze (<em>just my name sake)</em> &amp; Mujaya were counsel for the applicants during the bail hearing. On 8 July 2020 Messrs Mawadze &amp; Mujaya renounced agency and Messrs Hore and Partners assumed agency on the same day. The record was then forwarded to me on 9 July, 2020. I now proceed to give the reasons hereunder for dismissing the bail application on 3 February, 2020.</p> <p>The 34 year old 1st applicant resides at No. B 47 Torwood, Redcliff and the 29 year old 2nd applicant resides at no. R 201 Torwood, Redcliff.</p> <p>Both the applicants are jointly charged for contravening section 47(1) of the Criminal Law (Codification and Reform) Act [<em>Cap 9:23</em>] which relates to murder. They both seek bail pending trial.</p> <p>The allegations they are both facing relate to what may be described as gang warfares which are seemingly prevalent in the Kwekwe area.</p> <p>It is alleged that on 1 January 2020 both applicants teamed up with 5 other accused persons who are at large and drove to Torwood Shopping Centre at about 1000 hrs.</p> <p>At the shopping centre they met the now deceased Brilliant Dube who was drinking beer with his brothers. Apparently the applicants and their accomplices had previously had clashes with the now deceased and his brothers. It is alleged that the applicants’ gang decided to confront the now deceased and his brothers violently. During that violence which erupted the now deceased was struck once on the head with an axe and several times all over the body with machetes allegedly by applicants and their accomplices. The now deceased breathed his last as he was being ferried to hospital. His death was due to the fatal injuries inflicted with the axe and machetes. According to the State this incident was witnessed by many people at the shopping centre.</p> <p>The applicants admit that they were indeed in the company of the alleged accomplices on the day in question. They further state that it is their alleged accomplices who were armed with an axe, machetes and knives not themselves. They both confirm that that alleged accomplices confronted the now deceased and his brothers who fled but were pursued.</p> <p>Both applicants alleged that they played no role in this gang fight but simply watched the unfolding tragic drama. They said the two gangs threw stones at each other and the deceased and his brothers fled after being overwhelmed by applicants’ alleged accomplices.</p> <p>The 2nd applicant said he thereafter left for his residence and did not witness what later transpired or how the now deceased was fatally attacked.</p> <p>The 1st applicant said all what he witnessed was that the now deceased’s gang was defeated but did not see how the now deceased was fatally injured.</p> <p>Both applicants deny having a hand in the now deceased’s death, let alone in participating in this gang warfare which erupted on that day.</p> <p>The 1st applicant said on the following day on 2 January, 2020 he proceeded to Gweru to visit his unnamed sick cousin. He said he was away for 3 days after which he came back and was advised that police were looking for him and the police had left their details. The 1st applicant does not explain why he did not proceed to the police thereafter but said he only handed himself to the police on 13 January, 2020.</p> <p>The 2nd applicant said soon after this incident he proceeded to Kadoma/Chegutu area as he is an artisanal miner or gold panner and that he only became aware 8 days later that the police were looking for him. He said he proceeded to the police on 14 January 2020.</p> <p>The applicants are adamant that they did not act in common purpose with their alleged accomplices. They allege they were unarmed unlike their colleagues. In fact both applicants said they should be taken as state witnesses rather than accused persons. The applicants dispute attempting to evade justice but that they voluntarily handed themselves to the police. They said they do not belong to any gang but unwittingly and innocently associated with their colleagues who are at large. In that vein they submitted that they are proper candidates for bail more so as the presumption of innocence operate in their favour.</p> <p>On the other hand the respondent vehemently opposed this application.</p> <p>The respondent stated that the applicants are facing a very serious offence and that the evidence against them is overwhelming as this incident was witnessed by many people.  Further, the respondent stated that both applicants are nomadic artisanal miners (gold panners) who move from one place to another. This would make it difficult for them to be located. In any case the respondent said both applicants went under the radar soon after this incident only to resurface on 13 January, 2020. It is the respondent’s contention that applicants belong to a very violent and feared gang hence they are likely to interfere with the due process and or commit further offences. The respondent fears that the applicants’ due to overwhelming evidence against them are unlikely to stand trial.</p> <p>As has been said before the law as regards to bail application pending trial is a well beaten path. I simply re state it simply for convenience and clarity.</p> <p>The starting point is that in terms of s 50(1) (d) of the Constitution bail is a right which should be enjoyed by any person arrested. This right is only taken away if there are compelling reasons justifying the continued detention of the accused person pending trial.</p> <p>What constitutes compelling reasons has not and cannot be defined with mathematical precision. Each case depends on its own facts and the court has to make a value judgment peculiar to each case. The bottom line however is that the court should always strive to strike a balance between the liberty of an accused person and the interests of justice. Ultimately one of the main objectives is to ensure that the accused person would stand trial without compromising the interests of justice in any manner. The provisions of s 117 of the Criminal Procedure and Evidence Act [<em>Cap 9:07]</em> simply give useful guidelines on the factors the court may consider in dealing with whether there are compelling reasons justifying the denial of bail pending trial. They include inter <em>alia</em> the safety of the public, the propensity to commit further offences, possible interference with evidence or witnesses and the need to ensure proper administration of the criminal justice system. See also <em>S</em> v <em>Banana </em>1994 (2) ZLR 271 (S); <em>S </em>v <em>Jongwe</em> 2002 (2) ZLR 209 (S).</p> <p>It need no emphasis that the applicants are facing an inherently serious offence which invariably attracts a lengthy custodial if they are convicted. However it is trite that the seriousness of an offence alone cannot be the basis to deny an accused person bail pending trial as the presumption of innocence operates in the accused’s favour. It should be considered with other factors if the scale is to tilt against the granting of bail pending trial. See <em>S</em> v <em>Hussey</em> 1991 (2) ZLR 187 (S).</p> <p>I am inclined not to admit both applicants to bail pending trial as the evidence placed before me suggest that they are both unlikely to stand trial. They are flight risk. This finding is not mere conjecture but is borne by the conduct of the applicants soon after the incident.</p> <p>Both applicants confirm that they left their respective residences soon after this incident. They were away for about 2 weeks before their arrests. While the 1st applicant said he was in Gweru visiting a sick relative, his counsel <em>Mr Mbwachena</em> said he was infact engaging in gold panning in Gweru. The 2nd applicant vanished to Chegutu area. Indeed both applicants are self-confessed nomadic gold panners. I am not satisfied that it was mere coincidence that they left their places of abode soon after this incident.</p> <p>The proper administration of our criminal justice system demands that both applicants remain detained pending their trial as at now. I indeed take judicial notice of the prevalence of offenses committed by machete wielding gangs who have become a menace to the welfare and safety of the public. Indeed I take note of similar cases emanating especially from the Kwekwe area where such gangs engage in senseless and fatal brutal fights. These gangs have indeed become a menace to society and those suspected of such conduct should be deprived of their liberty pending trial if the courts are to ensure proper administration of justice. While the applicants plead innocent association they nonetheless confirm that their colleagues were armed with axes, machetes and knives. The exact role of the applicants  is food for the trial court but they were indeed at the scene of crime as per their own admission and the culprits are indeed their colleagues.</p> <p>At this stage the state case is strong. The applicants have behaved in a manner in which this court believes that they are flight risk.</p> <p>It is for these reasons that I dismissed the application for bail pending trial.</p> <p> </p> <p><em>Mawadze and Mujaya</em>, applicants’ legal practitioners</p> <p><em>National Prosecuting Authority</em>, respondent’s legal practitioners</p> <p> </p> </div></div></div><div class="field field-name-field-download field-type-file field-label-above"><div class="field-label">Download:&nbsp;</div><div class="field-items"><div class="field-item even"><span class="file"><img class="file-icon" alt="File" title="application/vnd.openxmlformats-officedocument.wordprocessingml.document" src="/modules/file/icons/x-office-document.png" /> <a href="https://old.zimlii.org/zw/judgment/files/masvingo-high-court/2020/33/2020-zwmsvhc-33.docx" type="application/vnd.openxmlformats-officedocument.wordprocessingml.document; length=19792">2020-zwmsvhc-33.docx</a></span></div><div class="field-item odd"><span class="file"><img class="file-icon" alt="PDF icon" title="application/pdf" src="/modules/file/icons/application-pdf.png" /> <a href="https://old.zimlii.org/zw/judgment/files/masvingo-high-court/2020/33/2020-zwmsvhc-33.pdf" type="application/pdf; length=324611">2020-zwmsvhc-33.pdf</a></span></div></div></div><span class="vocabulary field field-name-field-flynote-sync-local field-type-taxonomy-term-reference field-label-above"><h2 class="field-label">ZimLII Flynote:&nbsp;</h2><ul class="vocabulary-list"><li class="vocabulary-links field-item even"><a href="/tags-local/c">C</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/criminal-law-common-law-crime">CRIMINAL LAW (Common Law Crime)</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/murder">Murder</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/criminal-procedure">CRIMINAL PROCEDURE</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/bail-0">Bail</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/application-bail">application for bail</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/conditions-which-bail-granted">conditions on which bail granted</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/grant-bail">grant of bail</a></li></ul></span><div class="field field-name-field-legislation-considered field-type-node-reference field-label-above"><div class="field-label">Legislation considered:&nbsp;</div><div class="field-items"><div class="field-item even"><a href="/zw/legislation/act/2004/23">Criminal Law (Codification and Reform) Act [Chapter 9:23]</a></div><div class="field-item odd"><a href="/zw/legislation/act/2013/amendment-no-20-constitution-zimbabwe">The Constitution of Zimbabwe Amendment (No. 20) Act, 2013</a></div><div class="field-item even"><a href="/zw/legislation/act/2016/2">Criminal Procedure and Evidence Act [Chapter 9:07]</a></div></div></div> Tue, 28 Jul 2020 08:37:57 +0000 Sandra 9804 at https://old.zimlii.org S v Nyarumbwa & Anor (HMA 20-20, B 89-20 Ref B 84-20) [2020] ZWMSVHC 20 (18 May 2020); https://old.zimlii.org/zw/judgment/masvingo-high-court/2020/20 <div class="field field-name-field-download field-type-file field-label-above"><div class="field-label">Download:&nbsp;</div><div class="field-items"><div class="field-item even"><span class="file"><img class="file-icon" alt="File" title="application/vnd.openxmlformats-officedocument.wordprocessingml.document" src="/modules/file/icons/x-office-document.png" /> <a href="https://old.zimlii.org/zw/judgment/files/masvingo-high-court/2020/20/2020-zwmsvhc-20.docx" type="application/vnd.openxmlformats-officedocument.wordprocessingml.document; length=26377">2020-zwmsvhc-20.docx</a></span></div><div class="field-item odd"><span class="file"><img class="file-icon" alt="PDF icon" title="application/pdf" src="/modules/file/icons/application-pdf.png" /> <a href="https://old.zimlii.org/zw/judgment/files/masvingo-high-court/2020/20/2020-zwmsvhc-20.pdf" type="application/pdf; length=422822">2020-zwmsvhc-20.pdf</a></span></div></div></div><span class="vocabulary field field-name-field-flynote-sync-local field-type-taxonomy-term-reference field-label-above"><h2 class="field-label">ZimLII Flynote:&nbsp;</h2><ul class="vocabulary-list"><li class="vocabulary-links field-item even"><a href="/tags-local/c">C</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/criminal-law-common-law-crime">CRIMINAL LAW (Common Law Crime)</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/robbery">Robbery</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/criminal-procedure">CRIMINAL PROCEDURE</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/bail-0">Bail</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/alteration-bail">alteration of bail</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/application-bail">application for bail</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/conditions-which-bail-granted">conditions on which bail granted</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/grant-bail">grant of bail</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/grounds-refusal-bail">grounds for refusal of bail</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/principles-be-observed-bail">principles to be observed (bail)</a></li></ul></span><div class="field field-name-field-cases-considered field-type-node-reference field-label-above"><div class="field-label">Cases considered:&nbsp;</div><div class="field-items"><div class="field-item even"><a href="/zw/judgment/masvingo-high-court/2017/6">S v Chipetu (HMA 06-17 Case No HC B20/17 ) [2017] ZWMSVH 06 (14 February 2017);</a></div><div class="field-item odd"><a href="/zw/judgment/bulawayo-high-court/2015/83">S v Nyengera (HCB 31-15 ) [2015] ZWBHC 83 (07 April 2015);</a></div><div class="field-item even"><a href="/zw/judgment/harare-high-court/2015/642">S v Katsamba (B 302/15) [2015] ZWHHC 642 (16 July 2015);</a></div></div></div><div class="field field-name-field-legislation-considered field-type-node-reference field-label-above"><div class="field-label">Legislation considered:&nbsp;</div><div class="field-items"><div class="field-item even"><a href="/zw/legislation/act/2004/23">Criminal Law (Codification and Reform) Act [Chapter 9:23]</a></div><div class="field-item odd"><a href="/zw/legislation/act/2013/amendment-no-20-constitution-zimbabwe">The Constitution of Zimbabwe Amendment (No. 20) Act, 2013</a></div></div></div> Thu, 25 Jun 2020 12:42:51 +0000 Sandra 9707 at https://old.zimlii.org S v Chirwa (HB 121-20, HCB 166/20 XREF CRB NO. KK 175/20) [2020] ZWBHC 121 (18 June 2020); https://old.zimlii.org/zw/judgment/bulawayo-high-court/2020/121 <div class="field field-name-body field-type-text-with-summary field-label-hidden"><div class="field-items"><div class="field-item even"><p><strong>LUCKSON CHIRWA</strong></p> <p> </p> <p><strong>Versus</strong></p> <p> </p> <p><strong>THE STATE</strong></p> <p> </p> <p> </p> <p>HIGH COURT OF ZIMBABWE<br /> DUBE-BANDA J<br /> BULAWAYO, 8 JUNE AND 18 JUNE 2020</p> <p> </p> <p><strong>Appeal against Magistrate’s refusal of bail</strong></p> <p> </p> <p><em>N.Ngwenya,</em>for the appellant<br /> <em>Z. Tapera,</em>for the respondent</p> <p> </p> <p><strong>DUBE-BANDA J</strong>:        This is an appeal against the refusal of the Magistrates court, sitting in Kwekwe, to admit the appellant to bail pending the conclusion of his trial which is already on course. Appellant is charged with the crime of contravening section 3(1)(2)(3) of the Gold Trade Act [Chapter 21:04] <em>“</em>unlawful dealing in gold.” It is being alleged that on the 27 January 2020, and at Mbizo 2 shops, Kwekwe, appellant not being a holder of a permit or licence authorising him to deal in gold, unlawfully bought or received 65 grams of gold. In the alternative, he is charged with the crime of receiving stolen property knowing it to have been stolen as defined in section 124(1) of the Criminal Law [Codification and Reform] Act Chapter 9:23. It is being alleged that on the 27 January 2020 and at Mbizo 2 shops, Kwekwe, appellant unlawfully took possession of 65 grams smelted gold knowing it had been stolen or realising that there is a real risk or possibility that it had been stolen.</p> <p>The appellant’s trial has commenced before the Magistrates Court, Kwekwe. Three witnesses have testified. During the trial, and as a result of a postponement of the matter, appellant launched a bail application with the trial court. He sought to be admitted to bail pending the conclusion of his trial. The court <em>a quo</em> refused to admit appellant to bail. For completeness, I reproduce here the ruling of the Magistrate:</p> <p>This is a fifth bail application by the accused on the basis that there are new facts which had not been elicitated in the previous application. It is the state’s averments that there was a risk that accused might interfere with state witnesses and harm the interests of justice.</p> <p>It is trite to note that this application was made two days after this court had made a ruling on an application of a similar nature by the applicant. in the previous application bail was denied on the basis that accused’s 12 year old son who is supposed to be a witness in this case is missing. It is trite to note that the child is still missing and the police according to the state are investigating into the matter.</p> <p>There is a reasonable suspicion that the applicant has already interfered with investigations and the witness who is his son. It would be improper for this court to turn a blind eye to this. I have said this in my previous rulings and I still maintain this position. It cannot be mere coincidence that the witness disappeared at the time the accused is arrested and is questioned and released on instructions to come back as was said by the arresting officer.</p> <p>That the state failed to avail the officer from the Mines and Minerals Act cannot be said to be a new fact especially considering that the state had indicated that such a witness can only be availed in two weeks.</p> <p>The state has not yet closed its case and such releasing the accused will be tantamount to defeating the course of justice.</p> <p>It is therefore this court’s contention that there are no changed circumstances that warrant the release of accused on bail.</p> <p>The application for bail is dismissed.</p> <p> </p> <p>Appellant being aggrieved by the refusal to admit him to bail, noted an appeal to this court. In his grounds of appeal, he complains that:</p> <ol> <li>The learned magistrate erred and misdirected herself in refusing to admit to bail appellant to bail pending trial by paying lip service to appellant’s merits. The learned magistrate did not give due consideration to the fact that trial was being inordinately delayed by the respondent which requested postponement as it sought to bring in a new unknown witness from the ministry despite the fact that all witnesses whose statements were given to appellant had tendered their evidence.</li> <li>The learned magistrate erred and misdirected herself in refusing to admit to bail appellant to bail pending trial by ignoring appellant’s fundamental right to personal liberty. Indeed it cannot be a just cause to deny bail pending trial for more than four months over non-violent alleged offence which is not a 3rd Schedule while appellant is the sole bread winner of his family. Appellant’s right to be presumed innocent until proven guilty was rendered academic because appellant’s continued incarceration.</li> <li>The learned magistrate erred and misdirected herself in refusing to admit to bail appellant to bail pending trial on the basis that the child was missing. This is not a compelling reason to refuse appellant bail since had not been in his custody. As a matter of fact, the child disappeared whilst he was in prison. It is ironic that <em>Munhungeyi Mtisi</em> who had custody of the child would be granted bail for defeating or obstructing the course of justice whilst appellant languishes in prison.</li> </ol> <p> </p> <p>The admission of appellant to bail is opposed by the State. The opposition is anchored on two grounds. These are: appellant is likely to abscond and that he has a propensity to interfere with witnesses.</p> <p>The issue now before this court is whether the magistrate misdirected herself in refusing to admit the appellant to bail. The answer to this issue must be located in the judgment of the court <em>a quo</em>. See <em>S </em>v <em>Malunjwa </em>2003(1) ZLR 275(H); <em>S </em>v <em>Ruturi </em>HH23-03). Put differently<em>, </em>the question that falls for decision in this court is whether, on the facts before it, the court <em>a quo </em>erred or misdirected itself in denying the appellants bail. In order for this court to make a determination on the issue, it is restricted to the reasons for the judgment rendered by the court <em>a quo</em>.</p> <p>The legislative framework and jurisprudence in this jurisdiction shows that the entitlement to bail exists as of right. It is a constitutional right, its enjoyment can only be limited if exceptional circumstancesare established. The legislature, in section 117 of the Criminal Procedure and Evidence Act set out circumstances in which the right to bail could be forfeited. See <em>Michael Mahachi v The State </em>HH 4-19.</p> <p>Where the court refuses to admit an accused to bail, it can only do so if the grounds set out in section 117 of the Criminal Procedure and Evidence Act have been met. Section 117 (2) (a) (iii) provides that the refusal to grant bail and the detention of an accused in custody shall be in the interests of justice where one or more of the following grounds are established— attempt to influence or intimidate witnesses or to conceal or destroy evidence. Section 117 (3) provides that in considering whether the ground referred to in— subsection (2)(<em>a</em>)(iii) has been established, the court shall take into account—  whether the accused is familiar with any witness or the evidence;whether any witness has made a statement; whether the investigation is completed; the accused’s relationship with any witness and the extent to which the witness may be influencedby the accused.</p> <p>The court <em>a quo </em>in its ruling made a factual finding that there is a reasonable suspicion that the applicant has already interfered with investigations and the witness who is his son.  It cannot be mere coincidence that the witness disappeared at the time the accused is arrested and is questioned and released on instructions to come back as was said by the arresting officer. The court<em> a quo</em> made this factual finding on the basis of the evidence placed before it. Again, the court <em>a quo </em>is entitled in terms of the legislation in this jurisdiction, to refuse bail on the grounds that there has been an attempt to influence or intimidate witnesses. The witness, a twelve year old son of the appellant has disappeared. The accused relationship with his son, makes it possible that he may influence him. I do not perceive any misdirection in the court<em> a quo’s</em> finding, and none has been shown.</p> <p>The court <em>a quo</em> further reasoned that the allegation that the state failed to avail an officer from the Mines and Minerals department cannot be said to be a new fact especially considering that the state had indicated that such a witness can only be availed in two weeks. The court<em> a quo </em>correctly observed that the state has not yet closed its case, meaning it can call witnesses until such time that the prosecution case is closed. I do not see any misdirection in this respect. </p> <p>Furthermore, I make the observation that the court <em>a quo</em> is properly seized with the trial of the appellant. The trial is on course. Three state witnesses have testified so far, and more are expected to testify. The court <em>a quo</em> is seized in the atmosphere of the trial. It is the court<em> a quo </em>that is better positioned to weigh and understand whether it is indeed in the interests of justice to release the appellant on bail at this stage. However,I accept that this court can intervene in the interests of justice, though I take the view that such intervention, when the trial is on course, must the exception rather than the norm. Worse still, as in this case, where this court has not been furnished with a record of proceedings from the court <em>a quo</em>, this court must be very slow to disrupt the proceedings in the trial court. Let the trial run its course, without interference from this court, unless grave injustice is likely to occur. None has been shown in this case.</p> <p><strong>Disposition </strong></p> <p>There was overall no misdirection on the part of the trial magistrate in finding that the accused was not a suitable candidate for bail. In the result:-</p> <p>The appeal is dismissed.</p> <p> </p> <p> </p> <p> </p> <p><em>C. T. Mugabe and associates c/o T J. Mabhikwa &amp; Partners, </em>appellant’s legal practitioners<br /> <em>The National prosecuting Authority, </em>respondent’s legal practitioners</p> </div></div></div><div class="field field-name-field-download field-type-file field-label-above"><div class="field-label">Download:&nbsp;</div><div class="field-items"><div class="field-item even"><span class="file"><img class="file-icon" alt="File" title="application/vnd.openxmlformats-officedocument.wordprocessingml.document" src="/modules/file/icons/x-office-document.png" /> <a href="https://old.zimlii.org/zw/judgment/files/bulawayo-high-court/2020/121/2020-zwbhc-121.docx" type="application/vnd.openxmlformats-officedocument.wordprocessingml.document; length=21487">2020-zwbhc-121.docx</a></span></div><div class="field-item odd"><span class="file"><img class="file-icon" alt="PDF icon" title="application/pdf" src="/modules/file/icons/application-pdf.png" /> <a href="https://old.zimlii.org/zw/judgment/files/bulawayo-high-court/2020/121/2020-zwbhc-121.pdf" type="application/pdf; length=308483">2020-zwbhc-121.pdf</a></span></div></div></div><span class="vocabulary field field-name-field-flynote-sync-local field-type-taxonomy-term-reference field-label-above"><h2 class="field-label">ZimLII Flynote:&nbsp;</h2><ul class="vocabulary-list"><li class="vocabulary-links field-item even"><a href="/tags-local/c">C</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/criminal-procedure">CRIMINAL PROCEDURE</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/bail-0">Bail</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/appeal-1">appeal</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/application-bail">application for bail</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/conditions-which-bail-granted">conditions on which bail granted</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/grant-bail">grant of bail</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/grounds-refusal-bail">grounds for refusal of bail</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/principles-be-observed-bail">principles to be observed (bail)</a></li></ul></span><div class="field field-name-field-cases-considered field-type-node-reference field-label-above"><div class="field-label">Cases considered:&nbsp;</div><div class="field-items"><div class="field-item even"><a href="/zw/judgment/harare-high-court/2003/26">S v Ruturi ( HH 26-2003) [2003] ZWHHC 26 (11 May 2003);</a></div><div class="field-item odd"><a href="/zw/judgment/harare-high-court/2018/4-0">S v Mahachi (HB 4-19, B1645/18) [2019] ZWHHC 4 (23 November 2018);</a></div></div></div><div class="field field-name-field-legislation-considered field-type-node-reference field-label-above"><div class="field-label">Legislation considered:&nbsp;</div><div class="field-items"><div class="field-item even"><a href="/zw/legislation/act/2004/23">Criminal Law (Codification and Reform) Act [Chapter 9:23]</a></div><div class="field-item odd"><a href="/zw/legislation/act/2016/2">Criminal Procedure and Evidence Act [Chapter 9:07]</a></div></div></div> Thu, 25 Jun 2020 09:29:50 +0000 Sandra 9703 at https://old.zimlii.org S v Maseko (HB 122-20, HCB 121/20 XREF CRB GNDP 296-99/20) [2020] ZWBHC 122 (18 June 2020); https://old.zimlii.org/zw/judgment/bulawayo-high-court/2020/122 <div class="field field-name-body field-type-text-with-summary field-label-hidden"><div class="field-items"><div class="field-item even"><p><strong>BLESSED MASEKO</strong></p> <p><strong>Versus</strong></p> <p><strong>THE STATE</strong></p> <p> </p> <p>HIGH COURT OF ZIMBABWE</p> <p>DUBE-BANDA J</p> <p>BULAWAYO, 18 JUNE 2020</p> <p> </p> <p><strong>Bail pending trial</strong></p> <p> </p> <p><em>M. Ncube, </em>for the applicant</p> <p><em>N. Ngwenya, </em>for the respondent</p> <p> </p> <p><strong>DUBE-BANDA J:    </strong>This is an application for bail pending trial. Applicant is being charged with the crime of murder as defined in section 47 of the Criminal Law [Codification and Reform] Act [<em>Chapter 9:23]</em>. On the 29 April 2020, applicant appeared before the Gwanda Magistrates Court, whereupon he was placed on remand and detained in custody. Since the applicant is facing a murder charge, an offence specified in the Third Schedule, the magistrate had no jurisdiction, with the personal consentof the Prosecutor – General, to entertain hisbail application. This is so in terms of section 116 (c) (iii) of the Criminal Procedure and Evidence Act [Chapter 6.09], (the Act) which provides that a magistrate shall not, without the personal consent of the Prosecutor-General, admit a person to bail or alter a person’s conditions of bail in respect of an offence specified in the Third Schedule.He was then advised to make his bail application before this court.</p> <p>The allegations from which the charge of murder arises are set out in the Police Form 242, commonly called a Request for Remand Form. It states that:-</p> <p>On the 23rd and 5th days 0f April 2020 at Thandabantu store, Mtshabezi turnoff, Gwanda the accused persons were acting in concert with a common purpose manhandled the deceased and they assaulted him all over the body with open hands, booted feet, pieces of farm and block bricks, switches and logs killing him in the process. The accused then left the body of the deceased lying in the bush on the 25th day of April 2020 after he had been found missing at his family home. The body had injuries on the head, face and swollen neck and chin.</p> <p>According to Form 242, there is evidence linking the accused to the commission of the offence. First, it is alleged that the applicant was positively identified by witnesses from the scene. Second, it is alleged that the applicant made indications at the scene corroborating facts observed there at. Third, it is said, pieces of farm and cement brinks used to assault the deceased together with a log were recovered and identified by witnesses.</p> <p>The investigating officer, deposed to an affidavit opposing the admission of the applicant to bail. In the main, the grounds for opposition are summarised in section C of Form 242. It is alleged that the accused is facing a very serious offence which calls for capital punishment in the event of a conviction; most of the witnesses originate from the accused’s neighbourhood and it is likely that they will interfere; two of the accused persons are still outstanding and they are in constant liaison with the arrested accused and when on bail they may prejudice their location and arrests; the accused persons have no formal employment to earn a living; and the deceased’s aggrieved family are neighbours to the accused and due to the traumatic disposition, violence may occur in the event of revenge against either party.</p> <p>Respondent is not opposed to the applicant being admitted to bail pending trial. In its response, respondent makes the following points:</p> <ol> <li>In terms of section 50(1)(d) of the Constitution, any person who is arrested must be released unconditionally or on reasonable conditions pending trial unless there are compelling reasons justifying their continued detention. See <em>S v Munsaka</em> HB 55/16. Incarceration pending trial is an exception which is only justifiable where it is shown that there are compelling reasons for the applicant’s continued detention.</li> <li><em>In</em> <em>casu,</em> the respondent has had an opportunity to go over the investigating officer’s affidavit and will concede that the reasons advanced in opposition of bail are not compelling enough to warrant denial of bail. It is common cause that the applicant was arrested at his homestead four days after the commission of the offence. This is an indicator that he never attempted to flee from the area nor is this alleged by the investigating officer in her affidavit.</li> <li>The applicant is jointly charged with three other persons and it is not clear what role he played in the demise of the deceased. The respondent has sought clarity on this issue from the police and it is said that statements are yet to be recorded.</li> <li>In light of the defence that the applicant is proffering and the circumstances of this case that it was a gang attack by a number of people against the deceased who was drunk and acting violently it cannot be argued that the state has a strong case as against the applicant.</li> <li>It is the respondent’s submission that it would be in the interests of justice if applicant were to be admitted to bail pending trial.</li> </ol> <p>The allegations against the appellants are serious and grave. Applicant still has the presumption of innocence in his favour. Again, the seriousness of the allegations standing alone is no basis of refusing to admit a person to bail.</p> <p>I do agree that he is not a flight risk. According to the respondent, applicant has been aware of these charges and he remained in his homestead for four days preceding his arrest. He did not attempt to flee.</p> <p>If there is evidence that the accused is not a good candidate for bail, let such evidence be placed before court in order of a just decision to be made in accordance with the law. In the absence thereof, the court will have to rule on the basis of what is available before it.</p> <p>Refusing a person admission to bail is a serious matter. It is a serious inroad into the right to liberty. It must be taken serious, because it is serious. If the prosecution makes a concession, the court is not bound by such concession, but must give it due consideration. It is the prosecution that has got the docket to the investigations. It is the prosecution that communicates with the investigating authorities.</p> <p>The prosecution has not placed the applicant within the ambit of section 1(d) of the Third schedule to the Criminal Procedure and Evidence Act [chapter 9:07] which says an accused charged with murder, where — the offence was committed by a person, group of persons or syndicate acting in the execution or furtherance of a common purpose or conspiracy, shall bear the<em> onus</em> to show that it is in the interests of justice that he be admitted to bail. Therefore, the <em>onus </em>is on the prosecution. It concedes that it has not discharged the <em>onus </em>to show that the applicant is not a good candidate for admission to bail at this stage.</p> <p>I did not cause this matter to be set-down for argument because of the view that I take, that the concession by the prosecution has been properly made. Although I hold the view that section 50(1)(d) of the Constitution is not the appropriate provision to anchor a bail application at this stage, nothing turns on this point.</p> <p> I take the view that, on the facts of this case, the concession, that the applicant is a good candidate for admission to bail, has been properly taken and I accept it. In conclusion, I find that it is in the interests of justice to release applicant on bail pending trial.</p> <p><strong>Disposition </strong></p> <p>            In conclusion, I find that it is in the interests of justice that the applicant be released on bail. In the result, applicant is admitted to bail on the following conditions:</p> <ol> <li>That he deposits a sum of $1000.00 with the Clerk of Court, Gwanda, Magistrate’s Court.</li> <li>That he reports once in two weeks at Mkwidze Police Base, between 6 a. m and 6 p.m. until this matter is finalised.</li> <li>That he resides at John Maseko’s homestead, Manongwe Village, Chief Masuku, Gwanda, until this matter is finalised.</li> <li>That he does not interfere with State witnesses.</li> </ol> <p> </p> <p><em>T.J. Mabhikwa and Partners</em><em>, </em>applicant’s legal practitioners</p> <p><em>National Prosecuting Authority</em>, respondent’s legal practitioners </p> <p> </p> <p> </p> </div></div></div><div class="field field-name-field-download field-type-file field-label-above"><div class="field-label">Download:&nbsp;</div><div class="field-items"><div class="field-item even"><span class="file"><img class="file-icon" alt="File" title="application/vnd.openxmlformats-officedocument.wordprocessingml.document" src="/modules/file/icons/x-office-document.png" /> <a href="https://old.zimlii.org/zw/judgment/files/bulawayo-high-court/2020/122/2020-zwbhc-122.docx" type="application/vnd.openxmlformats-officedocument.wordprocessingml.document; length=20079">2020-zwbhc-122.docx</a></span></div><div class="field-item odd"><span class="file"><img class="file-icon" alt="PDF icon" title="application/pdf" src="/modules/file/icons/application-pdf.png" /> <a href="https://old.zimlii.org/zw/judgment/files/bulawayo-high-court/2020/122/2020-zwbhc-122.pdf" type="application/pdf; length=308483">2020-zwbhc-122.pdf</a></span></div></div></div><span class="vocabulary field field-name-field-flynote-sync-local field-type-taxonomy-term-reference field-label-above"><h2 class="field-label">ZimLII Flynote:&nbsp;</h2><ul class="vocabulary-list"><li class="vocabulary-links field-item even"><a href="/tags-local/c">C</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/criminal-law-common-law-crime">CRIMINAL LAW (Common Law Crime)</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/murder">Murder</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/criminal-procedure">CRIMINAL PROCEDURE</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/bail-0">Bail</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/application-bail">application for bail</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/conditions-which-bail-granted">conditions on which bail granted</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/grant-bail">grant of bail</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/principles-be-observed-bail">principles to be observed (bail)</a></li></ul></span><div class="field field-name-field-cases-considered field-type-node-reference field-label-above"><div class="field-label">Cases considered:&nbsp;</div><div class="field-items"><div class="field-item even"><a href="/zw/judgment/bulawayo-high-court/2016/258">S v Munsaka (HB 55/16, HCB 10/16) [2016] ZWBHC 258 (25 February 2016);</a></div></div></div><div class="field field-name-field-legislation-considered field-type-node-reference field-label-above"><div class="field-label">Legislation considered:&nbsp;</div><div class="field-items"><div class="field-item even"><a href="/zw/legislation/act/2004/23">Criminal Law (Codification and Reform) Act [Chapter 9:23]</a></div><div class="field-item odd"><a href="/zw/legislation/act/2016/2">Criminal Procedure and Evidence Act [Chapter 9:07]</a></div><div class="field-item even"><a href="/zw/legislation/act/2013/amendment-no-20-constitution-zimbabwe">The Constitution of Zimbabwe Amendment (No. 20) Act, 2013</a></div></div></div> Thu, 25 Jun 2020 09:12:22 +0000 Sandra 9702 at https://old.zimlii.org