decision of High Court on bail https://old.zimlii.org/taxonomy/term/10150/all en S v Ncube (HB 08-20, HCB 290/19) [2020] ZWBHC 8 (13 November 2019); https://old.zimlii.org/zw/judgment/bulawayo-high-court/2019/8 <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>LAWRENCE NCUBE</strong></p> <p> </p> <p> </p> <p><strong>Versus </strong></p> <p> </p> <p> </p> <p><strong>THE STATE</strong></p> <p> </p> <p>IN THE HIGH COURT OF ZIMBABWE</p> <p>MOYO J</p> <p>BULAWAYO 13 NOVEMBER 2019</p> <p> </p> <p> </p> <p><strong>Bail Application</strong></p> <p> </p> <p> </p> <p><em>M Nxumalo, </em>for the applicant</p> <p><em>B Gundani, </em>for the Respondent</p> <p> </p> <p>                <strong>MOYO J</strong>:       This is an application for bail pending appeal which I heard on 13 November 2019 and dismissed in an <em>ex tempore</em> judgment primarily for lack of prospects of success.  Applicant’s counsel has since requested for written reasons for my judgment and I provide them herein.</p> <p>            The applicant was convicted of rape as defined in section 65 (1) of the Code.  The allegations were that on the 29th of May and at Maudie Sibanda’s homestead, village 2B, Dundubala, Insuza, the accused unlawfully and intentionally had sexual intercourse twice with Isabel Sibanda a female juvenile aged 12 years and incapable of consenting to such an act.  The accused and complainant were related, the accused being complainant’s uncle and they resided at the same homestead, that is, Maudie Sibanda’s homestead.  On the day in question the complainant and her sister Lindokuhle Sibanda were sent by their grandmother to their aunt’s place of residence.  They played at their aunt’s place until late and their grandmother then decided to go and look for them.  The complainant and her sister used a different route back home from the aunt’s place so their grandmother did not find them.  When they got to their home, the accused called them to his bedroom hut and told them that they should stay there and be silent because their grandmother wanted to assault them.</p> <p>            When the grandmother later arrived, accused told her that the complainant and her sister were at their aunt’s place.  The accused then shared his bedroom hut with the complainant and her sister.  He slept next to the complainant.  The accused then had sexual intercourse with the complainant without her consent.  The accused had sexual intercourse again later in the night with the complainant without her consent.  The matter came out on 30 May 2015 when the complainant’s grandmother asked the complainant where they had slept and the complainant then told her aunt the allegations that accused raped her.  The accused person in his defence stated that he shared the bedroom hut with the children but did not rape the complainant and that their grandmother beat them up and forced them to lie against him because he had accommodated the children at night in his bedroom hut.  In his notice of appeal, the applicant raised the following issues:</p> <ol> <li>That the court <em>a quo</em> erred by basing its conviction on the evidence of a single child in circumstances where the trial court is not shown to have been alive to the need to exercise caution in evaluating such evidence, given the dangers attendant to the acceptance of single witness evidence in sexual offences.This issue has not been married to the facts in the court record by applicant’s counsel in his own submission.</li> </ol> <p>In any event it is trite that in criminal law, a court can competently convict on the evidence of a single witness especially where there is corroboration like in this case.  The medical report does corroborate the sexual complaint as there are tears in the hymen and the doctor concluded that penetration was effected.  Lindokuhle Sibanda corroborates complainant’s evidence that they slept in accused’s bedroom and that they were beaten for that.  However, her evidence vitiates collusion in that she does not then say she witnessed the rape, which she certainly did not witness as she was asleep.  Lindokuhle even says she does not know why accused was arrested by the police.  At page 31 of the court record, the learned magistrate carefully examines complainant’s evidence.  I do not know whether defence counsel wanted the learned magistrate to state that “I am now hereby exercising caution, as exercising caution is a careful exam in action of the facts and not necessarily mentioning that term.”  In any event, there is corroboration by the medical affidavit.</p> <p>The second ground of appeal is that the court erred by convicting where a complaint was extracted through prompting, probing questioning and physical violence.  I am not convinced that these 4 terms used by applicant’s counsel as the means to extract the complaint have all been proven factually in the court record.  The complainant’s testimony at page 6 of the court proceedings in the court <em>a quo</em> shows that the granny assaulted the complainant to reveal where they had put up for the night not to reveal what happened to them.  These in my view are 2 different things that defence counsel unnecessarily wants to bundle together to create confusion.  The aunt (and not the grandmother then asked if they had just slept in accused’s room).  She then told her what accused had done to her during the night.  I have not seen from these facts, probing, prompting, physical violence used to extract the complaint, that is, if the court record were to be taken for what it is.  Even Lindokuhle told the court that they were beaten for putting up in accused’s bedroom.</p> <p>In the case of <em>Mandebvu</em> v <em>The State</em> HH 96-11 the accused was convicted of 2 counts of having sexual intercourse with a minor.  He appealed against conviction and sentence.  The complainant and accused were related and lived in the same house together.  The complainant was a quiet and reserved person.  Almost a year after the incident in question, she reported the abuse to her former school teacher but did not disclose the perpetrator’s identity.  The teacher in turn reported the matter to the police resulting in appellant’s arrest.  The complainant was a single witness.  Accused argued that complainant was not credible because she delayed to make the report and also cited inconsistency in her evidence.  The court held that it is permissible to convict a person on the single evidence of a competent and credible witness as provided for in terms of section 269 of the Criminal Procedure and Evidence Act.  In such a case, the court held, the judicial officer must weigh the evidence, consider its merits and demerits and decide whether it is credible despite some shortcomings or defects and make sure that he is satisfied that the truth has been told.  The court further held that the exercise of caution must not displace common sense.</p> <p>It was held further in that case that a common sense approach must be applied and if the court is convinced beyond a reasonable doubt that the truth has been told, it must convict.  Whilst corroboration is not essential, any other factor that increases the reliability of the single witness may also overcome caution.  In that case, the court confirmed the conviction.   </p> <p>The applicant’s counsel, seems to attack the fact that a question was asked for complainant to state what happened during the night as they slept.  What he must appreciate is that, it is the totality of the evidence tendered before the court <em>a quo</em> which matters.  The question to be asked should be, given the total circumstances of the case, is there any danger of false incrimination?  Is there any danger of fabrication?  Pieces of evidence need not be perfect but their sum total should be so as to convince a reasonable decision maker who carefully examines the facts, that indeed the accused person is guilty  of the crime, with which he is charged, beyond a reasonable doubt.</p> <p>It is my view that the sum total of the facts of this case, leave no doubt in any reasonable person’s mind, who diligently applies their mind to the case, that a crime of rape was indeed proven as alleged against the accused person.  In the South African case of <em>Sauls and others</em> 1981 (3) SA 172 an (Appellante division case,) it was held that there was no rule of thumb to be applied when deciding upon the credibility of a single witness testimony.  The court must simply weigh the evidence and consider its merits and demerits and decide whether in its view the testimony is truthful.  The approach in Sauls case has been adopted in many cases decided in our jurisdiction.</p> <p>The third ground of appeal is that the court <em>a quo</em> failed to appreciate the danger of substitution of the real culprit by the complainant acting at the instance and inducement of persons who forced a report out of her.  I have not seen the facts in the court record to back up this ground.   It is a ground that is not factually based within the 4 corners of the record.</p> <p>Ground 4 and 5 are dealt with in my analysis of the 1st ground as they deal with the court’s failure to assess complainant’s testimony properly and thereby arriving at a wrong conclusion.  I have already dealt with the probative value of complainant’s evidence as corroborated and I will not revisit that point.</p> <p>It is for these reasons that I have dismissed the application for bail pending appeaL</p> <p> </p> <p><em>Ncube Attorneys</em>, applicant’s legal practitioners</p> <p><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/2019/8/2020-zwbhc-8.docx" type="application/vnd.openxmlformats-officedocument.wordprocessingml.document; length=20522">2020-zwbhc-8.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-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/decision-high-court-bail">decision of High Court on 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/pending-appeal-bail">pending appeal for 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/2011/96">S v Mandebvu (CA 631/08) [2011] ZWHHC 96 (18 July 2011);</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></div> Mon, 16 Mar 2020 08:52:56 +0000 Sandra 9566 at https://old.zimlii.org S v Sibanda & Others (HB 11/19, HCB 10/19) [2019] ZWBHC 11 (31 January 2019); https://old.zimlii.org/zw/judgment/bulawayo-high-court/2019/11 <div class="field field-name-body field-type-text-with-summary field-label-hidden"><div class="field-items"><div class="field-item even"><p>1</p> <p>HB 11/19</p> <p>HCB 10/19</p> <p> </p> <p><strong>BONGANI SIBANDA</strong></p> <p><strong>and</strong></p> <p><strong>TAKUDZWA CHAKWESHA</strong></p> <p><strong>and</strong></p> <p><strong>NASHWELL CHUMA</strong></p> <p><strong>and</strong></p> <p><strong>LUCKMORE MACHIPISA</strong></p> <p><strong>and</strong></p> <p><strong>PRINCE MABULAWA</strong></p> <p><strong>and</strong></p> <p><strong>BLESSED NYIRONGO</strong></p> <p><strong>and</strong></p> <p><strong>FARLEY MPHANSI</strong></p> <p><strong>and</strong></p> <p><strong>LAZARUS MATARIRO</strong></p> <p><strong>and</strong></p> <p><strong>TITUS CHIVHUNA</strong></p> <p><strong>and</strong></p> <p><strong>GLADYS CHABUKA</strong></p> <p><strong>and</strong></p> <p><strong>FADZAI MUPEDZISI</strong></p> <p><strong>and</strong></p> <p><strong>BRENDA MADZIRE</strong></p> <p> </p> <p><strong>Versus</strong></p> <p> </p> <p><strong>THE STATE</strong></p> <p> </p> <p>IN TE HIGH COURT OF ZIMBABWE</p> <p>MAKONESE J</p> <p>BULAWAYO 29 &amp; 31 JANUARY 2019</p> <p> </p> <p><strong>Bail Application</strong></p> <p> </p> <p><em>B. Dube &amp; T. Davira</em> for the applicants</p> <p><em>Mrs C. Muhwandavaka</em> for the respondent</p> <p>            <strong>MAKONESE J:        </strong>On the 14th January 2019 the country was rocked by demonstrations in most of the major cities in Zimbabwe.  The demonstrations were characterized by looting of shops, destruction of property and widespread acts of hooliganism at a scale never seen before.  For a period of four days roads into the major cities were barricaded and motorists were forced to abandon their normal routes.  Scores of workers stayed in doors in their homes in a campaign dubbed “Shutdown Zimbabwe”.  The applicants are all residents of the City of Gweru.  The applicants are facing allegations of contravening section 36 (1) (a) of the Criminal Law (Codification and Reform) Act (Chapter 9:23), that is public violence.  The allegations by the state are that the applicants acting in common purpose destructed or endangered the free movement of persons and traffic pursuant to the “National shutdown” protests that were scheduled for the 14th January to 16th January 2019.  The specific allegations against the applicants in this matter are that they blocked Mkoba 5 turn-off road,  Choppies Supermarket Complex,  Bristol Road and other feeder roads using logs, stones, boulders and burning tyres.  It s further alleged that the applicants proceeded to Choppies Supermarket, Mkoba 6, Gweru and Chipo Changu Mini Market at Mkoba 10 and 14, Gweru.  Applicants acting in common purpose are alleged to have used iron bars to break the main entrance to the supermarket complex to gain access to the shops.  Once inside the shop they looted groceries and other commodities whose total value exceeds US$40 000.</p> <p>            In their application for bail the applicants deny the allegations against them.  They allege that there were arrested on the 15th January 2019 at their respective homes.  They claim that they were nowhere near the scenes of the violence that erupted in Gweru as stated in the outline of the state case.  Further they allege harassment at the hands of members of the military forces that arrested them at their homes before handing them to the police.  The applicants aver that they are suitable candidates for bail in that they are of fixed abode and there is no shred of evidence linking them to the offence.</p> <p>            In opposing bail, the Investigating Officer listed the following as the reasons for opposing bail.</p> <ol> <li>The accused persons are facing serious allegations and in event of conviction are and likely to receive custodial sentences.</li> <li>The shut down demonstrations are likely to continue.</li> <li>Since the demonstrations have not yet achieved their regime change agenda, the demonstrations are likely to continue and in that event the applicants if granted bail may be tempted to abscond.</li> </ol> <p>At the hearing of the matter no credible information was placed before the court to indicate that the likelihood of abscondment was a real probability.  The state did not present any credible evidence linking any of the applicants to the acts of public violence committed around the City of Gweru that led to the massive destruction of property.</p> <p> </p> <p><strong>The legal principles regarding the granting of bail</strong></p> <p>            In terms of section 50 of the Constitution of Zimbabwe an arrested person is entitled to be released either conditionally or on reasonable conditions on bail pending trial.  It is only where it is shown that compelling reasons exist to justify the applicant’s continued detention that a suspect can be denied bail pending his trial.  The onus rests on the state to show that there exist such compelling reasons in each particular case.  See <em>Munsaka</em> v <em>The State</em> HB-53-10.  In relation to statute, the court is guided by section 119 (1) (2) (a) (b) of the Criminal Procedure and Evidence Act (Chapter 9:07), which provides as follows:</p> <p>“(1)      subject to this section and section 32 a person … shall be released on bail unless the court finds that it is in the interests of justice that he or she be detained in custody.</p> <p>(2)        the refusal to grant bail and detention of an accused person in custody shall be in the interest of justice where one or more of the following grounds are established:</p> <p>(a)        where there is likelihood that the accused if he or she is released on bail will –</p> <p>(i)         <em>endanger the safety of the public or any particular person or will commit an offence in the first schedule; or</em></p> <p><em>(ii)        not stand his or her trial or appear to receive sentence; or</em></p> <p><em>(iii)       attempt to influence or intimidate witnesses or to conceal or destroy evidence; or</em></p> <p><em>(iv)       undermine or jeopardize the objectives or proper functioning of the criminal justice system including the bail system; or</em></p> <p>(b)        where in exceptional circumstances there is the likelihood that the release of the accused will disturb the public order or undermine public peace and security …”</p> <p>            The primary considerations in applications for bail pending trial have been well established in our law.  In cases involving public violence of the nature alleged by the state it is not sufficient for the state to make general allegations that the applicants may abscond and that the release of the accused persons may lead to the commitment of further similar offences.  The allegations against the applicants have to be linked to the acts allegedly perpetrated by the applicants.  All the applicants aver that they were arrested on the 15th January 2019 whilst at their homes.  The applicants are not required at this stage to disprove the state case.  What the state is required to do is to show that compelling reasons exist for the denial of bail.  In <em>State </em>v <em>Makamba</em> SC-30-04 the court set out the primary considerations applicable in assessing evidence and submissions in bail applications as follows:</p> <ol> <li>whether the applicant will stand trial in due course;</li> <li>whether the applicant will interfere with investigations of the case against him or her or temper with the prosecution witnesses;</li> <li>whether the applicant will commit offences when on bail;</li> <li>other considerations the court may deem good and sufficient.</li> </ol> <p>In <em>Chiadzwa </em>1988 (2) ZLR 19 the court laid the principle as follows:</p> <p><em>“It is the fundamental requirement of the proper administration of justice that an accused person stands trial and if there is any cognizable indication that he will not stand trial if released from custody, the court will serve the needs of justice by refusing to grant bail, even at the expense of the liberty of the accused and despite the presumption of innocence”.</em></p> <p>            In this matter there are no compelling reasons to deny bail pending trial.  All the applicants are of fixed abode.  The interests of justice will not be compromised if the applicants are to be granted bail.  The possibility of abscondment is not a real possibility as there is no evidence at all placed before the court indicating that applicants have the inclination or propensity to abscond. The state may not rely on speculation and conjecture as grounds for opposing bail. These applicants are clearly suitable candidates for bail pending trial.</p> <p>In the result, the application succeeds.  The applicants are granted bail in terms of the draft order.</p> <p> </p> <p> </p> <p><em>Gundu, Dube &amp; Pamacheche,</em> applicant’s legal practitioners</p> <p><em>National Prosecuting Authority</em>, respondent’s legal practitioners</p> <p> </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/2019/11/2019-zwbhc-11.docx" type="application/vnd.openxmlformats-officedocument.wordprocessingml.document; length=19993">2019-zwbhc-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/bulawayo-high-court/2019/11/2019-zwbhc-11.pdf" type="application/pdf; length=133824">2019-zwbhc-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/bail">BAIL</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">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/decision-high-court-bail">decision of High Court on 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/bulawayo-high-court/2016/258">S v Munsaka (HB 55/16, HCB 10/16) [2016] ZWBHC 258 (25 February 2016);</a></div><div class="field-item odd"><a href="/zw/judgment/supreme-court-zimbabwe/2004/30">S v Makamba (19/04) ((19/04)) [2004] ZWSC 30 (22 April 2004);</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> Mon, 18 Mar 2019 11:50:12 +0000 admin 9289 at https://old.zimlii.org S v Mapfumo (HH 273-18, B573/18) [2018] ZWHHC 273 (30 May 2018); https://old.zimlii.org/zw/judgment/harare-high-court/2018/273 <div class="field field-name-body field-type-text-with-summary field-label-hidden"><div class="field-items"><div class="field-item even"><p>ISSIAH MAPFUMO</p> <p>versus</p> <p>THE STATE</p> <p> </p> <p> </p> <p> </p> <p>HIGH COURT OF ZIMBABW</p> <p>PHIRI J</p> <p>HARARE, 30 May 2018</p> <p> </p> <p> </p> <p><strong>Bail</strong></p> <p> </p> <p> </p> <p><em>M Chigwaza,</em> for the applicant</p> <p><em>E. Makoto,</em> for the respondent</p> <p> </p> <p> </p> <p>            PHIRI J: This is an application for bail pending appeal.</p> <p>            The applicant was arraigned before the Chinhoyi Regional Magistrates Court for contravention of s 65 (1) of the Criminal Law Codification and Reform Act [<em>Chapter 9:23</em>] (Rape four counts).</p> <p>            The applicant pleaded not guilty to all four counts but was convicted to a total of 30 years imprisonment of which 5 years were suspended on certain conditions.</p> <p>            In an application for bail pending appeal the main consideration is whether there are prospects of success on appeal. See <em>S </em>v <em>Dzawo </em>1988 (2) ZLR 536.</p> <p>The Offence</p> <p>            The State adduced evidence that the applicant had unlawful sexual intercourse with the complainant from the period extending from August to December, 2015 at farm 335 Msengezi.</p> <p>            In the first count the applicant testified that the applicant took advantage of the absence of her husband and entered her house, at night whilst he was holding a knife. He had unlawful sexual intercourse with her and threatened her with death.</p> <p>            On the other 3 occasions the applicant testified that she was way laid by the applicant who had unlawful sexual intercourse with her, without, her consent.</p> <p>            The court was satisfied that the complainant was a credible and reliable witness who gave a “detailed narration of events” that is not consistent with fabrication of evidence (see p 13 of the record).</p> <p>            The applicant was complainant’s nephew.</p> <p>            The court was also satisfied that the applicant had sexual intercourse with the complainant and this was accompanied by threats of violence.</p> <p>            The court held that complainant was not shaken during cross examination.</p> <p>            It is therefore highly unlikely that an appeal court is liked to interfere with her evidence.</p> <p>            This court agrees with submissions made on behalf of the respondents in this regard. See <em>S </em>v <em>Soko </em>SC 118/92 and <em>S </em>v <em>Mlambo </em>1994 (2) ZLR 410 cases which confirm that an appeal court hardly interferes with findings of credibility by lower courts.</p> <p>            The record also shows why complainant took a long time in reporting this offence namely the threats of violence and the fact that she was staying alone. She also felt it safer to report the offence after her husband had been dismissed from work. The record also shows that her report was voluntary.</p> <p>            In the circumstances this court agrees, that the conviction is unassailable and that the sentence does not induce a sense of shock given the multiple counts in this case.</p> <p>            This court holds that an appeal court is unlikely to interfere with both conviction and sentence.</p> <p>            This application for bail pending appeal is accordingly dismissed.</p> <p><em>Chokore and Chigwaza Law Chambers</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="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/2018/273/2018-zwhhc-273.docx" type="application/vnd.openxmlformats-officedocument.wordprocessingml.document; length=17718">2018-zwhhc-273.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/2018/273/2018-zwhhc-273.pdf" type="application/pdf; length=101957">2018-zwhhc-273.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/criminal-law-common-law-crime">CRIMINAL LAW (Common Law Crime)</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/rape">Rape</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">BAIL</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/appeal">Appeal</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/decision-high-court-bail">decision of High Court on 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/pending-appeal-bail">pending appeal for bail</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/high-court">HIGH COURT</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/powers-high-court">Powers (HIGH COURT)</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></div> Tue, 19 Jun 2018 10:13:56 +0000 admin 8921 at https://old.zimlii.org S v Katiro (HH229-18, B 409/18 Ref Case No. P7772/16) [2018] ZWHHC 229 (25 April 2018); https://old.zimlii.org/zw/judgment/harare-high-court/2018/229 <div class="field field-name-body field-type-text-with-summary field-label-hidden"><div class="field-items"><div class="field-item even"><p>WARREN HAZVIENZANI KATIRO</p> <p>versus</p> <p>THE STATE</p> <p> </p> <p> </p> <p>HIGH COURT OF ZIMBABWE</p> <p>CHITAPI J</p> <p>HARARE, 28 March and 25 April, 2018</p> <p> </p> <p> </p> <p><strong>Bail application</strong></p> <p> </p> <p> </p> <p><em>L Dube</em>, for the applicant</p> <p><em>T Mapfuwa</em>, for the State</p> <p> </p> <p>            CHITAPI J: I reserved judgment after argument by counsel in this application. I have considered the papers filed in support of the application and the State’s response as well as the further arguments by counsel.</p> <p>            The applicant was employed as a prison officer stationed at Chikurubi maximum Farm Prison. He was convicted by the senior magistrate at Harare on 14 March, 2018 for contravening s 4 of the Firearms Act, [<em>Chapter 10:09</em>] (unlawful possession). The charge sheet averred that on 18 May, 2016, the applicant unlawfully transferred 9x19mm live bullets or rounds of ammunition to one Allen Matemachani without a valid licence to do so. Apparently the said Allen Mutemachani was an ex-convict whom the accused had come into contact with whilst the former was serving a prison term. It was alleged that the said Allen Mutemachani used the ammunition to commit a number of robbery and attempted murder cases within the environs of Harare. The police in their investigations arrested the applicant as the person who had supplied the ammunition to Allen Mutemachani and his accomplice Rodwell Joe.</p> <p>            The applicant pleaded not guilty to the charges but was convicted after a full trial. The applicant was sentenced to 12 months imprisonment with 4 months suspended on conditions of future good behaviour relating to fire arms transfer and sale.</p> <p>            The applicant through his legal practitioners filed an appeal against both conviction and sentence. In respect of conviction the applicant’s grounds in summary were firstly, that the magistrate erred in accepting inadmissible evidence in the record. Such a ground of appeal is not a valid ground of appeal because it does not inform as to what such evidence was. A generalized ground of appeal does not comply with the requirements of r 22 (1) of the Supreme Court (Magistrates Court) Appeals Rules 1979 which requires that grounds of appeal should be clear and specific.  See <em>State </em>v <em>McNab </em>1986 (2) ZLR 280(5).</p> <p>            Secondly, the applicant seeks to impugn the magistrate’s judgment on the ground that she erred in law in not ordering a trial within a trial in the light of clear evidence that the applicant had been severely assaulted and tortured by the police to confess to the offence. The purport of the argument is that the magistrate should not have relied on the confession as evidence against the applicant.</p> <p>            Thirdly, the applicant attacks the magistrate’s judgment on the basis that she erred at law in disregarding the evidence of witnesses Prince and Rodwell Joe.</p> <p>            Fourthly and lastly, the applicant impugns the judgment on the basis that the magistrate relied on circumstantial evidence and reached an inference of guilt which was not the only reasonable inference arising from the facts.</p> <p>            Against sentence the applicant attacks the magistrate’s sentence on the generalized grounds that the magistrate did not give due weight to the fact that the applicant was a first offender and to “various mitigatory factors which applied to the appellant”. There cannot be any worse nonsensical expression than “various mitigatory factors” if the factors are not listed. An appellant cannot expect an appeal court to make sense of an expression that in essence complains that the magistrate did not consider a multifarious or plethora of factors without listing the same. A court does not possess magical powers to read into a litigant’s mind. The applicant also impugns the sentence on the ground that the trial court failed to consider the imposition of community service as an alternative to imprisonment. Reading the grounds of appeal against sentence in their totality, criticisms of their inexactitude as pointed out aside, the applicant’s argument appears to be simply that he considers the sentence imposed under the circumstances as being too harsh and excessive and that a lesser sentence should have been imposed.</p> <p>            The State opposed the application on the basis that the applicant appeal against both conviction and sentence has no prospects of success. State counsel argued that the magistrate relied on a confirmed warned and cautioned statement whose production in evidence in terms of s 256 (2) of the Criminal Procedure and Evidence Act, [<em>Chapter 9:07</em>] is permissible on the mere production by the prosecutor. The State argued that the warned and cautioned statement was produced by consent.</p> <p>            A consent by the applicant at his trial to the production of the warned and cautioned statement without raising issues must be taken to imply that the applicant had no qualms with its contents, how it was extracted and its confirmation. The ground of appeal that the magistrate should not have admitted the statement but instead held a trial within a trial is without merit. It shows a total misunderstanding of procedural law by the applicant’s counsel. A challenge to a confirmed warned and cautioned statement does not require to be resolved through a trial within a trial. Once confirmed and there is no challenge to the confirmation proceedings, the confirmed statement is produced as evidence by the prosecutor.  However, in terms of the <em>proviso</em> to s 256 [2] the court shall not use the produced statement as evidence if the accused proves that the statement was not made by him or that he did not make it freely and voluntarily. The issue is an evidential one to be determined by evidence given during the defence case with the prosecutor having a right to re-open the State case to deal with the issues raised by the accused in challenging the statement on its authenticity or the voluntariness of its making.</p> <p>            Despite the misconception on the law exhibited by the applicant’s counsel in relation to challenging a confirmed warned and cautioned statement, I am on the record persuaded to find some reasonable argument on conviction which can be advanced with some prospects of success on appeal. The applicant gave a lengthy defence outline which he adopted as his evidence in chief. In the defence outline, he gave numerous reasons for giving his statement to the police. The reasons ranged from torture to persuasion by police to make a false statement upon a promise by the police that the applicant would not be prosecuted because the interest of the police was to nail the robbers who used the ammunition and not the applicant.</p> <p>            The magistrate made a positive finding that there was no direct evidence of whether or not the applicant supplied ammunition to the person mentioned in the charge because that person was dead. His accomplice Rodwell Joe did not testify either. There was no evidence led or contained in the applicants’ statement as to the source or origin of the ammunition. The bullet heads recovered from the scenes of crime were not traced to the Prison Armoury. The applicant was convicted on his word that he supplied bullets to the persons alleged to have engaged in robberies. The magistrate treated as a strong circumstantial fact against the applicant the fact that the applicant communicated by phone with the alleged robbers. The question is whether it can be said that there is a bar against a prison officer communicating with an ex-convict who has served his sentence and is back in society. There cannot be such a law.  The applicant explained his reasons for the communication as that he had advanced some money to the ex-convict or convicts for their bus fare on release from prison and wanted to recover this money. In the absence of such benevolence being proved to be an impermisable act, it cannot be held without anything further that the applicant’s explanation of the motive for the communication was proven positively to be false beyond a reasonable doubt by the State.</p> <p>            The other difficulty which I faced was that it did not appear that the magistrate properly dealt with how a confession should be treated before a conviction based upon it can be returned. In terms of s 273 of the Criminal Procedure and Evidence Act, a conviction based upon a confession is only competent where the offence charged is proved by other competent evidence other than the confession to have actually been committed. It is this other evidence of the transfer of the ammunition other than the confession which I failed to pick from the record. The absence of such evidence would therefore arguably render the confession insufficient to found a conviction.</p> <p>            In respect of sentence, there are no prospects of success regard being had to the seriousness of the charge and the position of the applicant as a member of the disciplined forces charged inter alia with use, safeguarding arms and ammunition. The applicant also appreciated the dangers caused by the uncontrolled transfer, possession or use of live ammunition. A prison sentence was inevitable under the circumstances.</p> <p>            In view however of the doubts I have expressed in relation to whether the magistrate was properly directed to s 273 of the Criminal Procedure and Evidence Act in convicting the applicant on his confession, I must hold that the applicant has good prospects of success against conviction. The applicant is accordingly admitted to bail pending appeal No. CA 185/18 in terms of the draft order as amended to the extent that the bail deposit is increased to $300-00 from the offered $100-00 and the deletion of paragraph 4 requiring the applicant not to interfere with State witnesses.</p> <p> </p> <p> </p> <p><em>Kwiriwiri Law Chambers</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="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/2018/229/2018-zwhhc-229.docx" type="application/vnd.openxmlformats-officedocument.wordprocessingml.document; length=20865">2018-zwhhc-229.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/2018/229/2018-zwhhc-229.pdf" type="application/pdf; length=228107">2018-zwhhc-229.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/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 odd"><a href="/tags-local/firearms-act-chapter-1009">Firearms Act [Chapter 10:09]</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">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/decision-high-court-bail">decision of High Court on bail</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/grant-bail">grant of bail</a></li></ul></span> Tue, 22 May 2018 12:59:28 +0000 admin 8853 at https://old.zimlii.org S v Moyo (HMA 20-18, Case No B 192/17) [2018] ZWMSVHC 20 (28 February 2018); https://old.zimlii.org/zw/judgment/masvingo-high-court/2018/20 <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>DUMISANI MOYO                                                 </p> <p>versus</p> <p>THE STATE</p> <p> </p> <p>HIGH COURT OF ZIMBABWE</p> <p>MAFUSIRE J</p> <p>MASVINGO: 30 October 2017 and 28 February 2018</p> <p> </p> <p> </p> <p><strong>Bail pending extradition</strong></p> <p> </p> <p>Mr <em>O. Mafa</em>, for the applicant</p> <p>Mr <em>T. Chikwati</em>, for the respondent</p> <p> </p> <p>MAFUSIRE J:</p> <p>[1]     At one stage the applicant, a local citizen, faced allied charges in both Zimbabwe and Botswana relating to the unlawful hunting, killing and possession of rhinoceros horns, in contravention of kindred statutes that deal with the protection and preservation of wild life in the two countries. The charges arose out of the applicant’s alleged conduct, in league with other persons, both in this country and in Botswana, and at different times. In one statement, which was later retracted, the Zimbabwean police had described him as</p> <p> </p> <p>          “… a leader of a syndicate whose membership extends beyond the geographical boundaries of this country. His ability to link up with undocumented foreign nationals suggests knowledge on his part of the means that are employed to smuggle them into and out of the country without being detected …”</p> <p> </p> <p>[2]     On 30 June 2017 I granted the applicant bail pending trial in respect of the Zimbabwean charge of unlawfully hunting and killing a rhinoceros, in contravention of the Parks and Wildlife Act, <em>Cap 20:14</em>. At that stage the applicant had not yet been arrested in respect of the charge in Botswana. No information pertaining to his alleged criminal activities there was as yet available to the court.</p> <p> </p> <p>[3]     The bail conditions were more stringent than usual. The applicant would pay a recognizance in the sum of $200; surrender his passport; cede as collateral security his right, title and interest in a certain immovable property; and report to the police once every week.</p> <p> </p> <p>[4]     Three months later the applicant was back in court, this time seeking bail in respect of the charge in Botswana. Soon after his release on bail in respect of the charge in Zimbabwe, he had been placed in custody at the instance of the Botswana Government which had formally applied for his extradition.</p> <p> </p> <p>[5]     The State opposed the application for bail. But on 30 October 2017 I granted it. The bail order was on the same terms and conditions as the June 2017 order. The State had now withdrawn the charge the applicant faced locally. He was in custody solely for the purpose of extradition.</p> <p> </p> <p>[6]     The applicant had apparently skipped bail in Botswana. According to the application for extradition that the Government of Botswana submitted to the Zimbabwean authorities, he had been arrested in Botswana in 2012. Together with three other persons – all Botswana nationals – he had been charged with the unlawful possession of a rhinoceros horn. On 23 October 2012 he had been remanded out of custody on bail by a Botswana magistrate’s court sitting at Francistown. He would be wanted back at that court on 29 November 2012 and subsequent months. However, he failed to appear, either on that date, or on any other. On 17 December 2014 the Botswana magistrate’s court issued a warrant for his arrest. The warrant was subsequently lodged with the Zimbabwean authorities, eventually leading to his arrest in July 2017.</p> <p> </p> <p>[7]     The current bail application pending extradition was lodged in September 2017. However, it had to be postponed. The information initialled placed before the court was woefully inadequate to enable an informed decision to be made. Eventually some salient details emerged, albeit sporadically.</p> <p> </p> <p>[8]     The applicant said soon after his release on bail by the Botswana court, he had simply come back to Zimbabwe because his daughter had fallen sick. He had told no one. He claimed he had not appreciated that he had to tell anyone. I did not believe him. Nonetheless this was just one of several factors that I would take into account.</p> <p> </p> <p>[9]     In terms of the Botswana Wildlife Conservation and National Parks Act, <em>Cap 38:01</em>, the equivalent of our own Parks and Wildlife Act, a conviction for unlawful possession of a rhinoceros horn carries a mandatory fine of one hundred thousand Botswana Pula [P100 000], and imprisonment for fifteen [15] years. Comparatively, that is quite steep. The equivalent in our jurisdiction, for a first offence, is a mandatory minimum of nine [9] years imprisonment, which can be reduced if there are special circumstances justifying a lesser sentence.</p> <p> </p> <p>[10]   The State’s opposition to the applicant’s release on bail largely hinged on the fact that the applicant was on a warrant of arrest because he had skipped bail in Botswana. It said a person such as him was not a suitable candidate for bail because he had already shown a propensity to evade justice.</p> <p> </p> <p>[11]   Undoubtedly, there are obligations thrust on state parties to extradition agreements or treaties to make such instruments effectual by handing over cross-border criminals to thwart their designs to escape justice for crimes committed by them in one country and taking refuge in another. John van der Berg: <em>Bail – A Practitioner’s Guide</em>, 3rd ed., Juta, at pp 287 – 288, says a [judicial officer] must exercise his power to grant bail with extreme caution in a manner that would not conflict with treaty obligations between the foreign state and the custodian one.</p> <p> </p> <p>[12]   Initially the applicant’s application for bail pending extradition substantially relied on the fact that he was facing another charge here in Zimbabwe and that therefore the extradition process had to be postponed pending the finalisation of his trial locally. In this regard, he had already applied to the Ministry of Home Affairs, the relevant authority, for that postponement. The application to the Ministry was based on s 28 of the Extradition Act, <em>Cap 9:08</em>. It says:</p> <p> </p> <p> </p> <p> </p> <p>“<strong>28 Postponement of extradition</strong></p> <p> </p> <p>If, in terms of this Act, a request is received for the extradition of a person against whom criminal proceedings have been instituted in Zimbabwe or who is undergoing any punishment in Zimbabwe in respect of any offence, the Minister may postpone the issue of an authority to proceed in terms of this Act or direct that all proceedings in connection with the extradition of the person in terms of this Act be postponed, as may be appropriate, until—</p> <p> </p> <p>(<em>a</em>)          the criminal proceedings have been completed and the person concerned has undergone any punishment that may have been imposed upon him in respect of those proceedings; or</p> <p> </p> <p>(<em>b</em>)          the person concerned has undergone the punishment that he was undergoing when the request was received; as the case may be:</p> <p> </p> <p>Provided …[<em>irrelevant</em>] …”</p> <p> </p> <p>[13]   However, the State’s withdrawal of the Zimbabwean charge completely disarmed the applicant with regards to his reliance on s 28 aforesaid. His further argument for bail reverted to the usual bail principles as set out in the Constitution of Zimbabwe, the Criminal Procedure and Evidence Act <em>Cap 9:07</em>, and case authority. Section 26 of the Extradition Act says:</p> <p> </p> <p>“<strong>26 Bail and legal representation</strong></p> <p> </p> <ol> <li>A person who has been arrested for the purposes of extradition in terms of this Act shall have the same right to bail and legal representation as if he were arrested in connection with a criminal offence for which he was to be charged within Zimbabwe.</li> </ol> <p> </p> <ol> <li>………………… [<em>irrelevant</em>] …………….”</li> </ol> <p> </p> <p>[14]   In considering this application, I took into account the fact that the criminal justice process is such that there is an inevitable delay between the arrest of the accused and his subsequent trial. Extradition worsens the situation. It is an inherently cumbersome process which often involves extensive communication and negotiations between participating states, followed by a trial and, in some instances, an appeal or review. It follows that an accused can be deprived of his liberty for lengthy periods: see John van der Berg, <em>supra</em>, at p 286. Therefore, in such situations the court should lean in favour of granting bail, unless compelling reasons militate against doing so.</p> <p> </p> <p>[15]   Our new constitutional dispensation stresses the presumption of innocence of an accused person until proved guilty by a trial process: s 70. The right to bail, in the absence of compelling reasons to deny it, has been entrenched as one of the fundamental human rights and freedoms: s 50.</p> <p> </p> <p>[16]   In the present application, the major factor militating against the applicant’s quest for pre-trial liberty was the fact that he had skipped bail in Botswana and absconded to Zimbabwe. However, other than the statements and depositions by the Botswana prosecuting authorities; the evidence in support of the charge there; and the warrant of arrest against the applicant, the bail order of the magistrate’s court at Francistown was not placed before me. As such, none of the Counsel could enlighten me as to the bail conditions, if any, imposed by the Botswana court. However, this factor alone was not decisive. It was common cause that the applicant had jumped bail.</p> <p> </p> <p>[17]   The other negative factor against the applicant was that from the perspective of the prescribed penalty, unlawful possession of a rhinoceros horn seems a very serious offence in Botswana. It also is in Zimbabwe. It is a bail principle that the seriousness of an offence is a relevant factor to take into account in an application for bail, the assumption being that the prospect of a lengthy custodial sentence is an inducement for an accused person to abscond. But again, this factor is not by itself decisive: see <em>S v Hussey</em> and <em>Aitken &amp; Anor v Attorney General</em>. No single factor is by itself decisive anyway.</p> <p> </p> <p>[18]   The major factor in favour of the applicant was that the Botswana charge pre-dated the Zimbabwean one, but that despite his having been released on bail in respect of the Zimbabwean charge, he had not absconded. The State did not refute his submission that he had religiously complied with the bail conditions locally.</p> <p> </p> <p>[19]   The other factor in favour of granting bail was that the order of June 2017, whose conditions the applicant was willing to abide by, was quite stringent. The quantum of bail amounts generally ordered by this court at this station is $50. Sometimes they are as low as $20, or even less; sometimes even free. Rarely are they pegged at $100 or above. But in the June 2017 order, the bail amount had been assessed at $200 which, incidentally, the applicant had struggled to raise. On top of that, should he abscond, the applicant stood to lose his family residence which he had ceded as security. Therefore, coupled with the fact that the charge in Botswana was mere allegations which he denied, he stood to lose more if he absconded than if he were to wait and be extradited to Botswana to clear his name there.</p> <p> </p> <p>[20]   After weighing all the above factors, and taking into account the constitutional imperatives aforesaid; the age of the applicant [52 years old]; his marital status [married with four children], and his assurance that whenever the authorities from the two countries were ready for his extradition, he would present himself, I considered that it was in the interests of justice that he be released on bail upon the same stringent conditions as before.</p> <p> </p> <p> </p> <p> </p> <p> </p> <p> </p> <p>28 February 2018</p> <p> </p> <p><em>Mutendi, Mudisi &amp; Shumba</em>, legal practitioners for the applicant</p> <p><em>National Prosecuting Authority</em>, legal practitioners for the respondent</p> <p>1991 [2] ZLR 187 [S], at p 190</p> <p>1992 [1] ZLR 249 [S]</p> <p>It was made known that despite the order having been granted on 30 June 2017, it was not until mid-July 2017 that the applicant finally raised the bail money.</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/2018/20/2018-zwmsvhc-20.docx" type="application/vnd.openxmlformats-officedocument.wordprocessingml.document; length=57487">2018-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/2018/20/2018-zwmsvhc-20.pdf" type="application/pdf; length=200751">2018-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/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 odd"><a href="/tags-local/criminal-procedure">CRIMINAL PROCEDURE</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/bail">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/decision-high-court-bail">decision of High Court on bail</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/1975/14">Parks and Wild Life Act [Chapter 20:14] </a></div></div></div> Tue, 17 Apr 2018 09:28:07 +0000 admin 8740 at https://old.zimlii.org S v Chikamhi (HH 159-18, B 270/18) [2018] ZWHHC 159 (28 February 2018); https://old.zimlii.org/zw/judgment/harare-high-court/2018/159 <div class="field field-name-body field-type-text-with-summary field-label-hidden"><div class="field-items"><div class="field-item even"><p>SIMBARASHE CHIKAMHI</p> <p>versus</p> <p>THE STATE</p> <p> </p> <p> </p> <p>HIGH COURT OF ZIMBABWE</p> <p>NDEWERE J</p> <p>HARARE, 28 February 2018</p> <p> </p> <p> </p> <p><strong>Bail application</strong></p> <p> </p> <p><em>R Masinire</em>, for the applicant</p> <p><em>M Manhamo</em>, for the respondent</p> <p> </p> <p> </p> <p>            NDEWERE J: The applicant was jointly charged with Gerald Kamenya and his sister Plaxedes Chikamhi. The State alleges that on 8 February 2018 and at around 1030 hours detectives from Harare Minerals received information to the effect that the accused persons were in possession of a live pangolin and were looking for a buyer at Chisipite Shopping Centre. Upon arrival at the shopping centre, the police detectives observed a blue Honda Fit registration number ABH 1475 parked, all three accused persons were inside. The applicant was the driver. The applicant and the 2nd accused got out of the vehicle and the applicant opened the boot and held a white sack whilst accused 2 watched. The two entered the vehicle and drove to Bon Marche where the detectives were also parked.</p> <p>            The detectives approached the vehicle while the three accused were seated in the car. The detectives introduced themselves but before they could explain their mission the 1st accused (applicant) started the car and was about to drive off when one detective jumped into the applicant’s car through the front passenger door and the car sped off. The detective was ordering the applicant to stop but instead, the applicant jumped out of the moving vehicle. The applicant and his accomplices tried to escape but the detectives managed to chase the three accused persons with the assistance of members of the public and were able to apprehend them. These were the facts outlined by the respondent.</p> <p>            The applicant applied for bail pending trial on the following terms contained in the draft order</p> <ul> <li>that he deposits $50 with the Clerk of Court at Rotten Row Magistrates Court, Harare.</li> <li>that he continues to reside at 2501 4th Street, Chesvingo Township Masvingo.</li> <li>that applicant is not to interfere with witnesses.</li> <li>that applicant is to report every Friday at Masvingo Central Police Station.</li> </ul> <p>            The applicant in his statement averred that on 8 February 2018 he was hired by a certain Donald Moyo, his regular client in Masvingo. When the applicant arrived at Chisipite he had 2 other passengers who had asked for a lift. According to the applicant he was shocked when they were rounded up by police detectives in plain clothes. Initially the applicant panicked thinking the detectives were robbers and the applicant attempted to flee. The detectives then searched the car and found a pangolin in the boot. The applicant said he was not aware of the presence of a pangolin. The police arrested the three but Donald Moyo bolted and ran away the moment police requested for the boot to be opened. The applicant distanced himself from the pangolin and denied the offence of possessing a pangolin without a licence. He contended that he was a good candidate for bail.</p> <p>            The application for bail was opposed by the State.  The reasons for opposing bail were that the applicant is facing a serious charge and there was strong evidence against him. If convicted a mandatory custodial sentence shall be imposed. The State’s fears were that if released on bail; because of the seriousness of the offence and the likely lengthy prison term, the applicant was likely to abscond and avoid standing trial.</p> <p>            The court noted that the alleged Donald Moyo, despite being said to be a regular client, had not been found. It also noted that the applicant was the owner of the vehicle and other persons were mere passengers. The court also noted the police assertions that they had observed the applicant for a while and had seen him open the boot in a manner which suggested familiarity with the boot and its contents. </p> <p>            During the application it later came out from the respondent’s submissions that the matter was set down for trial on Friday 2nd March 2018. The applicant’s legal practitioners later on confirmed that. The applicant’s legal practitioner, Mr <em>Masinire R</em> of Messrs Masinire and Chakabva Legal Practitioners, confirmed also that he had been served with the charge sheet and the State outline. He said he was ready for trial. The witnesses for the State were police details who were ready for trial as well.</p> <p>            The applicant was applying for bail pending trial. The State, well before the bail application by the applicant, had expeditiously provided the defence with State papers and a tentative trial date. This court’s view is that where the State has provided a trial date as in this case it will be in the interests of both parties that the matter be allowed to proceed to trial  while the accused is in custody and that the matter be determined on the merits and finalised.</p> <p>            Accordingly the application for bail is dismissed.                 </p> <p><em>Masinire &amp; Chakabva legal practitioners</em>, applicant’s legal practitioners</p> <p><em>Prosecutor General’s Office</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/2018/159/2018-zwhhc-159.docx" type="application/vnd.openxmlformats-officedocument.wordprocessingml.document; length=20618">2018-zwhhc-159.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/2018/159/2018-zwhhc-159.pdf" type="application/pdf; length=148226">2018-zwhhc-159.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/criminal-procedure">CRIMINAL PROCEDURE</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/bail">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/decision-high-court-bail">decision of High Court on bail</a></li></ul></span> Mon, 09 Apr 2018 09:14:38 +0000 admin 8691 at https://old.zimlii.org