Judgment No. HB 132/2002

                                                                                    Case No. HCB 188-90/2002

                                                                                    CRB 9922-3/02

 

BENJAMIN MAKETO                                           1^st APPELLANT

 

And

 

ROWEN DUBE                                                        2^nd APPELLANT

 

And

 

JOSEPH NYONI                                                      3^rd APPELLANT

 

versus

 

THE STATE                                                             Respondent

 

IN THE HIGH COURT OF ZIMBABWE

CHIWESHE J

BULAWAYO 6 & 14 NOVEMBER 2002

 

N Mazibukofor the appellants

Mrs  M Zimba-Dubefor the respondent

 

Bail Application

 

            CHIWESHE J:          The appellants appeared before a magistrate facing

 

charges of contravening section 4(a) as read with section 15 (2) (e) of the Prevention

 

of Corruption Act, Chapter 9:16, alternatively attempting to defeat or obstruct the

 

course of justice.  They applied for bail pending trial.  The magistrate dismissed the

 

application on the grounds that the applicants may abscond or and interfere with state

 

witnesses.  They now appeal against the decision denying them bail.

 

            According to the form 242, the allegations against the appellants are as

 

follows:

 

            The first appellant who was then the Officer Commanding Criminal

 

Investigations Department Law and Order Section, Bulawayo, received information

 

relating to the presence of a suspected armed robber at a house in Mahatshula. 

 

 

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A team of police detectives was dispatched to the area to investigate.  They proceeded

 

to arrest one Khulekani Ncube who was wanted in connection with an armed robbery

 

case which took place in Johannesburg, South Africa on 27 December 2001.  The

 

robbery concerned involved the sum of 117 million Rands.  The team of detectives

 

also recovered from the said suspect a motor vehicle, namely a Nissan Hardbody twin

 

cab – registration number 758-227J and a CZ pistol.  First and second appellants were

 

later called to the scene where it is alleged they corruptly connived to release the said

 

suspect and the Nissan Hardbody twin cab.  It is alleged that at the time second

 

appellant had stated that the suspect was an accused in the Johannesburg robbery case

 

but that he had since been cleared of those charges.  As a result the first appellant after

 

discussions with the second appellant and the said suspect then ordered the release of

 

the suspect.  It is alleged that both first and second appellants knew that the said

 

Khulekani Ncube was wanted in connection with the Johannesburg robbery.  The

 

investigating officer opposed bail on the grounds that in view of the serious nature of

 

the offence the appellants may abscond and that they may interfere with witnesses and

 

jeopardise police investigations.  He also stated that the Nissan Hardbody and another

 

vehicle a Mazda twin cab recovered during investigations and corruptly released by

 

the first and second appellants are yet to be located.

 

            The allegations against third appellant are that he corruptly processed a

 

firearm licence application for the suspect Khulekani Ncube.  In it he is alleged to

 

have recommended that the said suspect be granted such certificate when he knew

 

very well that the suspect was wanted in South Africa in connection with a case

 

involving armed robbery.  The file pertaining to that application has gone missing. 

 

 

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It is suspected that third appellant was involved in the disappearance of the file.

 

            It is further alleged that on 14 August 2002 Khulekani Ncube filed a complaint

 

at Sauerstown Police Station to the effect that one Sergeant Kennedy Mavudzi was

 

soliciting a bribe from him for Ncube’s involvement in the Johannesburg robbery. 

 

Both second and third appellants dealt with the complainant and deliberately refrained

 

from arresting Khulekani Ncube when they knew he was wanted in South Africa.

 

            It is further alleged that between April 2002 and July 2002 the third appellant

 

communicated with Khulekani Ncube on his cellphone on several occasions despite

 

the fact that they knew that the said Ncube was a wanted criminal.

 

            The appellants allege that in denying them bail pending trial the magistrate

 

misdirected herself in view of the facts elicited during the bail application.  They note

 

that it was common cause that the appellants are married.  The first appellant has five

 

minor children, the second appellant has four.  All three appellants are the sole

 

breadwinners in their respective families.  Further it was also common cause that first

 

and second appellants have passports.  The third appellant does not hold any

 

travelling documents.  It had been argued that the appellants could surrender their

 

passports as part of their bail conditions.  The learned magistrate was of the view that

 

surrender of one’s passport was no guarantee that one would not abscond.  This view

 

on the part of the magistrate according to the appellants amounts to a misdirection. 

 

Mr Mazibukofor the appellants argued that the purpose of imposing such bail

 

conditions was to reduce the probabilities of abscondment and not necessarily to

 

guarantee that the appellants would not abscond.  It is only incarceration that can

 

 

 

 

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guarantee against abscondment.  Mrs Zimba-Dube for the respondent defended the

 

magistrate’s view on the grounds that cases of “border jumping” are rampant and that

 

the magistrate was justified in taking the view that she took.  The magistrate’s view if

 

taken to its logical conclusion amounts to the proposition that since any bail

 

conditions that may be imposed by a court are in themselves no guarantee that the

 

accused person will stand trial then in any case where it is feared that an accused

 

person may abscond, bail must of necessity be refused.  There is neither authority nor

 

justification for such a proposition.  Such a proposition flies in the face of the whole

 

concept of bail pending trial.  I am satisfied that the learned magistrate’s remarks

 

constitute a misdirection on her part.

 

            The appellants further contend that the magistrate misdirected herself in

 

concluding that appellants were likely to abscond simply because they were facing a

 

serious charge.  In my view the criticisms laid against the magistrate in this regard are

 

without merit.  A reading of her judgment indicates that she did not refuse bail simply

 

because the appellants were facing serious charges.  She also considered factors such

 

as the likelihood of interference with witnesses and investigations.  She was clearly

 

conversant with the relevant authorities in that regard and showed a clear grasp of the

 

principles enunciated in the case of Hussey v The State SC-181-91.

 

            The learned magistrate is also criticised for delving “quite extensively” into

 

the merits of the case to the extent of making a determination on the credibility of the

 

appellants.  The appellants gave evidence on oath in support of their application for

 

bail.  Naturally they were subjected to cross-examination.  The purpose of their giving

 

evidence was to pursuade the magistrate to grant them bail.  The magistrate was in my

 

 

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view perfectly entitled to assess their credibility with regards their testimony.  I am

 

satisfied from a reading of the record that her comments in that regard were justifiable

 

and relevant to the application then before her.

 

            It was also submitted on behalf of the appellants that as they are family men

 

who own immovable property and are prepared to surrender travel documents where

 

applicable, the conclusion by the magistrate that they were likely to abscond was not

 

supported by the evidence and that in the circumstances, the evidence of the

 

appellants to the effect that they would not abscond should have been accepted.  I am

 

however satisfied that the magistrate was alive to the submissions made in this regard. 

 

The record shows that she applied her mind to the issues before her.  She sought to

 

strike a balance between the interests of the administration of justice on the one hand

 

and the appellants’ liberty on the other.  In the process she came to the conclusion that

 

it would not be in the interest of justice to accede to the application.

 

            It is further alleged by the appellants that the learned magistrate misdirected

 

herself by holding that the appellants were likely to interfere with investigations

 

merely because they had interfered with investigations in the Johannesburg case

 

involving suspect Khulekani Ncube.  If it is accepted that the appellants interfered

 

with investigations in the case of Khulekani Ncube, would it be unreasonable for a

 

court to entertain fears that the appellants could similarly interfere with investigations

 

in their own case?  The magistrate’s reasoning in this regard is beyond reproach.  It is

 

argued however that since Khulekani Ncube has not yet been tried in the

 

Johannesburg case, the magistrate’s view as to whether he was interfered with by the

 

appellants amounts to mere speculation.  In my view at this stage the magistrate is

 

 

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essentially assessing probabilities.  If the information before her tends to show that the

 

possibility does exist that the appellants interfered with the said Khulekani, she would

 

be perfectly entitled to take that possibility into account for purposes of deciding a

 

bail application.  In my view the magistrate acted within the parameters of her

 

discretion in applications of this nature.

 

            The appellants are experienced and high ranking police officers.  The concern

 

expressed that they would be in a position to interfere with or influence the course of

 

investigation cannot be dismissed out of hand.  Although the first appellant has just

 

retired from the force the other two are still serving.  I agree with the appellants that

 

appropriate bail conditions would exclude the possibility of such influence or

 

interference and that the force could administratively neutralise such negative

 

tendencies.  Because I express that view it does not necessarily follow that in taking a

 

different view the magistrate necessarily misdirected herself.  She had the discretion. 

 

I am unable to say that she did not exercise that discretion judiciously.

 

            It is also contended that the third appellant could not have had a hand in the

 

disappearance of the file relating to a firearm licence application because the file

 

disappeared in Harare and from a department or office outside his control.  That

 

notwithstanding the possibility does remain that the third appellant could have

 

influenced the course of events in Harare even if at all relevant times he remained in

 

Bulawayo.  He would have had an interest to do so.  It is not always that a police

 

officer renders that kind of assistance to a man who he knows to be a suspect in an

 

armed robbery case.

 

 

 

 

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            It has been shown that of the two vehicles originally alleged missing the

 

Mazda has since been accounted for.  There is controversy surrounding the

 

whereabouts of the Nissan Hardbody.  The appellants are adamant that it is parked at

 

a police yard.  They invited the magistrate to do an inspection in loco to confirm this

 

fact.  No such inspection took place.  It is contended that the failure by the court to so

 

conduct an inspection in loco amounted to a misdirection.  I disagree.  It was not

 

necessary for the court to take that course of action in order to establish such a simple

 

fact.  In any event the dispute now seems to be not so much as to whether there is a

 

Nissan hardbody in the yard as to whether it is the same Nissan Hardbody that was

 

recovered from the suspect.  The relevant government department can shade light on

 

this issue.

 

            A lot has also been said concerning the attempts by the appellants to retire

 

from the force almost immediately.  The state would suggest that this fact is indicative

 

of an intention to abscond.  But it is also possible appellants did so in order to

 

safeguard their terminal benefits.   However given the circumstances then existing it

 

cannot be said that the fear on the part of the state was unreasonable or totally

 

unfounded.  In entertaining that concern it cannot be held that the magistrate

 

misdirected herself.

 

            The appellants have not denied releasing the suspect as alleged.  They

 

however, contend that they relied on a fax from the South African Police which they

 

interpreted to mean that there was no longer any case against the suspect and therefore

 

there was no longer any basis upon which to arrest the suspect.  It is argued therefore

 

that the state case is necessarily weak as a result.  A cursory reading of the fax would

 

 

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tend to show that it was meant to be a brief by the South African Police to their

 

Zimbabwean counterparts regarding progress made so far in terms of investigations. 

 

It reads in part;

 

“During interviews and interrogation the pointing of the scenes and confessions the suspects mentioned names of other persons involved with them in the robbery.  The names of  Sosha Ndaba Mafu and Khulekani Ncube currently in custody in Zimbabwe were mentioned with the names of others by the arrested suspects.”

 

            In the last but two paragraphs the fax reads:

 

“After the arrest of the two above mentioned suspects in Zimbabwe the investigating officer Captain Olivier discussed the arrests with the state advocate who came to the conclusion that the two suspects currently arrested in Zimbabwe cannot be charged with the accused already standing trial … and that at this stage there is insufficient evidence against the arrested suspects to ensure a conviction.

 

It will however be of immense value if the fingerprints of the mentioned suspects could be made available to this office in order to test their prints against those retrieved at the relevant crime scene.”

 

            Does this fax exonerate the appellants?  Does it state that the South African

 

Police are no longer interested in the suspects held by their Zimbabwean

 

counterparts?  On the face of it it is unlikely that this fax will be interpreted to mean

 

what the appellants say it does.

 

            On the whole I would hold that the magistrate did not misdirect herself in

 

coming to the conclusion that she did.  Any misdirections on her part were not of such

 

magnitude as would warrant the intervention of this court.

 

            Accordingly the appeal is dismissed in its entirety.

 

 

 

Calderwood, Bryce Hendrie & Partnersappellants’ legal practitioners

Attorney-General’s Officerespondent’s legal practitioners