Judgment No. HB 34/2003

                                                                                    Case No. HCB 5/2003

 

ABRAHAM THOMAS MALUNJWA

 

Versus

 

THE STATE

 

IN THE HIGH COURT OF ZIMBABWE

NDOU J

BULAWAYO 24 JANUARY & 6 MARCH 2003

 

C.T. Hikwafor the applicant

Mrs M. Chedafor the respondent

 

Bail Application

 

            NDOU J:        The appellant applied for bail pending trial before a Bulawayo

 

Magistrate and on 26 November 2002 and the latter dismissed the application.  He

 

now appeals against such dismissal.  The appellant is facing two charges of theft by

 

conversion and another charge of contravening section 3(1)(a)(I) as read with section

 

15(2)(e) of the Prevention of Corruption Act [Chapter 9:16].  It is alleged that

 

between 8 January 2002 and 31 July 2002 and in Bulawayo, the appellant, who then

 

was a Detective Inspector, was part of a team of Zimbabwe Republic Police detectives

 

assigned to look for suspects Khulekani Ncube, Ngoneni Mafu, and Sidingumuzi

 

Sibanda.  The latter were being sought in connection with an armed robbery that

 

occurred at the Johannesburg International Airport, South Africa, on 27 December

 

2001 where cash and jewellery worth  ZAR117 million were stolen.  In the course of

 

his duties, it is alleged, the appellant, on or about 8 February 2002, recovered     

 

Z$950 000 suspected to be proceeds from the robbery from Thabile Dube of number

 

B 214 Njube who is one of the suspect’s aunt.  The appellant allegedly converted the

 

said amount to his own use.  On 6 February 2002 the appellant recovered Z$3 million

 

suspected to be proceeds from the robbery from one Sithembiso Dube, who is suspect

 

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Sidingumuzi’s mother.  He allegedly converted part of that amount, i.e. around  

 

Z$936 500, to his own use.  In July 2002 the appellant allegedly made several calls to

 

suspect Sidingumuzi and his sister Ntokozo Sibanda, soliciting for a bribe of    

 

US$15 000 in order not to arrest Sidingumuzi for the South African armed robbery

 

case.

 

            In the court a quo, the appellant was content with limiting his application to

 

oral submissions by his legal practitioner.  He did file an affidavit in support of his

 

application.  Procedurally, there is nothing with that.  In Dumisani Ndlovu v The State

 

HH-177-01 at page 8 of the cyclostyled my judgment I referred to what DIEMONTJ

 

said in S v Nichas 1977(1) SA 257 (C):

 

“It is a notorious fact that in a majority of cases ex parte statements are made both by the defence and by the public prosecutor who intimates what the police objections are.  There are no formalities, no evidence is led, no affidavits are placed before the court and the record is so meagre that there may be little or nothing to place before the Superior Courts if the matter is taken on appeal.  This easy-going procedure has both advantages and drawbacks.”

 

            This approach by the appellant, however, impacts on the quality of the

 

evidence in support of the application.  This is so such cases where the other party

 

decides to call viva voce evidence in opposing the application.

 

Approach

 

The approach in this matter is whether the magistrate misdirected herself when

 

she refused the appellant bail.  I need to emphasise this aspect because the matter was

 

argued as if I am hearing the bail as a court of first instance.  The appeal should be

 

directed at the judgment of the court a quo.  It is the findings of the court a quo that

 

the appellant should attack.  From her judgment, the learned trial magistrate made a

 

positive finding on the credibility of the sole witness who testified, the investigating

 

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officer, Chief Superintendent Nyathi.  This finding, in my view, is unassailable.  In

 

any event the appellant does not seem to challenge such a finding on the demeanor of

 

Officer Nyathi.  Such a positive finding does not necessarily mean that the appellant

 

should have been refused bail.  That decision is for the court to make after weighing

 

all the facts at its disposal.  It seems to me that the learned trial magistrate arrived at

 

her decision on the basis of risk of abscondment and interference with the

 

administration of justice.  I propose to examine each of these findings to determine

 

whether or not there were misdirections.  The primary question for determination by

 

the court a quo, was whether the appellant will stand trial or abscond.  Of equal

 

important was whether he will influence the fairness of the trial by

 

intimidating/influencing witnesses or tampering with evidence.  It is trite that in bail

 

applications the court has to strike a balance between the interest of society (the

 

applicant should stand trial and there should be no interference with the

 

administration of justice) and the liberty of an accused person (who pending the

 

outcome of his trial is presumed to be innocent) –  see Attorney-General, Zimbabwe v

 

Phiri1988 (2) SA 696 (ZHC);  R v McCarthy 1906 TS; S vMhlauli and Ano 1963(3)

 

SA(C) at 796B; S v Hussey 1991(2) ZLR 187 (SC) and S v Aitken (2) 1992(2) ZLR

 

463 (SC)

 

Risk of Abscondment

 

There are factors which may, either on their own or on a cumulative basis,

 

assist the court in making a proper assessment of the risk.  The court a quo, referred to

 

the seriousness of the offences as a source of inducement to abscond on the part of the

 

appellant.  In casu, the appellant was a detective inspector who is alleged to have

 

stolen sums of money recovered during the course of his duties.  In the first count the

 

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stolen large amount is Z$950 000 and in the second count Z$936 500.  On the third

 

count he is alleged to have corruptly tried to solicit a bribe of US$15 000 from a

 

person who he knew was wanted for a very serious crime of armed robbery

 

committed outside our jurisdiction.  Each of these three offences would attract

 

imprisonment if the appellant is convicted.  Cumulatively they would attract a very

 

lengthy term of imprisonment.  By virtue of his position and experience in the police

 

force the appellant is obviously aware of these possible consequences.  In the

 

circumstances, the court a quo did not misdirect itself in this regard.  On its own, this

 

factor, in the circumstances of this case, would not justify refusal of bail.  It seems to

 

me that the court a quo took it cumulatively with other factors as evinced by the

 

remark on page 3 of the judgment.

 

            “The other reason was the seriousness of the offence.” (emphasis is mine)

 

            The likelihood of a lengthy prison term being imposed (i.e.seriousness of the

 

offence) is a factor to be taken into account in assessing the risk of abscondment – see

 

Sv Hudson 1980(4) SA 145 (D);  S v Ito 1979(3) SA (w) 740 and Dumisani Ndlovu v

 

S (supra).  There is no misdirection in the court a quo’s finding the offences are

 

serious and that this may likely be inducement to abscondment on the point of

 

appellant.  This is one of the factors taken into account in refusal of bail.

 

Interference with the administration of justice

 

            The court a quo found that the likelihood of interference with evidence by the

 

appellant was high.  It also found that there had already been attempts to do so.  It was

 

found that the appellant works with most of the witnesses who were his subordinates. 

 

The court a quo also found that there was evidence of interference with the

 

administration of justice attributable to the appellant.  First, in respect of the arrest and

 

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subsequent release of supsect Sidingumuzi’s mother (the learned trial magistrate

 

erroneously refers to Sidingani).   Second, the disappearance of Ntokozo.  In the

 

circumstances, the courta quo, after making reference  S v Maratera SC 93-91,

 

held that it has been shown that there has already been attempts (page 2) to interfere

 

with evidence.  I agree that it is trite that where is has been shown that the accused

 

had interfered with evidence, a court is justified in denying him bail – see also S v

 

Chiadzwa1988(2) ZLR 19; S v Murambiwa SC 62-92; S v Maharaj 1976(3) SA 205

 

(D).  The court should, however, not refuse bail on the bare assertion of the state,

 

there must be enough reason for such a conclusion – see Sahumani v S HB-91-84 and

 

Sv Hussey (supra).  In other words, grounds for refusal of bail should be reasonably

 

substantiated – see Mbele v Prokureur-General 1966(2) PH, H 272 (T).  The court a

 

quo, did not misdirect itself in this regard.

 

            As I am unable to find any misdirection on the part of the court a quo I cannot

 

interfere with its determination.  The court a quo took into account the cumulative

 

effect of the above two factors and arrived at a decision that the appellant is not a

 

suitable candidate for bail at that stage.  The said finding is unassailable and the

 

appeal must, therefore fail.

 

            I accordingly, dismiss the appeal against the magistrate’s decision to deny the

 

appellant bail.

 

 

 

 

 

Mabhikwa, Hikwa & Nyathiappellant’s legal practitioners

Criminal Division of the Attorney-General’s Officerespondent’s legal practitioners