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