ELTON MANGOMA

versus

THE STATE

HIGH COURT OF ZIMBABWE

KUDYA J

HARARE, 15 March 2011

Bail application

S. Hwacha,for the applicant

C. Mutangadura,for the respondent

KUDYA J: This is an application for bail pending trial. On 11 March 2011 the applicant was indicted by the magistrate sitting at Harare for trial on 28 March 2011 at the High Court. As he was mandated to do by s 66 (2) of the Criminal Procedure and Evidence Act [Cap 9:07], the indicting magistrate committed him to prison pending trial. The same provision allows the applicant to seek bail if he so desires, hence the present application.

In our law, the onus lies on the applicant to show on a balance of probabilities that he is a suitable candidate for admission to bail. See Aitken & Anor v Attorney-General 1992 (1) ZLR 249 (S) at 253D; S v Makamba (3) 2004 (1) ZLR 367 (S) 369F. The basic principles for admission to bail were crystallized by CHIDYAUSIKU CJ in S v Jongwe 2002 (2) ZLR 209 (S) at 214G-215D thus:

“In the case of Aitken & Anor v Attorney-General 1992 (1) ZLR 249 (S) this Court reviewed a long line of cases and laid down the following guiding principles for the determination of bail applications:

1. That the Supreme Court can only interfere with a High Court decision if there has been a misdirection or irregularity in the High Court or if the judge had exercised his discretion in a manner which was so unreasonable as to vitiate the decision reached.

1. That when dealing with the matter of bail the court has to strike a balance between the liberty of the accused and the State’s need to ensure that the person stands trial and does not interfere with the course of justice
2. That the onus is on the accused to show on a balance of probabilities why it is in the interests of justice that he should be freed on bail, but that the amount of evidence necessary for him to discharge this onus would vary according to the circumstances of each case.

       (d) That in judging the risk that an accused person would abscond the court

             should be guided by the following factors:

1. the nature of the charge and the severity of the punishment likely to be      imposed on the accused upon conviction;

1.  the apparent strength or weaknesses of the State case;

1. the accused’s ability to reach another country and the absence of extradition facilities from the other countries;

1. the accused’s previous behaviour;

1. the credibility of the accused’s own assurance of his intention and motivation to remain and stand trial;

1. That the risk of interference with investigation if alleged must be well founded and not based on unsubstantiated allegation and suspicion.”

These principles are set out in more detail in Part IX of the Criminal Procedure and Evidence Act, supra, especially in sections 116 and117. The format of a bail application is the subject of s 117A of the same Act.

In the present matter while the applicant averred that he was a suitable candidate for admission to bail, the respondent opposed bail on two grounds. The first was that the applicant was a flight risk and the second was that there existed a real likelihood that he would interfere with State witnesses. In resolving this dispute, I will apply the principles set out inAitken’s case and approved in Jongwe’s case, supra.

The applicant set out the basis why he considers himself a suitable candidate for admission to bail. He firstly dwells on his personal circumstances, which by the way, are common cause. He is a 55 year old Zimbabwean national who resides at a house in Harare with his family. He is a chartered accountant. He is the Minister of Energy and Power Development in the inclusive government of the Republic of Zimbabwe. He is the Deputy Treasurer General and acts as the treasurer general in the absence of the incumbent in the Movement for Democratic Change (T), a political party which forms one of the tripod of the inclusive government.

Mr Hwacha, for the applicant, contended that his roots are firmly embedded in Zimbabwean soil and submitted that because of them, he had no desire or inclination to leave his homeland. Mr Mutangadura, for the respondent, submitted that those personal circumstances were a double edged sword whose other edge would impel him as a sophisticated, resourceful and highly mobile individual to leave our borders and set up a new home abroad without difficulty. Thus while the applicant averred that he was not a flight risk by virtue of his standing, the respondent submitted that he posed such a risk precisely because of it.

Mr Hwacha countered by contending that the applicant had no cause to run away from the jurisdiction of this court because the case he is facing is not only weak but is in reality non-existent. Mr Mutangadura countervailed by contending that the case against him was so strong that conviction was certain and the impulse to flee high. It must be said that he deliberately avoided making any reference to the punishment that would visit the applicant on conviction.

The first argument embosses consideration (d) of theJongwe formulation set out above. I turn to apply its constituent elements to the present application.

On the nature of the charge and the severity of the punishment likely to be imposed on the accused upon conviction and strength or weakness of the state case Mr Hwacha contended that the state case was so weak that the likelihood of a conviction was absent. The state case is that the applicant abused his office by ordering his subordinates to procure fuel from a South African company in breach of the provisions of the Procurement Act [Cap 22:14] and its regulations. It was specifically alleged that he contravened s 174 (2) as read with s 174 (2) of the Criminal Law (Codification and Reform) Act [Cap 9:23] that in his capacity as the Minister and therefore a public officer he directed the Acting Chief Executive Officer of PetroTrade to purchase five million litres of diesel from Nooa Petroleum (Pty) Ltd without going to tender in order to show favour to Nooa whilst showing disfavor to approved companies duly Gazetted. In the alternative he will be charged with contravening s 30 of the Procurement Act as read with s 5 (4) (a) (ii) and s 35 of the Procurement Regulations SI 171/2002 in that he instructed PetroTrade to purchase 5 million litres of diesel from Nooa without going to tender, a condition precedent for all purchases above US$50 000.00.

The main charge carries a maximum financial penalty of level 14(US$5 000.00) or imprisonment not exceeding fifteen years while the alternative carries a maximum financial penalty of level eight (US$600.00) or imprisonment not exceeding two years.

              The maximum sentence is reserved for the most serious infraction. It is not in doubt that the offence is serious regard being had to the allegations of abuse of office by a cabinet minister. The sentence to be imposed will be a function of conviction. Mr Hwacha contended that the framed charge is out of sync with the facts sought to be proved at the trial as set out in the summary of state case. The incriminating evidence at the trial will consist of the oral versions of the personnel who came into contact with the minister during the discussions leading to the purchase of fuel. These have been identified as his permanent secretary, his director of procurement and the acting chief executive officer of PetroTrade. In addition the respondent will rely heavily on the letter signed by the minister authorizing the purchase of the diesel without going to tender. The scanty facts before me suggest that fuel was purchased after the conclusion of a supply agreement between PetroTrade and Mowhelere from Mowhelere. The link between the supplier and Nooa is not established in the scanty facts. Mr Mutangadura did not respond to this apparent lacuna in the facts. The failure to address this gap in the allegations in the bail application undermines the respondent’s averment that it has a strong and water tight case against the applicant.

The other submission made on behalf of the applicant which tends to undermine the strength of the respondent’s case will be the legal argument concerning whether PetroTrade is a procuring entity as defined in the Procurement Act. It is a private company which is distinct in law fromprocuring entities defined in section 2 of the Procurement Act. It is not the State Procurement Board, Ministry, department or other division of the Government; or a statutory body that engages in procurement or any local authority or other person declared in terms of subsection (2) to be a procuring entity. The respondent may have an uphill battle to establish that PetroTrade is a procurement entity.

To the extent that these are concrete as opposed to fanciful factors that the respondent will have to contend with, its case against the applicant cannot be said to be strong.

            There is another factor which affects the strength of the respondent’s case. It is that some of the witnesses it seeks to rely on, to the extent that they appreciated their actions were unlawful, may properly be regarded as accomplice witnesses. The caution with which their evidence will be treated may affect its probative value and thus further weaken the respondent’s case. The credibility of witnesses will assume prominence at the trial. That the applicant may be telling the truth that he did not raise the incriminating letter may be true regard being had to the reproduction in the respondent’s opposing papers.An official does not copy to himself a letter he has written as appears in the reproduction.

 I agree with the sentiments expressed by GWAUNZA JA, cited by Mr Mutangadura, in Kuruneri v StateSC40/2004 at page 4 of the cyclostyled judgment. It reads:

“Although every case must be determined on its own merits, this Court has held in Aitken & Anor v Attorney General 1992 (1) ZLR 249 at 253 that although the court must heed such an averment, implicit reliance cannot be placed on the appellant’s mere say so. This is because, the court noted, an accused who harbors an intention to abscond is not likely to admit it.”

And at the bottom the LEARNED JUDGE OF APPEAL quoted the judgment of Aitken that:

“On the other three charges (relating to Exchange Control) I have found that the State’s case is quite strong, the applicant’ explanation very weak or even improbable, the charges are very serious and the punishment upon conviction is likely to be severe as to induce the applicant who has both substantial means, family, friends and connections abroad, to abscond.”

Those sentiments applied to Aitken. They do not apply in the present matter. In my respectful view, the State case appears to me to be weak. It is not the type of case that would induce the applicant to abscond. I was not addressed on punishment if convicted. I proffer no opinion on the likely punishment if he is convicted. But it seems to me that in the absence of evidence that the applicant personally benefited from the deal, his actions were prompted by a national crisis. As Minister responsible for energy all Zimbabweans looked up to him to provide a quick solution to the problem. His well meaning response to a national emergency may prove highly mitigatory. Courts do accept that at times paths to hell are often paved with good intentions. Those good intentions may prove highly mitigatory.

As regards his mobility and ability to reach other countries without extradition; this factor was mentioned in passing and was not really debated. I was asked to surmise that because of his political standing he may easily run away. I note in passing that the extent of his connections abroad was not provided. Both Makamba and Kuruneri’s foreign assets were provided by the respondent. In the present matter no such concrete facts were placed before me. I am therefore not able to conclude that he will be able to run away to countries that are beyond the reach of Zimbabwean law enforcement agencies.

His previous behaviour has not portrayed him as a flight risk. There is no evidence that he attempted to flee or avoid his arrest notwithstanding that he may have suspected that it was imminent.

 In the light of my findings on strength or lack thereof of the State case, factors raised by his counsel, I accept that he has no motivation to evade justice. His assurances that he will abide by any bail conditions imposed do carry weight.

The second ground for opposing bail was that he would interfere with witnesses who are his subordinates. Such an averment must be backed by tangible facts. None were laid before me. It has not been shown that he tried to muzzle any of his officers. It does not seem to me that the witnesses that have been lined up against him are the type that he would easily intimidate or attempt to suborn. He would do so at the peril of his liberty. In any event the fact that he has been indicted for trial shows that all investigations are complete.

I am therefore satisfied that the applicant is not a flight risk. I am also satisfied that he will not interfere with any of the State witnesses. Accordingly, he is a good candidate for admission to bail.

He is granted bail pending trial.

It is ordered that:

1. The applicant be and is hereby admitted to bail in the sum of US$5 000.00 to be deposited with the clerk of court at Harare Magistrates Court
2. The applicant shall reside at No. 25 Pendennis Road Mount Pleasant, Harare, pending the final determination of his trial.
3. He shall report at Marlborough police station once a week every Wednesday between the hours of 0600 and 1800.
4. The applicant shall surrender his passport to the clerk of court Harare magistrate Court Harare.
5. He does not interfere with any state witnesses set out in the indictment papers.

Dube, Manikai &Hwacha, applicant’s legal practitioners

Criminal Division of the Attorney General’s Office,respondent’s legal practitioners