REPORTABLE ZLR (14)

Judgment No. SC 30/04

Crim. Application No. 119/04

JAMES CHAFUNGAMOYO MAKAMBA v THE STATE

SUPREME COURT OF ZIMBABWE

HARARE, APRIL 8 & APRIL 23, 2004

G Chikumbirike, for the appellant

M Nemadire, for the respondent

In Chambers, in terms of s 5 of the Supreme Court Rules.

ZIYAMBI JA: This is an appeal against a judgment of the High Court refusing bail to the appellant.

The appeal is one in the narrow sense in that:

“… in the absence of an irregularity or misdirection, this Court has to be persuaded that the manner in which the [learned JUDGE] exercised his discretion was so unreasonable as to vitiate the decision reached. See S v Barber 1979 (4) SA 218 (D) at 220E-G; S v Chikumbirike 1986 (2) ZLR 145 (S) at 146F.”

See Aitken & Anor v Attorney-General 1992 (1) ZLR 249 (SC). In other words the powers of this Court to interfere with the judgment of the court a quo are limited to the finding of a misdirection occasioning a substantial miscarriage of justice or a finding of an unreasonable exercise of the court’s discretion with the resultant effect set out above.

The facts, briefly, are that the appellant was arrested on charges of contravening section 5 (1) of the Exchange Control Act [Chapter 22:05] (“the Act”) as read with subsection 4 (1) (a) (i), 11 (1) (a) and 11 (1) (b) of the Exchange Control Regulations 1996 S.I. 109 of 1996 (‘the Regulations’). He was subsequently placed on remand in custody pending his trial on those charges. Following a referral back to the High Court of an earlier appeal to this Court for the release of the appellant on bail, the matter was heard and determined on the merits by the High Court (CHITAKUNYE J)and bail was refused on the grounds that the appellant was likely to interfere with the police investigations. It was ordered by CHITAKUNYE J that the matter could be reviewed after three weeks. The three weeks having elapsed, an application was again brought to the High Court and determined by KAMOCHA J.

The learned Judge considered the application and refused bail on the grounds that:

“There is a real danger that if the applicant has the capacity to repatriate such huge sums of hard currency there is great temptation for him to abscond and live outside this country on those monies for the rest of his life. It therefore seems to me that on this ground the applicant is not a suitable candidate for bail.”

It was submitted on behalf of the appellant that the finding of ‘huge amounts’ was derived from bald allegations set out in an affidavit by the investigating officer who did not indicate how the allegations would be proved at the trial,

(See S v Ncube infra) and that accordingly, the learned Judge misdirected himself when he accepted without more, the said allegations in arriving at the conclusion that the appellant had huge sums of money outside the country. It was also submitted that the learned Judge having accepted that the appellant would not abscond misdirected himself when he denied bail on the ground that the likelihood of abscondment was great.

Mr Nemadire for the State, on the other hand, submitted that there was no misdirection in that CHITAKUNYE J was not conclusive on the issue of abscondment and had not ruled out the likelihood of abscondment by the appellant. What the learned Judge had said was that the level of the likelihood of abscondment was not clear to him and that had this been the only ground on which bail was opposed he would probably have granted bail. This is the statement, which was referred to with approval by KAMOCHA J. It certainly was not said by CHITAKUNYE J or adopted by KAMOCHA J, that there was no likelihood of the appellant absconding.

In exercising his discretion in this matter the learned Judge was bound by certain principles. They are:

“The basic purpose from society's point of view of the procedure known as ‘bail’ is to strike a balance between two competing interests - the liberty of the accused, and the requirement of the State that he stand trial to be judged and that the administration of justice be safeguarded from interference or frustration.”

(Aitken & Anor supra).

The primary considerations applicable in assessing evidence and submissions in a bail application are -

1. whether the applicant will stand trial in due course;

2. whether the applicant will interfere with the investigations of the case against him or tamper with the prosecution witnesses;

3. whether the applicant will commit offences when on bail;

4. other considerations the court may deem good and sufficient.

The onus is upon an accused person to show on a balance of probabilities why it is in the interests of justice that he should be freed on bail. (Aitken & Anor supra. See also S v Chiadzwa 1988 (2) ZLR 19.

“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.”

(See S v Fourie 1973 (1) SA 100 at p 101.).

There is no indication on the record that the above principles were not followed. The learned Judge having considered the merits of the application arrived at his conclusion as set out above. Was there a misdirection?

The affidavit of the investigating officer attached to the application shows that -

1. in November 1998 the appellant concluded an agreement of sale with a UK resident to purchase a Harare property, No 19 Willowmead Lane, Colne Valley at a price of 210 000 British pounds of which a deposit of 30 000 pounds was paid and the balance was to be paid by installments. It is alleged that the appellant is the owner of the property.

2. in the year 2003 – 2004 the appellant entered into another sale agreement with Athol (Private) Limited South Africa for the purchase of property described as Unit 1 Solitaire, 73A Pretoria Avenue, Athol, Johannesburg, South Africa. The purchase price was ZAR 6 800 000. A down payment of ZAR 680 000 was made and the balance was to be paid in installments.

2. In October 2000, the appellant entered into an agreement to purchase Ravine House, 87 George Hill, Wry Bridge, London, United Kingdom. The property was to be purchased by the appellant for 3 500 000 pounds.

2. In December 2000 the appellant entered into an agreement with Mendelous, Jacobs Attorneys of 243 Djon Road, Johannesburg, South Africa to purchase the entire shareholding of Fortworth Properties (Private) Limited in the amount of ZAR 6.1 million.

In addition, it was alleged that the appellant has operated the following foreign accounts without prior authorization from the Exchange Control Authority -

(a) F.N.B. South Africa

(b) Bankers Trust, New York

(c) Ned Bank of South Africa

(d ) Bank of Ireland Private Banking – (London account number given)

5. General Pacific Bank Barclays Bank

(Channel Islands - United Kingdom, New

Horizon (Private) Limited offshore

(All account numbers given).

It was alleged that the total amounts involved on all counts amount to: 3 773 650 British pounds, USD 2 117 44 and ZAR 14 97 966,03 and it was believed that in view of the appellant’s many contacts and wealth abroad, the temptation to abscond was great.

The learned judge took into consideration that should the appellant be convicted of the offences with which he stands charged, he would be required to repatriate those amounts within three months failing which the mandatory provisions of s 5 (7) (a) & (b) of the Act would take effect resulting in the imposition, on the appellant, of an additional sentence of imprisonment over and above any fine required by s 5(4) of the Act.

Subsection 5 (7) provides as follows:

“(7) where a person convicted of an offence referred to in paragraph (a) of subsection (6) does not satisfy the court as to one or other of the requirements mentioned in subparagraph (i) and (ii) of paragraph (b) of subsection (6) the court shall –

1. in all cases have regard to that as a factor in aggravation of sentence; and

2. if the convicted person is an individual and the value of the property concerned exceeds two hundred dollars, impose a sentence of imprisonment for such a period as the court deems fit in addition to any fine required by subsection (4).”

Subsection (6) provides:

“Where a person –

1. is convicted of an offence in terms of –

1. paragraph (a) of subsection (1) which involves the exportation from, or acquisition outside, Zimbabwe of any gold, currency, security, goods or other property whatsoever in contravention of this Act; or

2. ……

and

2. does not satisfy the court that –

1. foreign currency in an amount of not less than the value of such property which has been exported from, or acquired outside, Zimbabwe has been received in Zimbabwe;

the court may, before passing sentence, adjourn the proceedings for such period not exceeding three months as the court deems fit in order to give the convicted person an opportunity of so satisfying the court on the resumption of the proceedings.”

The learned Judge was entitled to take this factor into account. The amounts involved in the purchases of the various properties in the United Kingdom and South Africa are considerable, far in excess of three million British pounds. In order to be able to commit to the purchase of these properties, considerable sums had to be available to the appellant in foreign currency in order to make good his commitments in relation thereto.

The bank account numbers so far as the police have been able to ascertain were all given. It is the details concerning the amounts held in those accounts and any transactions in relation thereto which were not made available to the Court. It is known that documents relating to the account in South Africa were obtained by the police although details of this account were not presented to the court. However, even without actual knowledge of the amounts reflected in the bank accounts, the very purchase agreements and, in some cases, the deposits paid, raise a prima facie case that at the very least the appellant is possessed of substantial wealth in the form of properties outside this country.

“In judging the risk of abscondment, the court ascribes to the accused the ordinary motives and fears that sway human nature. Accordingly, it is guided by the character of the charges and the penalties which in all probability would be imposed if [the applicant is] convicted: the strength of the state case; the ability to flee to a foreign country and the assurance given that it is intended to stand trial. It is apparent that the more serious the charge and the heavier the sentence is expected to be, the greater will be the temptation to flee.”

(See Aitken & Anor supra)

The learned Judge did not comment on the strength of the State case. However the allegations against the appellant are that he, without exchange control authority, operated a number of accounts in South Africa, Britain and the United States of America and entered into binding agreements to purchase properties in South Africa and Britain in contravention of s 11 (1) (a) and (b) of the Act which provide as follows:

“11. (1) Subject to subsection (2), unless otherwise authorized by an exchange

control authority, no Zimbabwean resident shall –

1. make any payment outside Zimbabwe; or

2. incur any obligation to make a payment outside Zimbabwe.”

In consequence of these agreements, it is alleged that the appellant paid deposits in foreign currency in contravention of s 11 (1)(a) of the Act. It is alleged that the appellant is the owner of a number of properties abroad. He is also charged with dealing in foreign currency in contravention of section s 5 of the Act as read with s 4 (1)(a) (i) of the Regulations.

Apart from his comment that there is no proof of such properties, the appellant has neither admitted nor denied the allegations against him. He has based his application on the perceived misdirection by the Judge, the fact that he has been in detention for a long period; and the fact that he is unlikely to abscond having regard to his substantial wealth and political and social standing in Zimbabwe. It was alleged that he is a well-known public figure who has strong roots and ‘massive investments’ in Zimbabwe. He is a self-made businessman running billion-dollar businesses such as supermarkets, farms, and security organizations and owns several properties in Harare and Bindura. The allegation that he has many contacts, and owns several properties, outside Zimbabwe has not been challenged. As was said in a similar case:

“The implications from this are that the appellant(s) could reward most handsomely, in local and foreign currency, any party willing to undertake or assist in [his] illicit removal, and that he would be able to live fairly comfortably outside Zimbabwe.”

(See Aitken & Anor supra.)

In the instant case, the learned Judge arrived at the same conclusion after taking into consideration the wealth alleged to be possessed by the appellant externally. I find no misdirection in this aspect of the judgment.

It was further submitted that the learned Judge having approved the judgment of CHITAKUNYE J misdirected himself in proceeding to refuse bail on the grounds that the appellant was likely to abscond. A reading of the judgment of CHITAKUNYE J shows that he did not rule out the likelihood of abscondment by the appellant. What he said was:

“Another aspect of interest is the fact of the appellant’s bank accounts outside the country. Whilst two of those accounts were denied others were admitted. Each of those admitted accounts have some money which is available to the applicant. He indicated that there could be about 4 - 5000 R and in his Nedbank Account and another 20 000 – 25 000 British pound sterling in his Bank of Ireland Private Banking Account in London.

Whatever the sources of those funds are, the reality is that money is available for the applicant’s use should he wish to go to those countries.

In as far as means to survive outside the country are concerned, the applicant is not short. He would not be incapacitated by lack of means. Abscondment cannot therefore be entirely ruled out. It is the level of its likelihood that is not clear to me. Had this been the only ground for opposing the grant of bail, I probably would have granted bail. However there are other aspects referred to below to be considered together with the above ground.”

He went on to dismiss the application on the grounds that the appellant might interfere with investigations.

The words quoted above do not, in my view indicate that the learned Judge dismissed the likelihood of abscondment or that he would definitely have granted bail if that were the only ground. It was merely a statement of what he might have done. In referring to that aspect of the judgment KAMOCHA J said:

“I shall make reference with approval, to the judgment of the learned Judge which summarized the State’s objections to the granting of bail. When dealing with the question of abscondment, the learned Judge held a view that it (abscondment) could not be entirely ruled out. However, the level of its likelihood was not clear to his lordship.”

I do not agree with Mr Chikumbirike that these words suggest that the court a quo adopted a finding by CHITAKUNYE J that bail could not be refused on grounds of the likelihood of abscondment. Clearly the opposite appears to be true from that statement. Abscondment in his view could not be entirely ruled out. That was the finding adopted by the court a quo. On the facts placed before him the learned judge found that the level of the likelihood of abscondment was high. He was entitled to arrive at his own conclusion on the facts placed before him and that is what he did.

The other ground of contention advanced by the appellant is that the learned Judge posed the question:

“‘Is there any other reason why I may refuse to admit the applicant to bail which may seem to me good and sufficient?’

I propose to deal with the question of the amounts involved and the provisions of the Exchange Control Act. It admits of no doubt that the amounts are huge regard being had to the fact that the amounts involved had currencies. To my mind 3 73 650 [British pounds], $2 117 444 US, and ZAR 14 97 996,03 are huge sums of money.”

The learned Judge took the view that if the appellant were to be convicted, he would be required to repatriate the amounts and if he failed to do so he would be sentenced to a term of imprisonment by operation of law. For this reason he felt that the temptation to the appellant to abscond was great in view of the wealth possessed by him outside the country. He therefore considered the appellant not to be a good candidate for bail.

The contention advanced on behalf of the appellant was that the learned Judge, by basing his decision on “another reason”, had ruled out the likelihood of abscondment as a reason for refusal of bail. He therefore contradicted and misdirected himself when he went on to refuse bail on the ground of the likelihood of abscondment.

It is true that the learned Judge expressed himself in a somewhat muddled manner. But this having been said, it was the fact of the appellant’s wealth abroad and the serious consequences of a possible conviction, which swayed the learned Judge to think that abscondment was a great likelihood in the appellant’s case. This view of the learned Judge appears to be borne out on the papers. Accordingly I do not regard this as a misdirection.

The final contention advanced was that there was no foundation for the finding that “huge sums of hard currency” were involved in that in his affidavit, (the excerpt is set out in the judgment of the court a quo) Chief Superintendent Mabunda, the investigating officer, did not explain how these figures were arrived at but merely made bald assertions, a practice which was criticised in S v Ncube 2001 (2) ZLR 556(S).

In that case SANDURA JA observed:

“I should add that in determining a bail application the strength of the case for the prosecution should be assessed. As MILLIN J said in Liebman v Attorney-General 1950(1) SA 607 (W) at 609:

‘The court looks at the circumstances of the case to see whether the person concerned expects, or ought to expect, conviction. If it is found on the circumstances disclosed to the court that the likelihood of conviction is substantial, that the person ought reasonably to expect conviction, then the likelihood of his absconding is greatly increased. Thus the court goes into the circumstances of the case, that is, the evidence at the disposal of the Crown. Where there has been a preparatory examination that is the material which is used. Where no preparatory examination has yet been held the court has to consider such material as is furnished to it by the accused himself (the applicant) or by the Attorney-General or his representative.’

In the present case, the strength of the state case was not assessed. The application was dismissed on the basis of bald allegations set out in an affidavit by the investigating officer who did not indicate how the allegations would be proved at the trial.”

Similarly the strength of the State case was not assessed in the instant case. It ought to have been. However, the allegations made in the affidavit of the investigating officer are fairly detailed and raise at least a prima facie case against the appellant. The persons in foreign countries with whom the appellant entered into binding agreements of sale in respect of the properties have been mentioned as well as, in some cases, the deposits paid in respect of the purchase of the properties. In addition, Telecel, the company of which the appellant is chairman has been prosecuted and convicted for its part in purchasing foreign currency from the appellant. Among the charges faced by the appellant are allegations that he illegally sold foreign currency to Telecel. In such circumstances an applicant would be expected, in attempting to discharge the onus upon him, to deny the allegations or place before the court such information as would tend to establish his innocence. The appellant has done neither. He has not denied or explained what he terms as the ‘bald allegations’ made by the investigating officer. The only indication as to the appellant’s response to the allegation that he operated several foreign currency accounts outside the country appears in the judgment of CHITAKUNYE J where the appellant claimed to have some 25000 British pounds and 5000 South African Rand in two accounts outside the country - suggesting that oral submissions to that effect were made before him.

Before KAMOCHA J, who reviewed the matter afresh, no attempt was made to deny the charges or to place any information before the court which might tend to show the appellant’s innocence or that the prosecution against him on those charges was unlikely to succeed or, further, that even if he were to be convicted of these offences the penalties liable to be imposed are not so onerous as to present a temptation for him to abscond; or that the interests of justice would not be prejudiced by his release on bail. What the appellant has told the court is that because of his position and standing as well as his substantial wealth in this country it would be ‘suicidal’ for him to abscond. But this was countered by the State with the unchallenged allegation that other prominent persons of substantial wealth have fled this country when their arrest on similar charges seemed imminent.

Accordingly there is nothing on the papers filed of record which would persuade the learned Judge that the appellant had discharged the onus which is upon him to satisfy the court that he will stand his trial if released on bail and I did not understand Mr Chikumbirike to argue otherwise.

In the circumstances, I am unable to find that the learned Judge misdirected himself in relying on the facts placed before him.

It follows from the above that I have found no misdirection resulting in a miscarriage of justice. Nor am I persuaded that the manner in which the learned Judge exercised his discretion was so unreasonable as to vitiate the decision he arrived at.

Accordingly there is no option open to me but to dismiss the appeal, and it is hereby dismissed.

Chikumbirike & Associates, appellant’s legal practitioners

Attorney General’s Office, respondent’s legal practitioners