Appeal
against Refusal of Bail Pending Trial
KWENDA
J:
Introduction:
The
appellant is a female adult. She is the wife of the Vice President of
Zimbabwe. The couple live together in an unregistered customary law
union. The union is blessed with children who are all minors. They
live in the Borrowdale Brooke in Harare. She is a successful business
person in her own right.
On
the 16th December 2019 the appellant appeared before the Deputy Chief
Magistrate charged with six counts of exporting currency in
contravention of section 5(1)(a) of the Exchange Control Act [Chapter
22:05] as read with section 20(1)b of the Exchange Control
Regulations Statutory Instrument 109/1996. She is also charged with
five counts of Money Laundering in contravention of section 8(2) of
the Money Laundering & Proceeds of Crime Act [Chapter 9:24].
She
also faces a charge of fraud as defined in section 136 of the
Criminal Law (Codification and Reform Act [Chapter 9:23].
She
applied for bail pending trial.
The
Deputy Chief Magistrate, who presided, dismissed the application for
bail on the 19th December 2019. Appellant has therefore remained in
custody since her arrest on the 14th December 2019.
On
the 18th December 2019, the appellant appealed against the refusal of
bail in terms of section 121(1) of the Criminal Procedure and
Evidence Act [Chapter 9:07].
The
hearing was delayed because the preparation of the record of
proceedings took time. The transcript only became available on the
27th December 2019 and was received by this Court on the same day.
The 27th of December 2019 was a Friday so the matter was set down for
argument on the 30th December 2019 to give time to the State to
peruse the record and consider as informed response.
A
bail application is inherently urgent because it is concerned with
infringement of the right to liberty, human dignity and personal
security, among other fundamental rights and freedoms. The High Court
of Zimbabwe (Bail) Rules, 1981 enjoin the Registrar to ensure that
every bail application or appeal is set down with utmost urgency1.
The
mandate on the Registrar can only be properly discharged if the
Registrar ensures that all things that need to be done for the
application or appeal to be properly adjudicated on are completed
expeditiously. Delaying the availability of a transcript of simple
bail proceedings in the court a quo by two weeks is inexcusable. The
rules contemplate a situation where the appeal is heard within 98
hours, except where there is a written agreement between appellant
and the State or an order of the court. 2
Purporting
to set a matter down in terms of the rules without ensuring that
everything is in place for the matter to be heard is an empty
delivery of a statutory duty. There is no obligation on the appellant
to make the record available. Should such conduct persist the Court
may in future make remedial orders.
The
Background Facts
Exchange
Control Violations
The
appellant faces six counts of exporting currency in contravention of
section 5(1)(a) of the Exchange Control Act [Chapter 22:05] as read
with section 20(1)b of the Exchange Control Regulations Statutory
Instrument 109/1996. These counts can be summarised as follows:-
Count
One
It
is alleged that certain named two personal assistants of the
appellant unlawfully took a total of USD$114,000-00 to the Republic
of China on behalf of the appellant after exiting Zimbabwe through
Robert Mugabe Airport without declaring such currency. The alleged
exportation of the currency was in contravention of the Exchange
Control Act [Chapter 22:05].
Count
Two
In
November 2018, the appellant allegedly unlawfully externalised a sum
of USD201,846.81 through a CBZ bank telegraphic transfer after
misrepresenting in writing to the bank that the money was for the
purchase of event tents and chairs. She allegedly instructed one
Memory Chakuinga to prepare an invoice which she (the appellant)
presented to the bank as proof that the money was payment for event
tents and chairs. The bank transferred the foreign currency from
Zimbabwe to the alleged suppliers' South African bank account.
Thereafter,
the appellant allegedly diverted the money with the help of Memory
Chakuinga to Land Rover Centre in South Africa as payment for a Range
Rover Autobiography which appellant registered in her name in South
Africa.
Count
Three
Using
the same method of operation as described in Count Two, the appellant
allegedly caused the CBZ Bank in Zimbabwe to transfer USD307,545-05
to Project Suppliers (Pvt) Ltd Bank account in South Africa,
ostensibly to import prepaid meters. The money was not used to buy
prepaid meters but was diverted with the help of Memory Chakuinga and
used to buy an immovable property at 1309 Kingstone Heath Close
Waterkloof Gold Estate, Pretoria, SA. The property is registered as
the property of Lachelle Travel and Tours (a company wholly owned by
the appellant).
It
is alleged that the appellant therefore externalised the sum of
USD307,545,05 through misrepresentation.
Count
Four
In
February and March 2019, the appellant allegedly asked one Judith
Gamuchirai Goredema to pay ZAR3,000,000 for the purchase of two
vehicles, namely a Range Rover and Ford Ranger in South Africa. The
money was sourced and paid, in South Africa on appellant's behalf.
In return the appellant gave Judith Gamuchirai Goredema USD230,769-23
in Zimbabwe. The Range Rover is registered as the appellant's
personal property in South Africa. The registration of the Ford
Ranger is yet to be ascertained.
The
appellant therefore allegedly externalised USD230,769-23.
Count
Five
Sometime
in February and March 2019 the appellant allegedly bought furniture
in South Africa with the help of one Judith Gamuchirai Goredema who
sourced and paid ZAR480,000 in South Africa on her behalf. In return
the appellant gave Judith Gamuchirai Goredema USD36,923-08. The
property was delivered at the appellant's newly acquired
residential property at Waterkloof Golf Course (See Count Three).
The
appellant allegedly externalised USD36,923-00.
Count
Six
In
May 2019, the appellant allegedly instructed Memory Chakuinga to
raise a false invoice for the supply of prepaid meters. The appellant
allegedly used the invoice to effect transfer of USD142,858,93 to
Bonnette Electrical (Pty) Ltd in South Africa through the CBZ bank.
When the money was received in South Africa, the appellant allegedly
diverted the funds to Attorneys in South Africa for the purchase of a
certain immovable property at 149 Valderana Close, Pretoria, South
Africa. The appellant allegedly externalised USD142 858,93.
Money
Laundering
The
appellant is also facing five counts of money laundering in
contravention of section 8(2) of the Money Laundering & Proceeds
of Crime Act [Chapter 9:24].
The
simple allegation is that in every case where she managed to obtain
transfer of funds to South Africa by uttering fake invoices to the
CBZ bank in Zimbabwe and diverted the money upon receipt in South
Africa she laundered the funds in that she concealed, disguised the
true nature, source or disposition of property knowing or suspecting
such property to be proceeds of crime.
The
appellant therefore laundered the funds mentioned in Counts 2 to 6 of
the externalisation offences described in detail above.
Fraud
The
appellant is also facing the charge of fraud in that she fraudulently
tried to procure registration or upgrade of her marriage to Vice
President, Constantino Guvheya Dominic Nyikadzino Chiwenga from an
unregistered union to a marriage under the Marriage Act [Chapter
5:11] by misrepresenting to the marriage officer that her husband had
consented to the registration, well knowing the same to be false.
Through
the alleged misrepresentation, she induced the Acting Chief
Magistrate to prepare marriage licences and complete the marriage
register in preparation to solemnise the marriage at a private
ceremony at the parties' residence. The appellant was already
living with the Vice President as husband and wife in an unregistered
customary union and children were born to the marriage. The ceremony
did not take place because the Acting Chief Magistrate did not find
anyone at the parties' residence when he went there to solemnise
the marriage.
The
State alleged that the appellant's alleged misrepresentation caused
prejudice to good administration and reputation of the Vice
President. The good administration referred to was neither explained
in the charges nor by the State counsel who appeared before me to
argue the bail appeal.
Proceedings
in the Lower Court
The
court a quo considered the appellant's suitability for bail pending
trial on the various charges in one hearing.
At
the hearing which commenced on the 16th December 2019, the State
began by stating the grounds for opposing bail. State counsel, Messrs
M Reza, J Murombedzi and T Makiya (Messrs M. Reza, as lead State
counsel) relied on section 117(2)(a) of the Criminal Procedure and
Evidence Act [Chapter 9:07], which reads as follows:
“Refusal
to grant bail and detention of an accused in custody shall be in the
interest of justice where one or more of the following grounds are
established.”
The
State then listed the various grounds.
State
counsel submitted that there was a likelihood that the appellant, if
released on bail, will;
(a)
endanger public safety or the safety of any person or commit an
offence in first schedule; or (b) not stand her trial or appear to
receive his/her sentence(s);
(c) attempt to influence or intimidate witnesses or
conceal or destroy evidence; (d) undermine
or jeopardise the objectives or proper functioning of the criminal
justice system including bail system.
The
State made the following detailed submissions:-
If
released on bail, the appellant was likely;
(i)
to endanger the safety of the public or commit an offence referred to
in 1st schedule in that she had attempted to kill the Vice President
and she might still want to kill him.
(ii)
not to attend trial or attend to receive her sentence.
(iii)
to interfere with witnesses since she allegedly committed the money
laundering and funds externalisation crimes with the help of her
friends or people known to her. She could talk to them to undermine
the course of justice. According to the State, there was a real
possibility that the appellant would interfere with investigations
outside Zimbabwe by interfering with key witnesses who are her
friends and destroying evidence held by her companies.
In
the court a quo, the State relied on S v Ndlovu 2001 (2) ZLR @ 261,
which states that:
“In
deciding whether there is a risk of accused absconding, the court
should consider such failure as the seriousness of the offence, the
likely sentence the incentive to abscond, the accused's mobility
and access to cross border travel and strength of the prosecution
case.”
The
State made the following further submissions in the court a quo.
The
crimes of money laundering and externalisation of funds are serious.
The appellant allegedly externalised USD1,033,943,10 and laundered
USD919,943-10 none of which had been recovered. The appellant faced a
jail term and that was an incentive to her to abscond. She was not
likely to reconcile with living in a prison cell, being used to an
“opulent house as Vice President's wife.” The appellant could
skip the border at any point along the length of the Limpopo River
which is on the border of South Africa and Zimbabwe.
The
prosecutor probably focused on Limpopo or South Africa and no other
neighbouring country presumably (he did not say) because the State
allegation is that the appellant bought residential properties in
South Africa.
The
State submitted further, that it had very strong evidence against the
appellant. State counsel relied on the case of Aitken & Anor v AG
1992 (1) ZLR @ 249 were the Supreme Court upheld a decision of the
High Court when, in the exercise of its discretion, it denied bail to
Aitkem and another because: “even if the appellants were admitted
to bail, on the most stringent conditions, there was real risk that
they would abscond.”
The
State also relied on S v Fourie 1973 (1) SALR @ 100 where the court
observed that;
“It
is fundamental requirement of the proper administration of justice
that an accused person stands trial and if there is a cognisable
indication that he (or she) 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, despite
the presumption of innocence.”
Additionally,
the State submitted that the appellant was supposed to be remanded in
custody because investigations were in their infancy. The State was
investigating several other matters which would result in more
charges being preferred against the appellant.
The
State also alleged that the appellant was likely to undermine or
jeopardise the objectives or proper functions of the criminal justice
system – including the bail system. According to the State, there
is a very unfortunate narrative doing the rounds that people are
being arrested in order to be released. The prosecutor, Mr Reza, put
it as follows in the court a quo:-
“We
are looking at a situation where (suspects) are arrested, granted
bail, they never come back to court either because they have been
given back their passports or not. The bail system is becoming a
laughing stock. It is not a secret that there are other accused
persons similarly placed to the accused person. The moment they are
granted bail they wave their hands to Zimbabwe.... there is need to
put a stop to that. Accused persons, if they are not suitable
candidates for bail must remain in custody for the proper
administrative of justice in this country.”
The
State called the investigating officer, Victor Masimba, to testify.
He
opposed bail. He gave evidence to buttress what State counsel had
submitted from the bar concerning the seriousness of the offence,
extra territorial investigations and the risk of abscondment.
Mr
Masimba was subjected to lengthy cross examination by the defence
team of Mr Nyamakura and Mr Mbaisa (then led by Mr Nyamakura). The
cross examination revealed that V Masimba had a combined experience
in the Zimbabwe Republic Police and Zimbabwe Anti-Corruption
Commission of 24 years. He was steadfast that appellant was likely to
abscond to South Africa where she has properties. The investigating
officer however made the following concessions:
(a)
that Zimbabwe has an extradition treaty with South Africa. He however
argued that the appellant would still abscond despite the extradition
treaty.
(b)
the immovable properties allegedly purchased with the laundered funds
had been identified in South Africa.
(c)
that appellant travels on a diplomatic passport and as wife of Vice
President she was known to the general populace and could be easily
noticed at points of exit.
(d)
the purpose of the Money Laundering Act is to dislodge gains from
proceeds of crime.
(e)
that all funds telegraphically transferred to South Africa through
the CBZ bank came from company accounts and not appellant's
personal accounts.
The
investigating officer, however, insisted that the appellant could
still be criminally charged in her personal capacity for acts she did
on behalf of a company.
(f)
that, ordinarily, a company should be charged for its acts or
omissions constituting offences albeit through human agents.
(h)
that there was no evidence that the funds allegedly laundered were
proceeds of crime. He did not quite concede that the money was clean.
The
investigating officer was taken to task about his allegation that the
appellant could interfere with witnesses. The impression given was
that his fear was far-fetched in view of the stature/standing of the
State witnesses who included high ranking officials and trained
security agents. It was also put to the investigating officer that
fears of interference, if found to exist, could be dealt with under
conditions of bail.
He
was also attacked for arresting and unnecessarily bringing the
appellant before the court before concluding investigations. He
replied that he has few extra territorial investigations to do and
then “wrap up the case”. Defence counsel put it to him that his
fears could also be catered for by appropriate conditions.
It
is worth observing that if the date for completing investigations
stated by the investigating officer on the Request for Remand Form,
as the 27th December 2019, is anything to go by, then the docket was
complete on the 30th December when this appeal was argued.
The
investigating officer confirmed that the appellant has wounds on her
arms which she sustained during an assassination attempt and that the
prison doctor recommended that she ought not to be incarcerated due
to her poor state of health.
The
investigation officer conceded that the appellant holds no other
citizenship.
In
winding up its submissions, the State also relied on S v Bongani Moyo
HB 95/01 which is authority for the position that even where
statements have been recorded from witnesses that cannot stop an
accused from interfering with witnesses if they are his relatives or
friends.
The
State relied on William Sabanda v The State HB 88/02 wherein the
court rejected the submission that the fact that the accused has no
passport or a travel document is in itself a guarantee that he/she
will attend trial. People have skipped border without travel
documents to evade trial.
Let
me comment that my observation is that the State misunderstood these
cases. There are cases where the court may infer from the accused's
past conduct, propensity, the nature of crime or any other indicator
that confiscating a passport would not be a sufficient deterrent.
This court will take judicial notice of the fact that the clamour for
passports and travel documents and the long queues at the passport
office are an indication that it is not easy to enter another country
and let alone stay in that other country without having entered the
foreign land lawfully.
The
appellant's counsel also submitted in the court a quo that all case
law predating the year 2013 should be relied upon with the
realisation that section 50(1)d of the Constitution of Zimbabwe has
now entrenched the right to bail. For that submission, he cited S v
Khumalo HB 243/15, which acknowledge that:
“An
accused person cannot be denied the fundamental right to bail without
satisfying the requirements set out in the Constitution.”
He
also cited Dumisani Moyo v The State HMA 20/18, which asserted that:
“Our
Constitutional dispensation stresses the presumption of innocence of
an accused until proven guilty by a trial process. The right to bail
in the absence of compelling reasons to deny it has been entrenched
as one of fundamental human rights and freedom.”
The
defence counsel posed the following rhetoric questions in the context
of compelling reasons why bail should not be granted;
“Very
closely linked to them (compelling reasons) is the question … why
should the State therefore benefit from making a decision to arrest
before concluding investigations?”
It
is a fundamental rule of our law that a person cannot benefit from
his own wrongdoing.
Appellant's
counsel submitted further that there was no basis upon which the
appellant's children should be deprived of their mother's care
during investigations and trial.
In
addition, defence counsel submitted that bail remains a right, even
to Zimbabweans who can travel to other countries. For this
proposition he relied on Michael Mahachi v State HH 99/19.
Ruling
by the Court a Quo
The
ruling by the court a quo on the 16th December 2019 is contained in 4
pages. I take the view that the ruling could have been longer if the
court a quo had fully considered all submissions on the facts and the
law presented by the opposing sides as I will demonstrate
hereinafter.
In
its ruling, the court a quo observed that the bail application came
up... “at a time when the nation is in the middle of a concerted
anti-corruption drive where there has been a buy in from (all
sectors) of the nation. There has also been, understandably, a dose
of scepticism.….. the court must at all times be alive to national
policies than are relevant to the administration of justice and
dealing with certain crimes and a court dealing with anti corruption
matters must give voice to such and a court is not only able to
support the drive by renovating courtrooms and putting televisions in
the court room but by making appropriate rulings in appropriate
cases, so that the scepticism…. can be stemmed.”
At
the appeal hearing the State conceded that the statement by the court
a quo quoted immediately above amounted to a misdirection.
However,
the State argued that it was not the basis upon which bail was
denied, so miscarriage of justice resulted.
I
reject that argument.
The
finding was an acceptance by the court of the State's submission
summarised earlier in this judgment. The State submitted there was a
perception of catch and release. The State suggested that the
perception arose from the fact that persons facing corruption charges
who were admitted to bail absconded trial after their passports were
returned to them and in some cases without passports. The submission
by the State in the court a quo, which was accepted and adopted by
that court, constituted the kind of megaphone posturing or
grandstanding not only misplaced and unfortunate, but which must be
avoided by an officer of the court.
It
is not fair for a court official to mislead the public by blaming the
bail system for the inertia in the fight against corruption. A
stakeholder in the fight against corruption should self-introspect
and resist the temptation to locate reason for the inertia in
combating the scourge elsewhere except oneself.
The
State is the dominant litigant in the prosecution of cases at public
instance. It is in charge of investigation and timeous prosecution of
crime. There is no point in commencing a prosecution without the
necessary seriousness to start the trial. Trials have been delayed by
postponements to complete investigations or failure to prefer correct
charges or add alternative charges or failure to serve the person
accused with relevant State papers or attending to interlocutory
matters that could be anticipated by the State.
The
fight against corruption cannot be achieved through detention without
trial or pre-trial incarceration.
Any
person who is accused of an offence in Zimbabwe is presumed innocent
until proved guilty.3
The
presumption of innocence started as a common law principle and is now
enshrined in the Constitution. Accordingly, it is inappropriate for
the State to argue for pretrial incarceration as a matter of policy
to deal with the problem of corruption. Such a policy would be
invalid due to inconsistence with the Constitution.
The
court a quo erred when it accepted the argument.
The
prosecution is encouraged to change tact. I urge the State to avoid
arresting before investigating a matter in so far as that is possible
without the risk that the suspect may interfere with such
investigation. The advantage is that when an arrest is eventually
made, all evidence would have been secured and recoveries made in
terms of the law relating to confiscation of proceeds of crime.
The
perception of catch and release arises from non-prosecution of cases
or lack of thorough preparedness or underwhelming presentation of the
State case. It does not arise from release of accused persons on bail
generally.
The
generality of the citizenry know that accused persons are entitled to
bail unless there are factors militating against admission to bail.
The
situation where the courts are clogged with applications for
variations of bail including the so-called 'temporary variation of
bail conditions' (including temporary release of passports) arises
only if commencement of trial is delayed. Day in, day out, the courts
are inundated with applications for variations and appeals leaving no
time for the real issues in the fight against corruption. Such issues
would never arise if trials are started at once.
In
this case, the Zimbabwe Anti-Corruption Commission investigated the
matter before arresting and presented all facts to the prosecution.
Investigations were complete in record time on the 27th December
2019. The allegations may be serious but they are not complex. The
trial could have already commenced through what is commonly described
as the fast track system.
I
will take judicial notice of the existence of that system whereby the
accused person can appear at court for the first time on a full
docket (as opposed to a request for remand) and the State is ready to
start the trial. It is therefore baffling that at the appeal hearing,
the State counsel had no clue when the trial would commence.
The
State submitted that it intends to amend the charge to incorporate
the provisions of section 177 of the Criminal Law (Codification and
Reform) Act [Chapter 9:23] so that it is clear why the appellant is
being charged in her personal capacity for the acts and omissions of
a company.
There
is no reason why that could not be done before the charges were put
to the appellant.
I
therefore find that the court a quo misdirected itself when it failed
to place weight on the submission that the interests of justice in
this matter (Government fight against corruption) justified pre-trial
incarceration.
I
note, however the overstatement by appellant's counsel in the court
a quo that insinuated that the State or ZACC arrested in order to
investigate. It is clear that thorough investigations were made in
Zimbabwe and extra territorially before arresting, going by the
detailed circumstances. Whether they will be proved or not is a
different matter. However, in deciding whether to commence
prosecution or remand proceedings the prosecution must always be
alive to constitutional provisions that govern the presumption of
innocence and right to pre-trial liberty.
The
court a quo also made the following finding;
“An
arrested person in the shoes of the accused person is clearly able to
flee the jurisdiction when there is compelling fear of imprisonment
upon conviction. The only question is, is there compelling fear of
imprisonment upon conviction or in fact is the State case presenting
the possibility that the accused person could be convicted.”
The
court a quo concluded that the State had overwhelming evidence and
the chances of conviction after a proper prosecution were high. It
also found that there was a real chance that the appellant would be
convicted of the fraud charge and that could also frighten her. The
court observed many prominent people have taken flight to avoid
trial.
I
find that the court a quo fell into error again. It completely failed
to consider the guidelines given by this court in the case of S v
Ndlovu 2001 (2) ZLR 261 cited by the State during the bail hearing.
Indeed,
the moral blameworthiness of the appellant would be very high if she
externalised scarce foreign currency in a staggering amount of
UDS2,000,000 in order to buy luxury cars and houses in South Africa
where she is not living, depriving the essential services sector.
However, that is not what induces flight. What induces flight are the
sentencing provisions.
At
the hearing it became clear that in all probability the worst that
will happen if the appellant is convicted of money laundering are
non-custodial sentences.
I
will reproduce the sentencing provision verbatim;
“8
Money laundering offences
(1)
Any person who converts or transfers property —
(a)
that he or she has acquired through unlawful activity or knowing,
believing or suspecting that it is the proceeds of crime; and
[Paragraph substituted by Act No. 4 of 2014]
(b)
for the purpose of concealing or disguising the illicit origin of
such property, or of assisting any person who is involved in the
commission of a serious offence to evade the legal consequences of
his or her acts or omission; commits an offence.
(2)
Any person who conceals or disguises the true nature, source,
location, disposition, movement or ownership of or rights with
respect to property, knowing or suspecting that such property is the
proceeds of crime, commits an offence.
(3)
Any person who acquires, uses or possesses property knowing or
suspecting at the time of receipt that such property is the proceeds
of crime, commits an offence.
(4)…...
(5)
Knowledge, suspicion, intent or purpose required as elements of an
offence referred to in subsections (1), (2), (3) and (4) may be
inferred from objective factual circumstances.
(6)….
(7)….
(8)
The offences referred to in subsections (1), (2), (3) and (4) shall
be punishable —
(a)
by a fine not exceeding five hundred thousand dollars (US$500,000) or
not exceeding twice the value of the property involved or the gain
derived by the offender, whichever is greater; or [Paragraph
substituted by Act No. 4 of 2014]
(b)
by imprisonment for a period not exceeding twenty-five years; or
(c)
both such fine and such imprisonment.”
What
is clear is that money laundering is, in essence, a fiscal offence
which is punished, as a first option, by a fine which is beyond the
usual levels or double the illicit gain/ advantage.
The
sentencing provisions are peculiar to fiscal offences.
Similar
provisions are to be found in the Customs and Excise Act [Chapter
23:03], itself, another fiscal offence.
The
intention is to dislodge the illicit gain and as much as possible
compensate the fiscus.
The
preamble to the Money Laundering and Proceeds of Crime Act describes
same, among other things, as “the Act to suppress the abuse of the
financial system and enable the unlawful proceed of all serious
crimes... to be identified, traced, frozen, seized and eventually
confiscated...”
The
court a quo, therefore, erred when it concluded that the appellant
was a flight risk because she will be imprisoned if convicted.
The
misdirection arises from its failure to consider the sentencing
provisions.
The
misdirection is even more glaring with regards to the externalization
offences. There sentencing provisions provide for a fine and a prison
term wholly suspended on condition of repatriation of the funds.
In
other words, the Legislature, in its infinite wisdom, contemplated a
situation whereby a person retains his/her freedom even after being
convicted for externalising funds unlawfully. I quote the sentencing
provisions hereunder:
“(4a)
Where the offence of which a person is convicted in terms of
subsection (l)(a) or (b) involves the exportation, externalisation or
expatriation from Zimbabwe of any foreign currency, gold or precious
stone that originated from Zimbabwe or is the proceeds of any trade,
business or other gainful occupation or activity carried on by him or
her in Zimbabwe, the court shall —
(a)
impose —
A.
a fine not exceeding than the value of the currency, gold or precious
stone concerned; and
B.
a sentence of imprisonment not exceeding ten years, the whole of
which shall be suspended on condition that the currency, gold or
precious stone concerned is repatriated to Zimbabwe within a period
specified by the court; and
(b)
in addition to the penalty specified in paragraph (a), impose a fine
of three times the value of the currency, gold or precious stone
concerned, unless the convicted person satisfies the court that there
are special reasons in the particular case, which shall be recorded
by the court, why a lesser fine should be imposed.”
Arguments
on appeal
I
am indebted to the helpful submissions made by both State and defence
counsel.
Adv
Hashiti argued there is a sound basis for this court to interfere
with the exercise of discretion by the lower court. Barros and Anor v
Chimphonda 1999 (1) ZLR 58 at 62-63:
“It
is not enough that the appellate court considers that if it had been
in the position of the primary court; it would have taken a different
course. It must appear that some error has been made in exercising
discretion. If the primary court acts on a wrong principle, or if it
allows extraneous or irrelevant matters to guide or affect it, if it
mistakes the facts, if it does not take into account relevant ….
consideration, then its determination should be reviewed and the
appellate court may exercise its own discretion in substitution,
provided always has the materials for so doing. In short this is not
imbued with the same broad discretion as was enjoyed by the trial
court.”
Advocate
Hashiti also cited RBZ v Granger and Anor SC34/01, where the apex
court observed:
“Where
a court makes a decision which is unreasonable that constitutes a
misdirection in the exercise of judicial function.”
Advocate
Hashiti submitted in that the court a quo did not demonstrably take
into account the presumption of innocence protected by section
70(1)(a) of the Constitution. Section 50(1)(d) enjoins the court
before which an accused person appears charged with an offence to
release the person charged unconditionally or on reasonable
conditions, pending a charge or trial, unless there are compelling
reasons justifying their continued detention.
He
said the court a quo did not apply its mind to those constitutional
provisions as read with section 117 of the Criminal Procedure and
Evidence Act [Chapter 9:07] which lists the factors that constitute
compelling circumstances.
I
do not quite agree.
The
court does not always have to cite the relevant sections of the
Constitution or statute in extenso.
In
this case the Court a quo picked on the risk of abscondment which is
to be found in section 117(2) of the Criminal Procedure and Evidence
Act. It is clear that the Court was conscious of the presumption of
innocence and the duty to admit the appellant to bail in terms of
section 50(1)(d) of the Constitution because it adopted the procedure
whereby the State counsel began by stating the compelling reasons
militating against granting of bail.
I
however accept Advocate Hashiti's submission that the Court a quo
took into account irrelevant considerations and at the same time,
failed to take into account relevant factors.
It
failed to take into account that the acts and omissions constituting
the money laundering offences were attributable to a registered
company. The transactions involved movement of money between
companies. Section 358 of the Criminal Procedure and Evidence Act is
unambiguous in that a company may not be incarcerated.
He
submitted that there is, therefore, no justification for the
appellant's detention.
I
also accept Advocate Hashiti's submission that the court failed to
take into account that the investigating officer conceded that the
actius reus was constituted by acts and omissions of a company duly
registered.
The
court a quo did not consider that appellant was a well-known figure
who could be noticed easily at any exit point.
The
court a quo failed to consider the submission that the fears of
abscondment and interference with witnesses could be catered for by
stringent conditions.
It
did not take into account that the appellant had a nagging condition
of a swelling hand and severe injuries on both arms (always bandaged)
and the condition has persisted for a long time despite attempts to
treat it. The prison doctor had recommended that prison conditions
were likely to worsen her condition. In all probability the arms
needed constant medication and review by specialist doctors.
The
court a quo did not take into account that the appellant is a mother
of four minor children who need her care and supervision.
On
the fraud charge, both counsel were not helpful.
The
appellant was content with bare denials of all charges including the
allegation that she fraudulently sought to upgrade her marriage to
the Vice President upgraded from a customary law union to a [Chapter
5:11] marriage in the absence of the other party.
A
marriage is a contract and the parties must declare their intention
and eligibility to marry before the marriage officer under oath, in
the presence of each other.
The
State alleges that the licence and marriage certificate were
completed without the knowledge and involvement of the appellant's
husband.
I
do not have adequate facts to assess the veracity of that allegation
and decrypt appellant's possible motive.
Whether
or not there is a flight risk depends on the likely sentence which,
in turn, would be informed by her prima facie motivation for
allegedly seeking to register the marriage at all costs, at that
point in time.
While
not disputing that the facts alleged against her gave rise to a
reasonable suspicion that she committed the act of fraud, the
appellant did not attempt an innocent explanation for her alleged
conduct. At the same time, the State did not argue before me why the
alleged fraud would attract a prison term. Ordinarily, the desire to
upgrade a marriage which is extant from customary union to a Chapter
5:11 marriage per se, even if shown to be overzealous, would not be
abhorrent unless an ulterior motive is demonstrated.
It
is not necessary for the court to speculate.
Ms
Fero argued correctly that this court must consider the
misdirection(s) alleged and the appropriate remedy should this court
find (a) misdirection(s) by the court a quo. She relied on S v
Chikumbirike 1986 (2) ZLR 145;
“The
appeal court will only interfere with the lower court's decision if
it committed an irregularity or misdirection or exercise of
discretion was so unreasonable as to vitiate the decision.”
See
also S v Malundya 2003 (1) ZLR 275 (H); “The appeal court must not
hear an appeal as if it is the court of first instance. The approach
is whether the Court a quo misdirected himself or herself. It is the
findings of the court a quo which must be attacked.”
and
S v Ruturi 2003 (1) ZLR 537.
To
certain extent I agree with Ms Fero.
The
misdirection must be located in the judgment of the court a quo but
the appeal court is not confined to what the court stated in its
ruling. An omission to take into account relevant factors could also
constitute a misdirection.
Ms
Fero conceded that the court a quo did pronounce itself on certain
things. However, in her submission, the court a quo had refused bail
on two grounds, namely -
1.
Policy considerations relating to corruption.
2.
That appellant was a flight risk.
Ms
Fero complained that the grounds of appeal were not specific.
Ms
Fero submitted, correctly, that an accused person applying for bail
must disclose what his/her defence on the merits shall be in a
nutshell. Such defence may be helpful and, at times decisive, when
the court deliberates on whether or not to exercise discretion in
favour of the accused applying for bail.
She
submitted that the State did not have to prove that the appellant had
committed an offence or that anyone ought to be convicted of an
offence for the appellant to be guilty of laundering proceeds of
crime in contravention of the Money Laundering Act. She quoted S v
Mlambo 1995 (1) ZLR 50-52.
I
agree.
She
finds support in the Act.
“8
Money laundering offences
(1)…….
(b)……
(2)……
(3)……
(4)……
(5)…...
(6)
In order to prove that property is the proceeds of crime, it is not
necessary for there to be a conviction for the offence that has
generated the proceeds, or for there to be a showing of a specific
offence rather than some kind of criminal activity, or that a
particular person committed the offence.”
Ms
Fero further argued that the crimes with which the appellant is
charged are serious.
I
find that she fell into error because she based her submission on
moral blameworthiness only. While she conceded that the court a quo
did not consider the sentencing provisions, she had also not done so.
She
submitted that the State was going to amend the charge and the
outline of the State case to bring the appellant within the ambit of
section 177 of the Criminal Law Codification and Reform Act [Chapter
9:23] to include the necessary averments which justified making the
appellant, as director of a company, personally criminally liable for
acts or omissions of the company.
She
could not explain why that had not already been done.
Ms
Fero said it was up to the Sate to decide whether to proceed against
the company or the individual or both.
She
was unable to give an indication of when the accused person's trial
would commence.
Disposition
The
court a quo misdirected itself on the two grounds upon which it
refused bail.
Firstly,
policy considerations do not override the Constitution. If anything
policy must be informed by the supreme law. The court a quo erred in
considering irrelevant issues and failing to take into account
relevant considerations.
Secondly,
the appellant does not risk imprisonment if convicted.
This
judgment would not do justice if it ends without commenting on a
submission by the State at the initial bail hearing and completely
overlooked by the court a quo.
It
will be recalled that the State argued that the appellant had set out
to kill her husband and she had unfinished business in that regard.
The court a quo did not place any weight on that submission. The
oversight was not fatal. The attempted murder is alleged to have been
committed at a time when appellant's husband was admitted in
hospital and dependant on life support system. That situation was no
longer obtaining at the time of the bail application. The averment in
the bail statement that the parties had interacted subsequent to the
alleged attempted murder was not controverted by the State. See
Fawcett Security Operations (Pvt) Ltd v Director of Customs &
Excise and Ors 1993 (2) ZLR 121 (S) at 127 F.
The
court a quo ought therefore to have granted the appellant bail
pending trial.
Bail
conditions
In
terms of subsection 5 of section 121 of the Criminal Procedure and
Evidence Act [Chapter 9:07], the judge who hears an appeal against a
bail ruling may make such order relating to bail and any conditions
in connection therewith as he considers should have been made by the
… magistrate whose decision is the subject of the appeal.
I
invited Ms Fero to make submissions on the adequacy of the bail
conditions suggested by the appellant, in the event I found a legal
basis to set aside the court a quo's decision and grant bail.
She
abstained.
It
soon became clear that her fear was that she could be misconstrued to
be conceding to bail. Her stance is regrettable. Any submissions she
was going to make were at the instance of the court. If indeed
judicial officers have interpreted submitting in the alternative as
implied concessions, I am of a different opinion. It is not advisable
for a party to proceedings to put all eggs in one basket. Counsel can
always make it clear that no concession is intended but still
acknowledge that that court may exercise its discretion in favour of
a bail applicant and against the State and that if the appellant
succeeds, the court should be properly guided on the conditions of
bail.
At
the same time the appellant had not considered offering more
realistic bail conditions in the event that the court found a
misdirection, because the court then then would be at large to
consider appropriate bail conditions. Appellant would be expected to
offer conditions which demonstrate to the court her desire to attend
trial in the face of an offence with serious fiscal/financial
implications.
Appellant's
counsel is commended for conceding that oversight and acting quickly
during the court sitting to secure reasonable surety on behalf of the
appellant which was placed before the court without objection.
Of
course, the State could not possibly object to an offer. An offer is
either accepted or rejected by the court.
In
the result I order as follows:-
1.
The appeal against the decision of the Harare Regional Court for the
Eastern Region sitting at Harare denying the appellant bail pending
trial in case number ACC96/19 is upheld and the decision of the court
a quo is hereby set aside.
2.
The decision of the court a quo is substituted with the following:-
(a)
The accused be and is hereby admitted to bail pending trial.
(b)
The accused shall deposit the sum of RTGS50,000.00 with the clerk of
court at Harare Magistrates Court.
(c)
The accused shall reside at 614 Nick Price Drive, Borrowdale Brooke,
Harare.
(d)
The clerk of court shall accept as surety, the property known as Lot
1 of Lot 343 A Highlands Estate measuring 3642 square meters held by
K M Auctions (Pvt) Ltd under Deed of Transfer 2244/2006 accompanied
by the necessary resolution of the directors (and shareholders) of K
M Auctions (Pvt) Ltd, Keni Mubaiwa and Helga Junior Mubaiwa.
(e)
The accused shall surrender her diplomatic passport to the clerk of
court at Harare Magistrates Court.
(f)
The accused shall report to the Police at Borrowdale Police Station
once a fortnight on Friday between 6am and 6pm.
(g)
The accused shall not interfere with State witnesses.
Mtetwa
and Nyambirai, appellant's legal practitioners
National
Prosecuting Authority, respondent's legal practitioners
1.
See Rule 8
2.
See Rule 6(2) of the High Court Bails Rules
3.
See section 70(1) of the Constitution
