IN
CHAMBERS
UCHENA
JA: This
is an appeal against the judgment of the High Court dismissing the
appellant's application for variation of bail conditions.
FACTS
The
details of this case can be summarised as follows.
The
appellant was in 2018 injured during a bomb blast in Bulawayo. She
sustained injuries on her arms. She sought medical treatment in South
Africa. Until her arrest on 4 December 2019 she was receiving
treatment from a South African specialist doctor.
On
her arrest she was charged with:
1.
6 Counts of contravening s5(1)(a) of the Exchange Control Act
[Chapter
22.05]
'exporting foreign currency.'
2.
6 Counts of contravening s8(2) of the Money Laundering and Proceeds
of Crime Act [Chapter
9.24]
'concealing, disguising the true nature, source, location,
disposition movement or ownership of or right's with respect to
property, knowing or suspecting that such property is proceeds of
crime.'
3.
1 Count of contravening s136 of the Criminal Law (Codification and
Reform) Act [Chapter
9.23]
(fraud).
She
was subsequently charged with the attempted murder of her husband and
assault for assaulting their maid.
According
to documents attached to form 242s in the applicant's application
for variation, the appellant's charges of 6 (six) counts of
contravening s5(1)(a) of the Exchange Control Act are based on the
following facts:
Count
One:
That
she sent her driver Carrington Kazingizi and Terrence Mutandwa
to China with US$114,000-00 without any declaration being made to the
authorities.
Count
Two:
That
she instructed Memory Chakuinga to issue a proforma invoice for the
supply of event tents and chairs which were sent to CBZ Bank and the
appellant. The appellant then applied to CBZ Bank for the transfer of
US$201,846-81 by telegraphic transfer into Falcon Projects Suppliers
Private Limited's South African FNB bank account no 62576755105.
Thereafter the appellant instructed Memory Chakuinga to divert the
money from the purchase of event tents and chairs to Range Rover
Centre Menyln towards the purchase of her personal vehicle a Range
Rover Autobiography which she registered in South Africa in her name
bearing registration number HW40JNGP.
Count
Three:
That she instructed Memory Chakuinga to raise a proforma invoice for
the supply of household electric meters which she sent to CBZ Bank
and the appellant. The appellant used that proforma invoice to cause
CBZ Bank to transfer US$307,545-05 into Falcon Projects Suppliers
Private Limited's South African FNB Bank account number
62576755105.
Thereafter
the appellant instructed Memory Chakuinga to divert the funds towards
purchasing house number 1309 Kingstone Heath Close, Waterkloof Golf
Estate, Pretoria, South Africa. The house was registered in the name
of LaChelle Travel and Tours Pty Ltd South Africa of which the
appellant is the sole shareholder.
Count Four:
That the appellant requested Judith Gamuchirai Goredema to
source for three million rands for the purchase of the appellant's
two cars a Range Rover and a Ranger. Thereafter the appellant gave
Judith Gamuchirai Goredema US$230,769-23. The Range Rover was
registered in South Africa in the appellant's names bearing
registration number HX61PSGP. The registration details for the Ranger
had not been established at the time the charges were preferred.
Count
Five:
That the appellant externalised US$36,923 08 for the purchase of
furniture for her South African house number 1309 Kingstone Heath
Close, Waterkloof Golf Estate, Pretoria, South Africa.
Count
Six:
That appellant instructed Memory Chakuinga to prepare an invoice for
the supply of prepaid meters. Thereafter the appellant used it to
cause CBZ Bank to transfer US$142,859 3 into Bonnette Electrical Pty
Ltd's South African Standard Bank account number 371164540. Instead
of the money being used to purchase prepaid meters the appellant
instructed Memory Chakuinga to divert it towardas the purchase of her
second house being number 149 Valderana Close, Pretoria, South
Africa.
The
allegations involve the unlawful externalisation of US$1,033,943.1.
The
other 6 (six) counts are for money laundering.
The
charge of fraud is for misrepresenting to the Judge President and the
Acting Chief Magistrate that her husband had consented to the
solemnisation of their marriage when he had not, resulting in
marriage arrangements and documents being prepared and the Acting
Chief Magistrate going to No. 614 Nick Price Drive, Borrowdale
Brooke to solemnise the marriage which did not take place.
The
attempted murder charge is based on what she is alleged to have done
in South Africa when her husband who was critically ill had been
airlifted to South Africa for treatment.
It
is alleged that she instead of taking him to hospital kept him in a
hotel room for more than 24 hours until her husband's security
personnel intervened and took him to hospital. Thereafter the
appellant visited her husband who was in a private ward and on life
saving intra Venous Giving Set as well as Central Venous Catheter in
order to sustain his life. She requested for privacy with her
husband. Her husband's security personnel left the ward after which
the appellant removed the life-saving equipment from the complainant
who started bleeding profusely. She is alleged to have pushed him off
the bed and left the ward. Thereafter her husband's security
personnel, on seeing what had been done to the complainant raised
alarm and hospital staff came and reconnected the life-saving
equipment.
The
assault charge is based on allegations that she assaulted their maid
who she had met at their children's school.
Her
bail applications in the Magistrate's Court were dismissed. She
appealed to the High Court which granted her bail for the initial
charges, on the following conditions:
1.
That she deposits RTGS$50,000-00 with the clerk of court at Harare
Magistrate's Court.
2.
That she reside at 614 Nick Price Drive, Borrowdale Brooke, Harare.
3.
That the Clerk of court shall accept as surety the property known as
Lot 1 of Lot 343A Highlands Estate measuring 3642 square metres held
by KM Auctions Private Limited, under Deed of Transfer 2244/2006
accompanied by the necessary resolution of the directors and
shareholders of KM Auctions Private Limited, Keni Mubaiwa and
Helga Junior Mubaiwa.
4.
That applicant shall surrender her diplomatic passport to the clerk
of court at Harare Magistrate's Court.
5.
That the applicant shall report at Borrowdale Police Station once a
fortnight on Friday between 6am and 6pm.
6.
The applicant shall not interfere with state witnesses.
In
respect of the attempted murder charge the none monetary conditions
imposed in respect of the initial charges were ordered to cover this
charge in addition to her being ordered to pay additional bail in the
sum of RTGS$10,000-00. The condition that she resides at No 614 Nick
Price Drive Borrowdale Brooke was varied to No 64 Follyjon Crescent
Glen Lorne, Harare.
In
respect of the assault charge the following bail conditions were
ordered by the High Court:
1.
That she deposits $1,500-00 with the clerk of court Harare
Magistrate's Court.
2.
She resides at number 64 Follyjon Crescent Glen Lorne Harare until
the matter is finalised.
3.
She reports at Borrowdale Police Station every fortnight on Friday
between 6am and 6pm.
4.
She does not interfere with state witnesses including Delight Munyoro
and Batsirai Furukiya. She does not attend at Hellenic Primary
School except in connection with consultations with school
authorities.
Thereafter
the appellant's initial bail conditions were altered to include the
surrendering of her ordinary passport number CN701555 which had not
been previously disclosed when bail was granted by the High Court, to
the clerk of court at Harare Magistrate's Court.
Subsequently
the appellant applied to the court a
quo
for
the variation of her bail conditions.
She
sought the release to her of her ordinary passport so that she could
travel to South Africa for medical treatment by Dr van Hedeen a
specialist on lymphoedema. She also sought the temporal suspension of
the condition that she reports to Borrowdale police every fortnight
on Fridays. This was to enable her to travel to South Africa where
she was to receive treatment for a period which would result in her
not being able to meet the reporting condition.
In
her application for variation the appellant concentrated on the
condition of her health. She did not explain how the interests of
justice should be balanced with her need for medical treatment if her
application was to be granted.
She
merely said she would not abscond as she could not risk the
forfeiture of her parents' property which was offered as surety
when she was granted bail by the High Court.
On
the other hand the first respondent opposed the application alleging
that the appellant has strong ties with South Africa and that most of
the charges preferred against her involve the externalisation of
foreign currency to South Africa.
The
attempted murder is alleged to have occurred in South Africa.
The
first respondent also opposed the application for variation on the
basis that the evidence led by the appellant left grey areas on the
issue of whether or not there are specialists in Zimbabwe, who can
treat the appellant's condition.
The
court a
quo
accepted that the appellant needed medical treatment by specialists.
It accepted that prior to her arrest she was being attended to by Dr
J van Hedeen a South African specialist. The court a
quo
however did not accept the evidence of Dr J Van
Hedeen
who authoritatively spoke about the appellant's current condition
without disclosing how he got that information as the appellant has
not travelled out of Zimbabwe since her arrest on 4 December 2019.
It also did not accept the evidence of Specialist Neurologist Mr
Makarawo on his statement that there are no specialists on
lymphoedema in Zimbabwe.
It
held that the appellant's application was based on inadequate
evidence.
The
court a
quo
gave its reasons for dismissing the appellant's application on pp
33 to 34 of the record as follows;
“What
I have before me by way of applicant's medical condition is one
sided. It is true that first respondent concedes that she is unwell.
It is true also that she needs treatment. But that cannot be the end
of the matter.
Indeed,
papers from her own doctors contain some grey areas. Mr Makarawo
first attended to her on 6 November 2020. He diagnosed her with
lymphoedema and recommended that she be treated in South Africa
because he believes that there are specialiists there. I have already
rejected his assertion that there are no lymphoedema specialists in
Zimbabwe. I have explained why I have done so.
DR
J van Heeden may have been treating applicant before the later's
arrest on 4 December 2019. But no evidence was presented before me to
prove that he or she has attended to her since then. Applicant
concedes that she has not travelled out of the country since her
arrest. But in October and November 2020 Dr J van Heeden is giving a
fairly detailed narration of applicant's medical condition and the
specialist care required.
Applicant
says she sought medical treatment in Zimbabwe post 4 December 2019.
She says those efforts have not alleviated her condition. Instead her
health has deteriorated. She has produced neither medical reports nor
other medical records to substantiate her assertion that she has
failed to obtain the care that she needs in this country. I only have
Mr Makarawo's letter written on 6 November 2020. So there is that
gap in the evidence.
Applicant
has placed inadequate information before the court to warrant
alteration of her bail conditions.
ORDER
In
the result the application is dismissed.”
It
is for these reasons that the court a
quo
dismissed the appellant's application without considering the issue
of whether or not it was in the interest of justice to vary the
appellant's bail conditions and if so on what conditions.
Aggrieved
by the court a
quo's
decision the appellant appealed to this Court on grounds of appeal
which raise the following issues:
1.
Whether the court a
quo
misdirected its self when it held that the applicant's evidence
left gaps which justified the dismissal of her application for
variation.
2.
Whether on the evidence on record it was established that the
alteration of bail conditions sought by the appellant is in the
interest of justice.
SUBMISSIONS
BY THE PARTIES
In
view of the lockdown due to Covid 19, I did not call the parties to
appear before me to make oral submissions. I however invited their
counsels to file Heads of Arguments as provided by Part III paragraph
(4) of the Chief Justice's Practice Direction No 2 of 2021.
Mrs
Mtetwa for the appellant submitted that the court a
quo
erred when it dismissed the appellant's application on the basis
that the applicant had given the court inadequate information on
whether or not there are lymphoedema specialists in Zimbabwe who
could treat her locally. She submitted that the court a
quo
erred when it relied on the armchair evidence of Dr Magure while
disregarding that of Neurologist Mr Makarawo who had examined the
appellant and formed the opinion that her condition required the
attention of specialists on lymphoedema in South Africa as there are
no specialists on lymphoedema in Zimbabwe.
Mrs Mtetwa
further submitted that the court a
quo
also
erred by dismissing the application without deciding the issue of
whether or not it was in the interest of justice to vary the
appellant's bail conditions.
She
also argued that the first respondent had alleged that the appellant
will abscond if variation is granted as she has roots in South Africa
without leading evidence on that aspect.
She,
in conclusion, urged this Court to allow the appeal and grant the
appellant's application for variation.
Mrs
Fero for the first respondent in response submitted that the court a
quo
had correctly held that the evidence led by the appellant left the
court with inadequate information on whether or not her condition
could not be treated locally. She submitted that the evidence led
from neurologist Mr Makarawo and Dr J van Heeden had gaps which left
the court with inadequate information.
On
the issue of whether or not the state had led evidence on the
likelihood of the appellant absconding because she has ties with
South Africa, she submitted that it is not a rule of thumb that
evidence has to be led in bail applications in rebuttal of what is
placed in issue. The written documents and affidavits sufficed.
She
further argued that she had through her written response and in oral
argument urged the court a
quo
to strike a delicate balance between the two conflicting interests.
She
further submitted that the court a
quo
considered the totality of the evidence and properly dismissed the
application.
THE
LAW
Section
126 of the Criminal Procedure and Evidence Act provides for the
variation of bail conditions. It reads:
“26
Alteration of recognizances or committal of person on bail to prison
(1)
Any judge or magistrate who has granted bail to a person in terms of
this Part may,
if
he is of the opinion that it is necessary or advisable in the
interests of justice that the conditions of a recognizance entered
into by that person should be altered or added
to
or that that person should be committed to prison, order that the
said conditions be altered or added to or commit the person to
prison, as the case may be:” (emphasis added)
It
is clear from the wording of s126(1) that before bail conditions can
be altered the judicial officer must be satisfied that it is
necessary and advisable in the interests of justice for him to do so.
The
key words are “necessary or advisable”.
The
use of the word “or” between the words “necessary” and
“advisable” introduces two factors which must be considered
before bail conditions can be altered.
According
to the Oxford Advanced Learner's Dictionary the word “or” is
used to introduce another possibility. It is also used in negative
sentences when mentioning two or more things.
The
court must therefore ask its self if it has been established that the
alteration is necessary after which it must also consider whether or
not in the circumstances of the case before it, it is advisable to
vary the applicant's bail conditions.
The
necessity to vary the conditions must therefore be balanced against
whether it is advisable in the interests of justice in the
circumstances of that case to vary bail conditions.
If
the facts of the case make it not advisable to vary the conditions a
judicial officer can judiciously exercise his/her discretion and
dismiss the application.
In
considering the interests of justice, the court must take into
consideration the applicant's justification of the need for
variation and the interest of the proper administration of justice
which requires that conditions of bail must be imposed which will
ensure that an accused person will remain available to stand trial.
Whether
the court a
quo,
misdirected itself when it held that the applicant's evidence left
gaps which justified the dismissal of her application for variation
In
her heads of argument the appellant's counsel submitted that the
court a
quo
misdirected itself when it disbelieved Mr Makarawo's evidence that
there are no specialists on lymphoedema in Zimbabwe.
A
reading of the record establishes that the court a
quo
did not disbelieve Mr Makarawo's evidence on the condition of the
appellant and her need for a specialist to treat her condition.
It
is a well-known fact that doctors refer their clients to specialists
if they cannot treat them themselves. It is a notarious fact courts
can take judicial notice of.
The
court a
quo
could therefore only disbelieve Mr Makarawo's evidence on the basis
of evidence to the contrary being led that there are indeed
specialists on lymphoedema in Zimbabwe.
The
court a
quo
said it relied on the evidence of Dr Tsitsi Mildred Magure.
A
reading of her evidence establishes that she did not say there are
specialists on lymphoedema in Zimbabwe. She, in her statement said:
“I
cannot therefore commit myself to whether we have expertise locally
to manage the condition or not without knowing the underlying cause
of the lymphoedema. Determination of which expertise is best placed
to manage the case depends on the cause and grade of the lymphoedema.
Assessment by a multi-disciplinary team might
conclude which expert to lead the management”.
(emphasis added)
The
questions which the Prosecutor General's office had asked were not
answered directly.
The
Prosecutor General's office had asked the Ministry of Health which
forwarded the question to Dr Magure:
1.
Whether medication and the necessary facilities for its cure are
readily available in Zimbabwe; and
2.
Whether there are any lymphoedema specialists in Zimbabwe.
Dr
Magure's response did not address the question whether medication
and the necessary facilities for its cure are readily available in
Zimbabwe. She also refused to commit herself as to whether or not
there are specialists on lymphoedema in Zimbabwe.
Her
suggestion, that a “multi-disciplinary team might conclude which
expert to lead the management” suggests that an experiment has to
be undertaken to establish which expert can lead the management.
This
does not prove that there is readily available medication and the
necessary facilities for the cure of lymphoedema in Zimbabwe.
The
question whether there are specialists on lymphoedema in Zimbabwe
could have been answered by simply saying yes and stating the names
of the specialists.
I
am therefore satisfied that the court a
quo
misdirected its self when it preferred the evidence of Dr Magure to
that of specialist neurologist Mr Makarawo.
The
finding by the court a
quo
that Dr van Hedeen's evidence left a grey area as to when he
examined the appellant cannot be faulted.
It
is the duty of an applicant to lead evidence which can satisfy the
court and enable it to make a finding in its favour.
The
court a
quo
correctly observed that the appellant had not left Zimbabwe since her
arrest on 4 December 2019. The court a
quo
therefore correctly questioned how Dr van Hedeen who lives in South
Africa could have examined the appellant to enable him to give a
detail narration of the appellant's current condition.
The
court a
quo
also correctly held that the appellant had not substantiated her
claim that she had sought treatment locally in Zimbabwe without
success. It observed that no supporting documents were placed before
the court in support of that claim, from doctors who were attending
to her.
A
reading of the record proves that the appellant did not produce such
documents.
I
am however of the view that the omission was cured by Mr Makarawo's
report to the effect that there was gross swelling of appellant's
arms and legs and the first respondent's concession that the
appellant is unwell.
That
on its own is proof that whatever treatment she might have received
after her arrest had failed to cure the lymphoedema.
While
the court a
quo's
observation is correct it is an irrelevant and unnecessary quest for
further evidence in circumstances where the first respondent had made
a concession.
It
is trite that what is not disputed need not be proved.
I
therefore agree with Ms Mtetwa that the appellant had, through the
evidence of Mr Makarawo, proved that her condition required a
specialist's attention in South Africa where she was receiving
treatment before her arrest.
Whether
on the evidence on record it was established that the alteration of
bail conditions sought by the appellant is in the interest of justice
The
interests of justice should consider the appellant's need for
treatment in South Africa against the interests of the proper
administration of justice.
The
appellant merely gave an undertaking that she will come back to stand
trial. The first respondent argued that she will abscond as she has
roots in South Africa.
The
record establishes that it is alleged that 5 of the 6 charges of
contravening s5(1)(a) of the Exchange Control Act involve the
externalisation of foreign currency to South Africa where she is
alleged to have used the money to purchase two houses and three motor
vehicles. She is alleged to be a sole shareholder of a South African
company into whose name the first house was registered. The three
motor vehicles she is alleged to have bought are in South Africa, two
of them having been registered in her name there. The attempted
murder charged occurred in South Africa.
The
proper administration of justice involves consideration of the
possibility that the appellant is likely to abscond and interfere
with witnesses some of whom live in South Africa.
The
question which must be answered is, is it advisable to vary three of
her weighty bail conditions especially without their being
substituted with other conditions which would dissuade the appellant
from absconding.
The
court which granted her bail considered it important that she
surrender her passports to the clerk of court. It also considered it
important that she stay at the stated address and periodically
present herself at Borrowdale Police station to prove that she will
be available to stand trial.
If
these three bail conditions are temporally altered without
substitution they will severely weaken the possibility of her
standing trial.
The
appellant did not offer any security in substitution of the
conditions to be varied.
An
applicant for variation in circumstances where the variation removes
the safeguards intended to ensure that he or she will stand trial,
must offer to provide other forms of security in substitution of
those to be suspended if variation is to be granted.
In
this case the appellant is alleged to have bought two houses in South
Africa. She is alleged to have bought three motor vehicles, two of
which were registered in her name in South Africa. She is alleged to
be the sole shareholder of her South African company. She is alleged
to have furnished one of the houses she bought in South Africa.
The
charges preferred against her are serious. They give details which
make them strong.
Details
of persons, who allegedly helped her to externalise foreign currency
are given. The Bank which transferred the money which was
subsequently diverted is mentioned. The South African Bank and
account numbers into which the money was deposited by the Zimbabwean
Bank are stated. The details of the houses and motor vehicles she is
alleged to have bought with the externalised foreign currency are
given.
The
strength of the charges preferred against her offers a strong
incentive for her to abscond.
These
facts, make it unadvisable to vary her bail conditions, on the mere
promise that she will not abscond.
In
the case of Chombo
v The State
HH753/19, the applicant offered to pay additional monetary bail of
ZWL$50,000-00 when he sought the release of his passport to enable
him to go to South Africa for medical treatment. When the court
indicated hesitation because of the inadequacy of the amount offered
he offered title Deeds of his young brother's house against the
release of the passport. The court was thus satisfied that it was
advisable to order the release of the passport on condition that he,
surrender title Deeds of the house which surety was to be released to
him on his surrendering his passport back to the clerk of court.
The
commitment to offer additional security swayed the court in finding
it advisable to grant the application.
I
am therefore satisfied that in spite, of the court a quo
having misdirected itself on some aspects the appellant failed to
satisfy the court that it is advisable to vary her bail conditions on
her mere assurance that she will not abscond.
The
appeal is dismissed with no order as to costs.
Mtetwa
& Nyambirai,
appellant's legal practitioners
Prosecutor
General's Office,
1st
respondent's
legal practitioners
