MATHONSI J: The applicant and his co-accused Mcniel Mbombi
are facing a charge of robbery in breach of section 126 of the Criminal Law
(Codification and Reform) Act [Chapter 9:23] it being alleged that on 20
December 2010 at around 0230 hours they robbed Total Garage in Entumbane
Bulawayo.
It
is alleged that they attacked the two security guards who were on duty using
logs and iron bars, over powered them and tied their hands and legs using
pieces of wire. Having accounted for the
guards they are said to have broken into the premises and used explosives to
blast open a safe from where they stole US$15000-00 and ZAR 10 000-00 in
cash. They allegedly escaped in a
gateway motor vehicle, a Toyota Hiace minibus registration number AAZ 9823
belonging to the applicant.
The
applicant was only arrested following the arrest of his co-accused, Mcniel
Mbombi on 18 October 2011, some 10 months later. It is said that Mbombi implicated the
applicant which then led to his arrest.
The applicant has now applied for bail pending trial arguing that he is
a family man with two (2) minor children, is of fixed abode and has no previous
or pending cases. For that reason he
submits that he is a good candidate for bail.
The
state strongly opposes the application and has filed an affidavit by Detective
Assistant Inspector Noel Mpofu of CID Homicide in Bulawayo, the investigating
officer. The basis for opposing the
application is that there is a very strong case against the applicant and if he
is admitted to bail he will not be motivated to stand trial but will instead abscond.
According
to the sworn statement of the investigating officer, the applicant made a
statement to the police implicating himself in the commission of the
offence. Explosive devices similar to
those found at the scene were recovered from the applicant after his
arrest. The applicant was picked out by
witnesses in an identification parade held by the police.
In
addition to that, the state alleges that following indications made by the
applicant, a Toyota Hiace roof and tail gate purchased from the proceeds of the
robbery were recovered.
Ms
Munyeriwa, for the respondent
submitted that because of the gravity of the offence and the strength of the
case for the prosecution there was a very high risk of abscondment. She stated that in addition to the explosive
devices recovered from the applicant, he is the one who led the police to the
recovery of the vehicle used during the robbery. This, together with the fact that two
witnesses fingered the applicant in an identification parade, means that a
conviction is almost guaranteed and for that reason the applicant is unlikely
to wait for the trial whose conclusion would be against him.
Mr
Muganyi for the applicant disputed
that explosive devices were recovered from the applicant. He argued that the contents of the affidavit
of the investigating officer are not true.
Unfortunately for him, he could not back up his argument by
evidence. Although Mr Muganyi says the applicant's wife was
present when recoveries were made, he did not file an affidavit by the wife or
the applicant to challenge the allegations made by the investigating
officer. The entire case of the
applicant is premised upon a bail statement which says nothing about those
allegations.
In
the result, the allegations made against the applicant by the investigating
officer remain unopposed and I have no reason to disbelieve him.
I
am of the view that the case against the applicant is very strong and the
applicant faces serious charges. This
application then turns on the risk of abscondment. In S v
Jongwe 2002(2) ZLR 209(S) at 215 B – C the Supreme Court stated as follows
on judging the risk of abscondment;
“---
in judging the risk that an accused person would abscond the court should be
guided by the following factors:
(i) the nature of the
charge and the severity of the punishment likely to be imposed;
(ii) the apparent strength or weaknesses of
the state case;
(iii) the accused's ability
to reach another country and the absence of extradition facilities from the
other countries;
(iv) the accused's previous behaviour;
(v) the credibility of the
accused's own assurance of his intention and motivation to remain and stand
trial.”
See
also Aitken and Another v Attorney
General 1992(1) ZLR 249 at 254 D-G.
I have already stated that the case
against the applicant is very strong and that he faces a serious charge. If found guilty he is likely to be sentenced
to a lengthy term of imprisonment. These
considerations are more than likely to motivate the applicant to abscond.
In
light of the foregoing, I come to the conclusion that the applicant is not a
good candidate for bail. Accordingly
the application is dismissed.
Dube-Banda, Nzarayapenga and partners, applicant's
legal practitioners
Criminal Division, Attorney
General's Office, respondent's legal practitioners
