MATHONSI J: The Applicant and three
others, namely Bongani Sicelo Mbambo, Everton Khupe and Mandlenkosi Gumisayi
are facing a charge of aggravated armed robbery in violation of Section 126 of
the Criminal Law (Codification and Reform) Act [Chapter 9:23]. He was arrested at a house in Avondale Mews
Harare on the 15th May 2010.
Prior to the Applicant's arrest investigators had arrested his colleague
who is now jointly charged with him, Bongani Sicelo Mbambo at a house in
Malbereign, Harare. It is Mbambo who led
the police to where the accused was.
After the Applicant and Mbambo were arrested, they were interrogated by
the police and they directed them to Sloane Lodge in Harare where the other two
co-accused namely Everton Khupe and Mandlenkosi Gumisayi had been booked after
their arrival from South Africa where they were based.
Further instigations by the police established that finger prints
uplifted from the scene of the crime at Welt Hunger Hilfe No. 6 Wallasey
Street, Donnington, Bulawayo, matched those of one of the accused persons
Everton Khupe who had been arrested at Sloane Lodge Harare after being fingered
by the Applicant and Mbambo. In addition
Khupe and Gumisayi were positively identified by the complainants in a formal
identification parade conducted by the police. These two, Khupe and Gumisayi could not have
been known as the police had no leads on them had it not been for the
confessions of the Applicant and Mbambo.
Historically, the circumstances are that on the 27th March
2010 at 10:11 hours, the complainant received a call on his mobile phone from
mobile phone number 0912 861 368. The
caller enquired as to when the complainant was coming to the office as that
caller was waiting for the complainant in the office. The caller was advised that the complainant
would be coming in due course.
When the complainant arrived at the office the caller in question was
not there but at 11:40 hours the offices were raided by robbers who
specifically demanded to be shown 2 safes of the company from where they took
away cash and other valuables. This
suggested that they were aware of the existence of those safes.
The call that was made to the complainant was later traced to
Applicant's mobile phone number 0912 861 368 resulting in the Applicant being a
prime suspect. When the Applicant was
finally traced and arrested in Harare where he had relocated to presumably
after the offence had been committed, he was still in contact with Mbambo,
another Bulawayo based individual who had also relocated to Harare. With the combined assistance of the Applicant
and Mbambo the police were able to arrest Khupe and Gumisayi, the two who are
believed to have carried out the robbery.
Indications made by the Applicant and Mbambo led to the recovery of some
of the items stolen from the scene of the crime, that is, a cordless handset
recovered at a bush in Selbourne Park along Cecil Avenue, Bulawayo. Mbambo led the police to the recovery of a
Mazda 323 vehicle which had been used as a gateaway vehicle.
Ms Ndlovu,
for the State has submitted that investigations have been completed and the
docket submitted to the relevant Attorney General's office for set down
although there has been delays in doing so.
Mr Mazibisa
representing the Applicant has strongly argued that the confession and/or
indications made by the Applicant were obtained through torture. He relied on a medical report dated 21 May
2010 submitted to his firm by Dr. A. M. Dube, the Regional Prison Medical
Officer who examined the Applicant on the 20th May 2010. The doctor observed some injuries on the
Applicant and that he was having difficulties in walking and he concluded that
it was “a case of severe soft tissue injury due to assault.”
Prima facie, therefore the Applicant may have
been assaulted. However this Court is
not presently sitting to determine the admissibility or otherwise of the
evidence that may be led by the State.
The present inquiry is limited to the fundamental principle of upholding
the interests of justice. Taking into
account the factors contained in Section 117 of the Criminal Procedure and
Evidence Act, [Chapter 9:07], the Court must endeavour to strike a balance
between the protection of the liberty of the individual and the administration
of justice.
The administration of justice may be prejudiced if the accused person
does not stand trial, commits other offences while on bail or interferes with
witnesses. The usual barometer to
determine the probability of abscondment is where, owing to the strength of the
evidence standing against him, the accused person is likely to abscond. S v
Malunjwa HB 34/03.
In assessing the risk of abscondment the Court is guided by the
character of the charges and the gravity of the sentence the accused may face
if convicted see S v Jongwe 2002 (2)
ZLR 209(S).
In the present case the evidence against the Applicant is very
strong. He was arrested in Harare almost
two months after the commission of the offence and he appears to had relocated
to evade justice. His two other
accomplices must have relocated to South Africa after the offence where they
have residences there and it was probably fortuitous that they were cornered at
a lodge in Harare.
The offence of armed robbery is very serious and if convicted the
Applicant is likely to be incarcerated for a very long time. Therein lies the risk of absondment. In any event, investigations are complete and
the Applicant should be agitating for his trial date to enable him to prove his
innocence.
For these reasons the application for bail is dismissed.
Messrs
Cheda and Partners, applicant's legal practitioners
Criminal Division, Attorney
General's Office, respondent's legal practitioners
