CHIGUMBA J: This is an appeal
against refusal of bail pending trial, based on the allegation that the trial
court misdirected itself in dismissing the application for bail without
offering the appellants, who were not legally represented, an opportunity to be
heard. The relief that the appellants seek, is the setting aside of the
refusal to admit them to bail, and their admission to bail, on the following
terms:
IT IS ORDERED THAT THE APPELLANTS:
1. Pay
the sum of US$50-00 each to be deposited with the clerk of court, Harare
Magistrates Court.
2.
Reside at their given addresses until the matter is finalized.
3.
Not interfere with witnesses.
4.
Report once a week on Fridays between 6am to 6pm at Chitungwiza police station
until the matter is finalized.
The appellants were charged with robbery, as defined in s 126 of the Criminal
Law (Codification and Reform Act) [Cap 9:23], (hereinafter referred to
as the Code), it being alleged, on the Form 242, request for remand form, that,
on 28 March 2014, at 1800 hours, they teamed up and hatched a plot to steal
from Garikai Nyanga, of house number 2752 Unit 'C' Seke, Chitungwiza. It
was alleged further, that they proceeded to Chitungwiza in a bus registration
number ABB 0965, and that, first, second, and third appellants grabbed the
complainant and dragged him into their bus where fourth and fifth appellants
were waiting. Appellants allegedly produced police identification cards,
identified themselves as police officers and accused the complainant of selling
airtime without a valid licence. It was alleged that the appellants drove
around Chitungwiza while they robbed the complainant of US$320-00 cash and
airtime recharge cards for Econet, Telecel, and NetOne valued at US$150-00.
They then allegedly shoved the complainant out of the bus and drove away.
Complainant recorded the registration number of the bus and reported the
matter to the police the following morning.
On 29 March 2014, the complainant identified the vehicle used, leading to the
arrest of the appellants. Nothing was recovered. The appellants
were allegedly positively identified by the complainant. Detective
Sergeant D. S. Tsodzo is the Investigating Officer in this matter. He
deposed to an affidavit, on the first of April 2014, in which he stated his
reasons for opposing the admission of the appellants to bail pending trial.
He said that the appellants were likely to interfere with witnesses and
or evidence. He said there was a 'high likelihood' that they would
interfere with witnesses since they were public transport operators who resided
in the same area as the witnesses. He stated that the stolen property has
not been recovered, that cases of this nature are on the increase and that the
appellants were likely to commit further offences if admitted to bail.
Lastly, he stated that the chances of conviction were high, which would
likely induce the accused to abscond.
On 1 April 2014, at the initial
remand hearing, the fifth appellant was represented by his counsel Mr. Chagwiza.
On 2 April 2014, at the hearing of the application for bail pending
trial, Mr. Chagwiza submitted that there were no other witnesses other
than the complainant so the state's allegation that the appellants were likely
to interfere with witnesses was baseless and without foundation. He
submitted that there was no real likelihood of interference with the
complainant. On the likelihood that if admitted to bail further offences
would be committed, it was submitted that, that in itself is not a reason to
deny bail, especially in the absence of evidence of propensity to commit
similar offences. It was submitted that the fifth appellant was a mother
of minor children, with ties to the community, who was not likely to abscond if
admitted to bail. It was submitted that she had no external links, no
travel documents, and no means of survival outside Zimbabwe. It was submitted
that she is of fixed abode and that she cooperated with the police
investigation. Finally, it was submitted that she denied taking part in
the commission of the offence, but had been in the vehicle in question for
transportation purposes, since it was a commuter omnibus. She was a
passenger on the commuter omnibus when the other appellants were arrested.
The first appellant told the court that he has three children aged 1, 3, and 7
years old, that he is a sole breadwinner, that this was his first court
appearance, that he is of fixed abode residing at the support unit.
The second appellant told the court that he is a family man with two
children aged 3 and 5 that he has to provide for his family that he can report
at St Mary's police station, that he has no external ties, and that this was
the tenth time he was appearing in court. The third appellant told the court
that he is a family man with two children aged 2 and 2 years, that he is the
sole breadwinner, that he has extended family dependants to take care of, and
that he is of fixed abode. The fourth appellant told the court that he
is a family man with three children, that he can report at St Mary's police
station, that he is the sole breadwinner, that he has no travel documents and
no intention of leaving the country, that this was the first time he has ever
been arraigned before the courts, and that he can report to Chitungwiza police
station.
Counsel for the respondent, in opposing the admission of the
appellants to bail, relied on the case of S vBiti 2002 (1) ZLR
115, as authority for the proposition that, in deciding the question of
admission to bail pending trial, a court must consider the seriousness of the
offence, be guided by the character of the charges, the strength or weakness of
the state case, the likely penalty in the event of a conviction, and weigh
these factors against the assurances by the accused that they will stand trial.
It was submitted that the court should strike a balance between the
interests of the accused to personal liberty, the presumption of innocence, s
50 of the Constitution which stipulates that unless there are compelling
reasons accused is entitled to be released pending trial. It was submitted on
behalf of the respondent that the interests of justice would not be served by
the admission of the appellants to bail because: the offence is serious, the
likely penalty severe, there is overwhelming evidence, the appellants were
positively identified by the complainant, no probable defence was offered except
by the fifth appellant, all five appellants acted in common purpose and there
is a nexus in regard to all five, in the commission of the offence.
Counsel for the respondent referred the court to the case of Attorney
General vPhiri 1987 (2) ZLR 33and relied on it as authority for the
proposition that:
“The
fundamental principle governing the court's approach to the granting of bail is
that of upholding the interests of justice. This requires the court, as
expeditiously as possible, to fulfill its function of safeguarding the liberty
of the individual, while at the same time protecting the administration of
justice and the reasonable requirements of the State. The mere possibility of
the accused committing further crimes, standing alone, would not be sufficient
to outweigh the accuser's right not to be deprived of his freedom.”
The trial court's bail ruling was as
follows:
“All
the 6 accused face a charge of robbery. The allegations being that whilst
acting in concert and common purpose they dragged the complainant into their
bus and forcibly took from him property valued at US470 which was not
recovered. The state alleges that accused 5 and 6 are girlfriends of accused 1
and 4 respectively. Defence counsel for accused 5 told the court that accused 5
and 6 were just passengers in the kombi and that he gathered that accused 1, 2,
3 and 4 had intended to recover their money from the complainant. The fact that
accused 5 is a girlfriend of accused 4 has not been challenged. A look at the
totality of the facts shows that one cannot rule out commission purpose. The
state relies on the complainant who identified the accused and also the bus
which was used in the commission of the offence. The strength of a state case
if coupled with the seriousness of the offence charged are good grounds to deny
an accused bail. In this case the offence is serious and very prevalent
nowadays such that it attracts a severe prison term. The state's case is strong
because the accused were positively identified by the complainant and the totality
of the surrounding circumstances suggest common purpose between all the
accused. The appreciation that a severe sentence is likely given the strength
of the state case is likely to induce flight as such it will not be in the
interests of justice to release the accused on bail. Accordingly the
application for bail in all the 6 accused, are hereby dismissed”.
This court must consider whether the appellants successfully discharged the
onus on them, and adduced sufficient evidence before the court a quo,
that, on a balance of probabilities, they are suitable candidates for admission
to bail pending trial. In terms of s 117 of the Criminal Procedure and
Evidence Act, the court a quo was enjoined to consider various factors,
which include:
“(i)the
ties of the accused to the place of trial; (ii) the existence and location of
assets held by the accused; (iii) the accused's means of travel and his or her
possession of or access to travel documents; (iv) the nature and gravity of the
offence or the nature and gravity of the likely penalty therefor; (v) the
strength of the case for the prosecution and the corresponding incentive of the
accused to flee; (vi) the efficacy of the amount or nature of the bail and
enforceability of any bail conditions; (vii) any other factor which in the
opinion of the court should be taken into account;”.
And
“(i)
whether the accused is familiar with any witness or the evidence; (ii) whether
any witness has made a statement; (iii) whether the investigation is completed;
(iv) the accused's relationship with any witness and the extent to which the
witness may be influenced by the accused; (v) the efficacy of the amount or
nature of the bail and enforceability of any bail conditions; (vi) the ease
with which any evidence can be concealed or destroyed; (vii) any other factor
which in the opinion of the court should be taken into account”.
The court must then weigh the
interests of justice against the right of the accused to his personal freedom,
with particular emphasis on the likely prejudice he would suffer were he to be
detained in custody. In the South African case of S vMbaleki 2013
(1) SACR 165, it was held that:
“….it
must necessarily follow, on an analysis of the evidence as a whole, the
probative value of the statements produced by the appellants and the burden of
'exceptional circumstances' that rested on them, that they had not succeeded in
demonstrating that the lower court was wrong and that the decision to refuse
bail should be set aside. (Para [13] at 169d.)”
In another South African case S v
Diali 2013 (2) SACR 85, the court found that:
“…on
a conspectus of all the evidence, together with the apparent strength of the
state's case, and the possibility of two terms of 15 years' imprisonment, the
magistrate had not erred in coming to the conclusion that it would not be
in the interests of justice to allow the appellants to be released on bail.
Appeal dismissed. (Paras 20–21 at 89D–E)
The respondent is opposed to the admission of the appellants to bail, on the basis
that the court a quo did not misdirect itself as alleged or at all, that
there were no gross irregularities in the court a quo's findings, and
that, consequently, its decision cannot be interfered with. This court's
jurisdiction to determine an appeal in criminal matters, from an inferior court
or tribunal, is found in s 34 of the High Court Act [Cap 7:06]
The principles to be applied in considering whether the decision of an
inferior court should be interfered with, are found in the case of Barros &
Anor vChimpondah 1999 (1) ZLR 58, where the Supreme Court
stated that:
“the
finding by the trial judge that there were no special circumstances for
preferring the second buyer above the first was an exercise of judicial
discretion. The exercise of this discretion may only be interfered with on
limited grounds. It is not enough that the appellate court thinks that it would
have taken a different course from the trial court. It must appear that some
error had been made in exercising the discretion, such as acting on a wrong
principle, allowing extraneous or irrelevant considerations to affect its
decision, making mistakes of facts or not taking into account relevant
considerations.”
It was submitted on behalf of the appellants that the trial court misdirected
itself by not affording first to fourth appellants an opportunity to be heard.
A perusal of the record of proceedings of the court a quo will
show that this is an incorrect allegation. Each appellant clearly made
submissions in support of the application to be admitted to bail pending trial,
and the submissions were recorded at record pp 4-5. There is no merit in
the allegation that the court a quo misdirected itself by not affording
the appellants an opportunity to be heard. Can it be said that the court
aquo made any error in exercising its discretion, such as acting on a
wrong principle, allowing extraneous or irrelevant considerations to affect its
decision, making mistakes of facts or not taking into account relevant
considerations? It was submitted that the court a quo misdirected
itself by considering only the seriousness of the offence and failing to
consider other relevant factors.
A perusal of the bail ruling at record p 8 by the court a quo does not
support these averments made on behalf of the appellants. The court a
quo took into consideration:
- That the allegation that
accused 5 is a girlfriend of accused 4 was not challenged.
- That the totality of the facts
made it impossible to use out commission purpose.
- That the state had a strong
case based on the evidence of the complainant who positively identified
the accused and the vehicle used in the commission of the offence by its
licence plate.
- That the strength of the state
case, when coupled with the seriousness of the offence are good grounds to
deny bail. See S v Hudson 1980 (4) SA 145
- The offence is now prevalent
and there is need to protect society from being preyed upon by
commuter bus operators
- That the severity of the
penalty on conviction was likely to induce flight.
The right of an accused to his
personal liberty pending trial, is enshrined in the Constitution of this
country. So is the right of every citizen in Zimbabwe to be protected by
the state. It is always difficult to consider the admission of an accused
to bail pending trial, when the offence that he is charged with has become
prevalent, and society is in an uproar about this menace. Every day we
are bombarded with news reports of vulnerable members of society who board
commuter omnibuses and diligently pay their fares for their intended
destination. These commuters literally place their lives into the
hands of these drivers and bus conducters (mahwindi). It is like playing
the game of Russian Roulette, one can never tell whether the driver or bus conducter
is a person of good character or of ill repute. One cannot tell if the
driver and bus conducter are merely playacting, putting up a front as
being legitimate providers of transport to members of the public. These
days, if lady fortune fails to favour one on any particular day, and without
any warning, commuters may find themselves being driven to a bushy area where
they may be quickly and efficiently, usually under duress and accompanied by
threats of violence, divested of their wordly goods, money, jewellery, mobile
phones, handbags, shoes, or everything on their person.
The modus operandi is to have some of the gang members posing as female
passengers in order to induce commuters to get onto the Kombi, most
people will feel safe when they see women on board. It's our duty to
balance the competing interests between the rights of victims of criminal
activity and the alleged perpetrators of those offences, bearing in mind that
the balancing act necessitates a consideration of all the surrounding
circumstances, without giving too much weight to one factor as opposed to
another. It is also important to note that the court must consider the
evidence placed before it, and decide the level of probative value that it
should properly accord to such evidence. The question of onus is also
very material, applicants for admission to bail pending appeal must always be
cognizant of the importance of discharging the onus incumbent on them, on a
balance of probabilities, that they are suitable candidates for admission to
bail. Courts must always be willing to allow such petitioners, a real
chance to present evidence in their quest to discharge this onus.
It is my view that the trial court
did not misdirect itself as alleged or at all, so this court has no basis on
which it can substitute its discretion for that of the court aquo.
In the absence of evidence of an error on the part of the court a quo
in refusing to admit the appellants to bail, this appeal cannot succeed.
It has no basis, and no foundation. The court did not find
merit in the alleged misdirections on the part of the court a quo that
it did not give the appellants an opportunity to address it and apply for bail
pending trial, that it only relied on the seriousness of the offence alone in
refusing to admit the appellants to bail pending trial. Accordingly, the
appeal against refusal of bail pending trial is dismissed.
Gumbo &
Associates, Applicant's
Legal Practitioners
Prosecutor General, Respondent
