Robbery and car-jacking using firearms are viewed as very serious crimes by our courts, and invariably attract long prison sentences – S v Zuze GS 261-81; S v Dumani HB64-82; and S v Chidoipa & Anor HH60-84.

These two groups of cases involve applicants who are applying for bail pending trial.

I have decided to deal with them as one as the allegations are similar in many respects, and the legal question is the same. I find it expedient to do so.

Group One

The allegations against them are that on the 28^th day of April 2009, the three applicants, together with three others, went to the complainant's residence. Upon arrival, they produced pistols and threatened the complainant, as a result of which she parted with R10,000= (ten thousand rands). After this, they forced her into their car and drove her to another location to look for more money.

The applicants are, therefore, charged with armed robbery and kidnapping.

The respondent is opposing bail on the following grounds -

1) That the applicants are facing serious charges;

2) That they may abscond;

3) That they may interfere with police investigations; and

4) That they may interfere with State witnesses.

Group Two

It is alleged that the four applicants, acting in common purpose, teamed up and engaged in armed robberies in and around Bulawayo.

The applicants, it is alleged, were armed with a pistol.

This is the most fearful experience which the complainant must have gone through, and is, therefore, the kind of experience which one would not like members of the public to go through at all.

The State alleges that the applicants hatched a plan to steal a vehicle.

When the plan was discussed, the applicants were in the company of Lameck Mwanza and Lisben Bvoongwe. The latter witnesses alerted the police about the abovementioned plans. The applicants attempted to rob the complainant of the aforesaid vehicle to use it during the planned armed robbery. Lisben Bvoongwe was in the company of the applicants in their vehicle. Their motor vehicle was fitted with fake number plates.

The first applicant has a pending criminal case at the Bulawayo Magistrates Court.

According to the State, the second applicant misled them on his residential address. He is, further, a cross-border driver with a base in South Africa.

The first applicant is a member of the Zimbabwe Republic Police.

In the first Count, the applicant and his four accomplices are alleged to have robbed two police officers manning the Mbare Police Station gate of their service FN rifle at gunpoint.

Both applicants are being charged with two counts of robbery committed in aggravating circumstances as defined in section 126 of the Criminal Law (Codification and Reform Act) [Chapter 9:23].

The request for remand, Form 242, outlines in brief the allegations being made against both applicants which can be summarized as follows. It is alleged that on 8 April 2010, at about 0200 hours, the two applicants, in the company of two other unknown accomplices who are still at large, proceeded to Tengwe Shopping Centre in the Makonde area armed with a firearm. It is alleged that two of them were in army uniform. 

In Count 1:

It is alleged that they approached a shop belonging to Bangura and confronted two little girls, Precious Bangura aged 15 years and Poshia Bangura aged 8 years. The two girls were the shopkeepers selling liquor and other groceries and were about to close the shop when they were confronted by the applicants and the alleged accomplices who demanded cash threatening to shoot the two girls. They forcibly took US$37= consisting of the day's whole takings and all groceries in the shop. They proceeded to lock the shop from outside leaving the two girls trapped inside the shop.

It is alleged that thereafter they proceeded, in Count 2,  to Magomo Shop at the same Business Centre still armed. Zivanai Guvheya, the shopkeeper, had retired to bed inside the shop when the applicants and the accomplices stormed into the shop demanding cash. They forcibly took US$48= and various groceries.

In both counts, the applicants and the accomplices took property valued at US$278= of which nothing was recovered.

The applicants are denying the allegations and any involvement in the commission of the alleged offences. Both applicants were arraigned before a Karoi Magistrate on 19 April 2010 and they have been in custody to date, a period of about four months. The applicants are seeking bail pending trial since they are facing specified offences.

The applicant is charged with armed robbery on five counts. He is currently on trial at the Magistrates Court, Harare.

It is alleged that some time in December 2009 the applicant, his co-accused, Eddie Chirwa and Richard Zimba, connived and hatched a plan to commit a spate of armed robberies around Harare targeting elderly people. The plan was that the applicant and his co-accused, Samson Chigwende, would supply Eddie Chirwa and Richard Zimba with two sets of army uniforms and an air gun with which the two would use to commit armed robberies in and around Harare. The applicant and his co-accused would in turn receive part of the loot from the robberies so committed.

During the months of December 2009 and January 2010, Eddie Chirwa and Richard Zimba, dressed in army uniform and armed with the air gun so supplied by the applicant and his co-accused, went on to commit armed robberies against the persons and properties of five elderly complainants . The complainants are as follows:

(i) Turville Kille, aged 77, residing at 53 Gallant Drive, Mount Pleasant, Harare.

(ii) Peggy Tandaol, aged 82, residing  at 40 Northwood Rise, Mount Pleasant, Harare.

(iii) Dawson Gilbert Neville, aged 83, residing at 42 Couril Drive, Mount Pleasant, Harare.

(iv) George William Frederick Ellway, aged 82, residing at 17 Morgate Road, Mount Pleasant, Harare; and

(v) Patrick Ronald Chisholm, aged 52, residing at 73 Lavenham, Bluffhill, Harare.

The applicants are applying for bail pending trial.

The applicants are jointly charged with aggravated robbery as defined in section 126 of the Criminal Law (Codification and Reform) Act [Chapter 9:23].

The allegations are that the applicants, together with two other persons still at large, went to the complainant's residence at Khayalethu Hampden Plot E, Gwanda. They were armed with pistols. They proceeded to rob the complainant, one John Dicey, of ZAR90,000= cash, jewellery, and over two kilograms of gold valued at US$100,000=.

The respondent is opposing the granting of bail to all the applicants. The opposition is premised on two grounds, viz;

(a) Likelihood of abscondment; and

(b) Likelihood of commission of similar offences.

The Investigating Officer, Detective Sergeant Mpunzi, testified in support of the respondent's case. The applicants did not give viva voce evidence but were content with their written statements filed in support of the application….,.

On the likelihood of abscondment, the offence charged here is very serious, and, upon conviction, is likely to attract severe punishment – S v Ndlovu 2001 (2) ZLR 261 (H) and S v Biti 2002 (1) ZLR 115 (H). Even without the extra curial statements, there is evidence of the identification parade, and the recovered getaway Toyota Hilux motor vehicle, linking the applicants with the offence. With such calibre of evidence in support of the respondent's case the expectation of a substantial custodial sentence upon conviction provides an incentive for the applicants to abscond – S v Lulane & Anor 1976 (2) SA 204 (N).

The next question is the risk of commission of further crimes.

It is trite that bail is non-penal in character, but in bail applications, the court is empowered to refuse bail in instances where it considers it likely that if the applicant is admitted to bail he would commit an offence – see section 116(7) of the Criminal Procedure and Evidence Act [Chapter 9:07] and Attorney-General v Phiri 1987 (2) ZLR 33 (H)…,.

In casu, the applicants were not acting alone, but in association with others still at large. The outstanding accomplices are said to be armed. Such an association with others who are still at large is a relevant factor in this application – S v Vankathathnam & Ors 1972 (2) PH, H 139 (N) and S v Biti 2002 (1) ZLR 115 (H)…,.

Looking at the totality of the above facts, I am of the view that the applicants failed to show, on a balance of probabilities, that if admitted to bail they will-

(a) Not abscond; and/or

(b) Commit further crimes.

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, overpowered 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$15,000= and ZAR10,000= 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 Mcniel 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.

Counsel 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.

Counsel 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.

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 15^th May 2010.

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 two (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….,.

Counsel 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…,.

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 have 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.

This is an application for bail.  

The applicant is being charged with armed robbery that allegedly occurred on the 13^th February 2009 at the 60km peg along the Beitbridge-Masvingo highway. It is alleged that with the use of violence he induced the complainant to part with his property being:

(1) 1100 Nokia mobile phone;

(2) Motorolla C157 phone;

(3) Net One sim card; and

(4) Cash amounting to R14,600=.

The respondent has opposed this application on the ground that he is likely to absond and relied on the provisions of section 117(3)(b) of the Criminal Procedure and Evidence Act [Chapter 9:07].

To buttress this, counsel for the respondent has argued that the applicant resides and works in South Africa and has been there for the past twelve (12) years. In addition, thereto, he is a holder of a valid passport. Above all he is facing a serious charge.

The applicant, on the other hand, has argued that he is innocent of the charge being levelled against him in that he has never used the Beitbridge –Masvingo road on all the occasions he visited Zimbabwe. He further pointed out two major discrepancies in the whole matter in that:

The appellants were charged with robbery, as defined in section 126 of the Criminal Law (Codification and Reform) Act [Chapter 9:23]; 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, the first, second, and third appellants grabbed the complainant and dragged him into their bus where the fourth and fifth appellants were waiting. The 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= cash and airtime recharge cards for Econet, Telecel, and NetOne valued at US$150=. They then allegedly shoved the complainant out of the bus and drove away. The 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.

On the 20^th May 2014, the complainant in this matter, Zvaitwa Mukukutu, arrived at Beitbridge town enroute to South Africa where he intended to purchase a motor vehicle. He engaged one Samuel Mukonoweshuro (the applicant's co-accused) to help him clear the motor vehicle to be purchased as his agent. Samuel Mukonoweshuro then accompanied the complainant around Beitbridge town looking for accommodation for the night. It is the State case that Samuel Mukonoweshuro allegedly conspired with the applicant and one Jonathan Mutungamiri to rob the complainant. It is further alleged that Samuel Mukonoweshuro then hired, or made arrangements with, the applicant to lie in wait at another lodge. As they proceeded to the lodge, the applicant and Jonathan Mutungamiri then confronted them, produced a firearm and ordered them to lie down. The applicant and his co-accused then searched the complainant and robbed him of US$1,013=, R80=, a Nokia x 2 cellphone, a passport and other documents. The commotion drew the attention of a security guard who was at the lodge who threw a stone in the direction of the complainant and the robbers. The applicant is alleged to have fired a shot into the air, forcing the security guard to retreat into the safety of the premises he was guarding. The applicant and his co-accused fled into the bush and Samuel Mukonoweshuro accompanied the complainant to the police station where a report was made.

Investigations led to the arrest of the applicant and a search conducted at his house resulted in the recovery of a CZ pistol with a Zimbabwe Republic Police (ZRP) serial number BSAP 344 with a magazine loaded with 15 rounds of ammunition. The Zimbabwe Republic Police CZ service pistol had been stolen at Zimbabwe Republic Police, Drill Hall on the 10^th October 2006.

It should be noted that the pistol was recovered under the driver's seat of the applicant's Nissan Pulsar, registration number ACA 9694.

The applicant flatly denies the allegations and says that he was falsely implicated by his co-accused. He further denies that he was involved in any robbery. He explained that he was surprised by the recovery of the CZ pistol from underneath his driver's seat. In other words, the applicant implies that the pistol must have been planted by the police. The applicant did not venture to give an explanation regarding the blue woollen mask also recovered from his house.

The applicant contends that he is a suitable candidate for bail because he is presumed innocent until proven guilty. He contended that there is no risk of abscondment because no evidence has been placed before the court to indicate that he has attempted to flee the jurisdiction of the court.

The State has opposed the granting of bail largely relying on the fact that there is a real risk and likelihood that the applicant will abscond in view of the offence charged and the likely penalty upon conviction. The State contends that the evidence against the applicant is overwhelming, more particularly given the fact that the ballistics report confirms that the spent cartridge recovered from the scene of the robbery matched the firearm fired at the scene of the crime.

It is my view that given the nature of the offence, and the likely penalty to be imposed should the applicant be convicted, there is a real possibility that if granted bail pending trial the applicant may abscond. 

In the matter of S v Moyo HB23-05, the court observed and pointed out that where the State case is prima facie strong a conviction is almost guaranteed. With this knowledge, and in the light of the fact that the applicant is an ex-police officer, he is most unlikely to wait for a trial where conclusion will be against him. I am in agreement with counsel for the State that the due administration of justice is likely to be compromised if the applicant were to be granted bail pending trial. 

The applicant is not a suitable candidate for bail.

I must remark that, in general, these courts are slow to grant bail in cases of robbery, more particularly where firearms are used by the suspects in the commission of the offences. The courts generally impose heavy custodial sentences where convictions are secured and therefore there is a huge temptation for persons facing such charges to abscond and avoid trial.

The applicant was arraigned before the Harare Magistrate Court facing three counts of contravening section 122(1) of the Criminal Law (Codification and Reform) Act [Chapter 9:23] which relates to robbery committed in aggravating circumstances (armed robbery).

The brief allegations in respect of the three counts of robbery are as follows:

In Count 1, the applicant is jointly charged with six other persons, being, Ephraim Malcom Matiza, Trust Misola, Graig Benjamin Musasa, Taurai Fagai, Roy Fungai Mafunga and Mustapha Ganda, who all reside in the different suburbs of Harare. It is alleged that four other suspects are at large. It is alleged that on 12 October 2014 the applicant, with 10 other persons, proceeded to Number 3828 Rockview Park in Ruwa using two getaway motor vehicles, a Toyota Chaser, white in colour, registration number ADG 8309 and a white Toyota Vista station wagon registration number ADJ 3718.

At the premises, the applicant and his accomplices are said to have manhandled a gardener, one Nhamo Magaso, and they tied both his hands and legs after which they also blind-folded him. They proceeded to use force to open the kitchen door and proceeded to the complainant's bedroom where they stole a safe containing cash US$30,000=, an HP 13 Core laptop, silver in colour, and Stanbic cheque books. They loaded their loot into the Toyota Chaser and drove to Proton Farm in Caledonia, Acturus, where they broke the safe and shared the US$30,000= and other property stolen.

It is alleged that the safe was recovered on the applicant's indications after his arrest and that the applicant and his accomplices were also identified by the gardener after their arrest.

In Count Two, the allegations are that the applicant, with four others, Trust Misolo, Taurirai Fagai, Robson Paga and Mustapha Ngunda, together with five others still at large, proceeded, on 6 November 2014, to Number 58 Gaydon Road Greystone Park, Harare armed with a revolver driving get-away cars, a blue Mercedes Benz C200 registration numbers ABY 5171 and a silver Mercedes Benz C180 whose further particulars are unknown.

At the premises, the applicant and his accomplices are alleged to have scaled over a precast wall and accessed the kitchen through an open door. While inside the kitchen, they are alleged to have grabbed a housemaid, one Charity Mwadzura, by the neck, and, while pointing the revolver at her, demanded to know the whereabouts of the complainant, Bi Heyan. The housemaid was force marched upstairs where the complainant was busy on his laptop. At gun-point, the complainant's hands and legs were tied using a computer cable. The complainant was ordered to surrender all the cash he had failure of which he would be killed. It is alleged that the whole house was ransacked and the following property was stolen;

(a) A chubb safe containing three pistols.

(b) Three pistols, namely -

(i) Glock pistol serial number LN2 936.

(ii) Glock pistol serial number NXP 983.

(iii) Glock pistol serial number unknown.

(c) Firearm certificates for the three pistols.

(d) 300 x 9mm live rounds of ammunition.

(e) Company documents, all in the safe.

(f) Various unspecified clothes.

(g) Mini laptop.

(h) Cash US$485=.

It is alleged that the applicant and his accomplices loaded all the stolen property into the two getaway cars and drove to a bushy area in Tafara, Harare where they broke the safe, shared the three pistols and other property among themselves.

It is further alleged that after the applicant's arrest he and others led to the recovery of the stolen chubb safe at a bushy area in Tafara and that the pistols were recovered upon the applicant's arrest.

In respect of Count Three, it is alleged that on 14 November 2014 the applicant, together with Ephraim Malcom Matiza, Trust Misolo, Taurai Fagai, Robson Pagai, Mustapha Gunda, Jonathan Muchemwa and the other four accomplices at large proceeded to Number 537 Damba Road, Ruwa, the premises of a company called Graceb Investments, driving two get away motor vehicles, a silver Mercedes Benz whose registration numbers are unknown and a white Subaru B4 registration number ADJ 4803 belonging to the applicant. They were also armed with a revolver and the three Glock pistols stolen in Count Two.

At the premises, they allegedly scaled the precast wall and accessed the canteen where there were various people. They force marched these people into a room where one of the applicant's accomplices guarded them. The gang proceeded to a workshop where some workers were robbed of their cellphones and force-marched to a room under guard. The applicant and his accomplices are alleged to have ransacked all the offices at the premises and stole the following property;

(i) Cash US$39,600=.

(ii) Norinco pistol serial number 49109330.

(iii) Close circuit television decoder.

(iv) 4 laptops.

(v) Various clothes.

(vi) Various cell phones.

The applicant and his accomplices are then said to have tied all the complainants at the premises on both the legs and hands using ropes. They then took two motor vehicles, a grey Honda CRV registration numbers ACA 9323 and a Nissan Gloria Reg No. ACV 6755 which they used to flee from the scene. The two motor vehicles were then dumped at Letombo Spar, in Msasa Harare where the applicant and his accomplices had left their getaway motor vehicles.

It is alleged that the gang drove to Larfage cement and ZRP Support Unit where they shared the loot. It is alleged that the applicant and his accomplices were positively identified by the complainants, Wang Can, Liu Ting and Li Guangxin during the robbery at the company's premises. Further, it is alleged that the Norinco pistol and the applicant's Sabaru motor vehicle were recovered upon the applicant's arrest.

The value of the property stolen in all the three counts is US$98,150= and the value recovered is US$14,500= hence the actual prejudice of US$83,650=.

The circumstances of the applicant's arrest are alleged to be as follows:-

On 19 November 2014, detectives from the CID Homicide, Harare received information that the applicant and his accomplices were responsible for the spate of movie-style armed robberies in greater Harare. Acting upon this information, they proceed to Bob Farm in Mabvuku at about 2330 hours and arrested Ephraim Malcom Matiza at the farm who is linked to Count 1 and Count 3. It is alleged that Ephraim Malcom Matiza implicated Benjamin Musasa and one Roy Fungani Mafunga and led detectives to Roy Fungai Mafunga's House No.7464 Unit K, Chitungwiza. The detectives managed to locate Roy Fungai Mafunga who was driving a Toyota Vista registration number ADJ 3718 and Benjamin Musasa driving a Toyota Chaser registration number ADG 8309 at Chitungwiza Aquatic Complex that night after the two had parked their motor vehicles. The detectives blocked the two motor vehicles and arrested the two. It is alleged that these two, upon their arrest, implicated Taurai Fungai, Jonathan Muchemwa, Trust Misolo and the applicant and proceeded, that night, to lead detectives to the applicant's residence at No.6292 New Tafara, Harare.

It is alleged that at about 0200 hours, the detectives saw the applicant's motor vehicle, a white Sabaru B4 registration number ADJ 4803 parked along a road opposite the house with all the doors open. Inside this motor vehicle were the applicant, who was at the driver's seat, and the three others, Taurai Fagai, Jonathan Muchemwa and Trust Misolo. The detectives proceeded to block the Sabaru B4 motor vehicle in a bid to arrest the applicant and others and it is alleged that the applicant and his accomplices drove straight towards the police detectives' motor vehicle, a KB 300 Isuzu registration number ZRP 300E, hitting the police detectives' motor vehicle. It is alleged that the applicant and his accomplices started firing at the police detectives who returned fire and shot Taurai Fagai on the right thigh and the applicant on the right ankle after these two had bolted out of the Sabaru B4 motor vehicle running away. The other two, Jonathan Muchemwa and Trust Misolo, were arrested while still in the Sabaru 4 motor vehicle. The police Isuzu KB 300 motor vehicle sustained a slight dent on the front bumper.

It is alleged that the applicant's Sabaru B4 motor vehicle was searched immediately and the following was recovered;

(i) Glock pistol serial number LZA 936 with a magazine of 13 rounds (relevant to Count 2).

(ii) Glock pistol serial number NXP 983 with a magazine of 15 rounds (relevant to Count 2).

(iii) A Norinco pistol serial number 49109330 with 5 rounds (relevant to Count 3).

(iv) A pellet gun (not relevant to Count 1, Count 2 or Count 3).

(v) 359 x 9mm loose ammunition (relevant to Count 2).

It is alleged that it was after this arrest that the applicant and his accomplices led to the recovery of the safe stolen in Count 1, which had been dumped at Proton Farm, Caledonia in Acturus and the chubb safe stolen in Count 2 which had been dumped in a sewage in a bushy area in Tafara, Harare.

These are the detailed allegations of how the three Counts of armed robbery were committed, the nature of the property stolen, how the applicant was arrested, the property recovered, and how the applicant is implicated in these allegations.

In his bail statement, the 39 year old applicant, who resides at Number 6292 New Tafara confirmed his arrest in the early hours of 20 November 2014. The applicant stated that he is of fixed abode and was arrested while at his house. The applicant denies any knowledge or involvement in all the three Counts of armed robbery. The applicant raises the defence of an alibi; that on the dates these offences were committed he was out of Harare on business. The applicant does not specify as to when he left Harare or when he returned. The applicant does not also state where he had gone or the nature of the business he had attended to.

The applicant denied that he was arrested after a massive shoot out with the police and that the police are lying. Counsel for the applicant accused the police of lying and submitted that the police detectives callously shot at the applicant after they had ordered him to lie down. The applicant denied that he resisted the arrest at all.

It is the applicant's contention that no property was recovered on his person upon arrest and denies that he led the police to the recovery of any stolen property. Instead, the applicant alleges that he is being maliciously implicated by his accomplices for reasons unknown.

The applicant submitted that it has not been shown that he will not stand trial and that he has no intention of fleeing from the jurisdiction of the court. Further, the applicant stated that the State case, in respect of all the three Counts, is very weak as there is no evidence linking him to the offences other than the alleged implication by some of his accomplices - some of whom he said were even granted bail. The applicant said the State case is further weakened by the fact that his alibi has not been disproved. All in all, the applicant alleges that the police have acted in bad faith as they cruelly shot at him when he never resisted arrest and proceeded to plant fire arms in his motor vehicle.

In concluding, the applicant submitted that he is a proper candidate for bail and is willing to deposit US$1,000= as recognisance, report to the police as many times as may be required, and to continue to reside at his house on New Tafara.

The respondent opposed bail strenuously indicating that there are a number of reasons why the applicant should not be admitted to bail.

Counsel for the respondent submitted that the applicant is a flight risk as he tried to flee from the police at the time of his arrest resulting in him being shot. It was further submitted that the case against the applicant is very strong as the stolen firearms were recovered from the applicant's motor vehicle after his arrest and that he led police to the recovery of some of the stolen property hence a clear link to the offences….,.

In support of his position, counsel for the respondent called two police detectives, D/Sgt Gift Muuya and D/Sgt Charlie Munda both of C.I.D. Homicide Harare.

Detective Sergeant Gift Muuya (D/Sgt Muuya), a very experienced officer who has been in the police force for 21 years, is the one who arrested the applicant and his accomplices on 19 November 2014 to the early hours of 20 November 2014 together with a team of other three detectives.

Detective Sergeant Muuya narrated how, after the arrest of Ephraim Malcom Matiza at Bob Farm, he implicated and led to the arrest of Craig Benjamin Musasa and Roy Fungai Mafunga in Chitungwiza as already explained. He said upon the arrest of these two they denied involvement in respect of the robbery in Count 2 in Greystone Park, and, instead, implicated the applicant, Jonathan Muchemwa, and Taurai Fagai. These two, Craig Benjamin Musasa and Roy Fungai Mafunga, then led detectives to where the applicant and others were in New Tafara – specifically, the applicant's residence.

Detective Sergeant Muuya said he proceeded to the applicant's house at about 0200 hours in the company of three detectives using an Isuzu KB300 and all four were armed with AK47 assault rifles.

In Tafara, they were shown the applicant's Sabaru B4 motor vehicle which was parked along a road opposite the applicant's house with its doors open and there were four (4) people he later became to know as the applicant who was on the driver's seat, and Taurai Fagai on the front passenger seat with Jonathan Muchemwa and Trust Misolo in the rear. Detective Sergeant Muuya said they drove towards the applicant's motor vehicle with the head lights of the Isuzu KB300 on and proceeded to identify themselves as detectives shouting and ordering the applicant and his three accomplices to come out of the Sabaru B4 motor vehicle and submit to arrest by lying down. Instead, he said, the applicant started his motor vehicle driving at high speed towards the police vehicle and side-swiped the front bumper. He said at the same time the applicant and Taurai Fagai shot randomly at the police but did not hit the motor vehicle. Detective Sergeant Muuya said he and his colleague, who were in the back seat of the police motor vehicle, fired back and the applicant, together with Taurai Fagai, bolted out of their motor vehicle and started to flee. The other two, Jonathan Muchemwa and Trust Misolo, remained rooted in the car. He said warning shots were fired to no avail and they shot at the applicant who was hit on the right ankle as he fled and Taurai Fagai on the right thigh. They managed to arrest all the four (4) suspects.

Detective Sergeant Muuya said after the arrest of the four suspects they searched all of them and also the Sabaru B4 motor vehicle and discovered the following:

(a) Nothing was found on the person of the applicant, Taurai Fagai and Jonathan Muchemwa.

(b) Trust Misolo had, in his left trousers pocket, a Glock pistol magazine charged with 13 x 9mm calibre live rounds of ammunition. He was seated at the back of the Sabaru B4.

(c) Inside the Sabaru B4 motor vehicle they recovered the following -

(i) Glock pistol serial number LZA 936 with a magazine charged with 14 x 9mm rounds of ammunition. It was cocked and just under the driver's seat where the applicant was seated. This pistol is relevant to Count 2.

(ii) Glock pistol serial number NXP 983 with a magazine charged with 5 x 9mm rounds of ammunition and cocked – it was under the front passenger seat where Taurai Fagai was seated. This pistol is relevant to Count 2.

(iii) Norinco pistol serial number 49109330 with a magazine charged with 5 x 9mm rounds of ammunition. It was in a satchel bag between the rear seats where Trust Misolo and Jonathan Muchemwa were seated. The pistol is relevant to Count 3.

(iv) 341 x 9mm rounds of ammunition – these were in the same satchel bag described above and the ammunition is relevant to Count 2.

(v) A pellet gun in the boot of the motor vehicle.

Detective Sergeant Muuya said the two Glock pistols and rounds of ammunition were linked to the robbery in Count Two and the Norinco pistol to Count 3 and were later identified by the respective complainants.

Under cross examination by counsel for the applicant, Detective Sergeant Muuya said it is the applicant who drove the Sabaru B 4 motor vehicle side-swiping the police motor vehicle. He insisted that the applicant is one of the two suspects who randomly fired at the police. He said the visibility was good as they used the headlights of the police motor vehicle to beam at the applicant's motor vehicle which was in front of them, hence he was able to see the number of people in that motor vehicle and their sitting arrangement. He insisted that the applicant drove his Sabaru 4 motor vehicle at high speed towards the police motor vehicle hitting the fender as police returned fire.

Detective Sergeant Muuya gave very clear evidence and remained unshaken during cross-examination. He clearly explained what led detectives to the applicant; how the applicant was arrested; what was recovered upon the applicant's arrest; and how the applicant is linked to Count Two. He also explicitly narrated how and why the applicant was shot. I have no cause not to accept his version of events.

Detective Sergeant Charles Munda (Detective Sergeant Munda) was part of a team which interviewed the applicant and others after the arrest in connection with the three counts. He said on 20 November 2014 he interrogated the applicant and that the following emerged;

(a) In relation to Count 1, the applicant made indications as to where they had dumped the stolen safe, and led them to Proton Farm in Acturus when they recovered the safe in a gulley and recovered a duvet stolen in Count One.

(b) In relation to Count Two, he said the applicant and two others led them to an area between Mabvuku and Eastview where they recovered the safe stolen in Count Two which was dumped in a pool of water. Inside the stolen safe they recovered three (3) firearm certificates relevant to three (3) pistols stolen in Count Two and the complainant in Count Two's personal and business documents.

(c) Detective Sergeant Munda said he did not take part on the identification parade held in respect of Count Three.

The cross-examination of Detective Sergeant Munda by counsel for the applicant was half-hearted and feeble. It was clear he had no meaningful questions to put to him as he clearly explained the indications the applicant made in respect of Count One and Count Two.

In dealing with an applicant for bail pending trial the court should always strive to strike a balance between the liberty of the accused person and the interests of justice. In terms of section 50(1)(a) of our Constitution any person who is arrested must be released unconditionally or on reasonable conditions pending charge or trial unless there are compelling reasons justifying the continued detention.

The provisions of section 117 of the Criminal Procedure and Evidence Act [Chapter 9:07] give useful guidelines on the factors the court has to consider in dealing with whether there are compelling reasons justifying the denial of bail. They include, inter alia;

(i) Whether the accused, if released on bail, he will endanger the safety of the public or any particular person or will commit an offence referred to in the First Schedule.

(ii) Whether the accused will stand trial.

(iii) Whether the accused will attempt to influence or intimidate witnesses or to conceal or distort evidence.

(iv) Whether the accused's release will undermine or jeopardise the objective or proper functioning of the criminal justice system inclusive of the bail system.

I am not persuaded that the applicant is a proper candidate for bail.

The applicant is facing very serious offences for which, if convicted, he is most likely to be visited with a very lengthy custodial sentence. It is trite that the seriousness of the offence, alone, is not the basis to deny bail as the presumption of innocence operates in favour of the applicant. This has to be considered with other factors. See S v Hussey 1991 (2) ZLR 187 (S).

The evidence led clearly shows that the appellant is a flight risk. The manner in which he was arrested clearly demonstrates not only his disdain of the law but frightening determination to escape the long arm of the law. I do not believe that an applicant who engages in a gun battle with the police, in a bid to avoid arrest, can, by any stretch of the imagination be deemed to be a proper candidate for bail. The conduct of the appellant clearly endangered not only just the safety of law enforcements agents but the public in general. It is clear the gun-totting suspects cannot be allowed to roam our streets….,.

Other than being implicated by the other accomplices, the applicant is the owner of the Sabaru B4 motor vehicle used in the commission of the offence in Count 3. Further, the appellant is linked to all three Counts. In Count 1 he allegedly made indications just as in Count 2 leading to the recovery of the stolen safes in both counts which had been dumped in the bush. The two stolen Glock pistols and rounds of ammunition in Count 2 and the Norinco pistol stolen in Count 3 were recovered in the applicant's motor vehicle. The strength of the State case is likely to induce the applicant to abscond. This is fortified by the fact that the applicant does not proffer a plausible defence at all. The defence of an alibi which is half baked is not useful to the applicant at this stage in light of the evidence placed before the court.

I am satisfied that there are compelling reasons justifying the continued detention of the applicant. The application for bail lacks merit.

In the result, it is ordered that the application for bail pending trial be and is hereby dismissed.

This is an application for bail pending trial. The applicant is facing nine (9) counts of Robbery as defined in section 126 of the Criminal Law (Codification and Reform) Act [Chapter 9:23].

The application is strongly opposed by the respondent.

The circumstances, as given in the State papers, were that the applicant, and in the company of Ignatius Mudzingwa, Kelvin Kudzayi Chiwana, Shyleen Nyamweda, Franklin, and Mutirikwa robbed nine complainants between 12 September 2014 and 15 January 2015 at various places in the city of Harare. This was a group of robbers that were travelling in different cars robbing people. On the 16^th of January 2015 detectives received information about the whereabouts of the accused persons who were responsible for the robberies. Acting on that information, the detectives located the applicant and his accomplices at St Marys, Chitungwiza. Noticing that they had been cornered, the applicant and his accomplices sped off in their get-away car. The police fired shots resulting in Ignatius Mudzinge, Kelvin Kudzayi Chawana and Shyleen Nyamweda being shot dead. The applicant was shot on the back and survived. Franklin and Mturikwa escaped.

Upon the applicant's arrest, various property, namely, one Goodman DVD/CD Player, Generic Mini Projector and charger, Nintendo WII Controller S/N LEH 111008100, two disco lights, remote control, joystic controller and power pack for the projector, six WII video discs, five connecting disco lights, AV cables, various ladies new clothes, Blackberry Curve IMEI Number 357256042193802, Econet cell phone IMEI Number 360253025619754 and a Samsung GT1080 cell phone IMEI Number 358037035535822 were recovered.

The respondent and the Investigating Officer, who swore to an affidavit, opposed to the applicant being granted bail on the basis that the offences the applicant is facing are serious such that upon conviction a long custodial sentence is called for; that some property is yet to be recovered; that there is propensity to commit further offences; that his other two accomplices are still at large; and that he would interfere with investigations.

In his submissions, the applicant is raising a defence that he was erroneously linked to the commission of the offences. That he was never near the alleged places where such offences were committed. He stated that on the day he was arrested he was in the company of his friend Kelvin Kudzayi Chawana who came to pick him at his house at 0800 in Old Highfield. They later met Franklin who is Kelvin's friend. They proceeded to Machipisa Shopping Centre where they decided to accompany Kelvin to Chitungwiza who then called his girl-friend Shyleen Nyamweda. At Machipisa, one Muturikwa came with a bag containing various properties which I mentioned above. When Ignatious was talking to his girlfriend in Chitungwiza, the police arrived and ordered Ignatious to stop. The police shot Ignatious dead. Kelvin drove off the car and the police shot at them killing Shyleen and Kelvin. The applicant was then shot from his back while Franklin and Mturikwa escaped. His only friend was Kelvin and he did not know the rest. He claimed to have been shot while seated in the car and was not running away.

The principles which are followed in an application for bail pending trial are set out in section 117 of the Criminal Procedure and Evidence Act [Chapter 9:07]. The same principles were summarized in a number of cases. See Makamba v The State SC30-04; Aitken and Anor v Attorney General 1992 (1) ZLR 249.

In the case of Makamba v The State SC30-04, the principles were stated as follows:

“1.Whether the applicant will stand trial in due course.

2. Whether the applicant will interfere with the investigations of the case against him or temper with the prosecution witnesses.

3. Whether the applicant will commit offences while on bail.

4. Other considerations the court may deem good and sufficient.”

In casu, the applicant does not deny being at the scene of the arrests. His association with the other robbers is not consistent with a person who was not involved in the robberies. The fact that the applicant was shot at the back shows that he was running away as well. The offences are serious and attract a long custodial sentence. The fact that his other accomplices, Franklin and Mturikwa, are at large means that if released on bail the applicant may team up with them and commit further offences. The number of counts also shows a high degree of propensity to commit further offences. I agree with the respondent's submissions that his degree of involvement is a fodder for the trial court. In my view, therefore, the applicant is not a good candidate for bail. The recovered property links him to the robberies.

Wherefore, in the result, the application for bail pending trial is dismissed.

This is an application for bail pending trial.

The applicant is facing a charge of robbery as defined under section 126 of the Criminal Law (Codification and Reform) Act [Chapter 9:23].

The applicant appeared at the Magistrates Courts and was denied bail and was referred to this Honourable Court since the robbery which the applicant is facing involved the use of a firearm and hence falls under the Third Schedule Offences Part 1 paragraph 3(a) of the Criminal Procedure and Evidence Act [Chapter 9:07].

The circumstances of the case are that on 22 November 2014, and at about 1800 hours, the applicant was driving a commuter omnibus along Upper East, Avondale, Harare, in the company of two accomplices who are at large. The applicant and his accomplices hatched a plan to rob passengers in the commuter omnibus in and around Harare. They were armed with a firearm and knives. The applicant and his accomplices ferried passengers at Coppa Cabbana Rank intending to go to Marlborough East. The commuter omnibus had eighteen passengers. On the way to Marlborough East the driver diverted the route and turned into Upper East towards Mt Pleasant. One of the accused persons produced a knife and shouted at the top of his voice ordering everyone to keep quite. The other accomplice withdrew a pistol and pointed it at the other passengers whilst demanding for all bags. The applicant, who was the conductor, snatched the complainant's handbag and stole USD$440= and her Samsung S4 Galaxy IMEI number 358904050059490. After the robbery, the applicant and his accomplices pushed the complainant out of the moving vehicle. They drove off at high speed along Pendenis Road, Mt Pleasant, Harare.

On 29 January 2015 the police details received information to the effect that the stolen cell phone was being used by Gerald Tarasikirwa. Detectives interviewed Gerald Tarasikirwa who indicated that he bought that cellphone from the applicant but had sold it to one Owen Chinopamba. The cell phone was then recovered and it was positively identified by the complainant as hers. The detectives interviewed the applicant but he failed to give an account of where he obtained it. He was then arrested.

The respondent made a concession that the applicant is a good candidate for bail. The reason being that the cell phone had changed hands hence the evidence against the applicant was weak.

The investigating officer, Detective Sergeant Alice Chirombo, deposed to an affidavit opposing bail. Her basis for opposing bail being that the applicant is likely to interfere with witnesses and investigations. Further, some stolen property has not been recovered, and, if granted bail, the applicant might hinder the arrest of the outstanding accomplices. Furthermore, he might team up with his accomplices and commit other similar offences. In the event of a conviction he is likely to be given a lengthy custodial sentence and this would induce him to abscond if granted bail.

The principles which are followed in an application for bail pending trial are set out in section 117 of the Criminal Procedure and Evidence Act [Chapter 9:07]. The same principles were summarized in a number of cases. See Makamba v The State SC30-04; Aitken and Anor v Attorney–General 1992 (1) ZLR 249.

The principles were stated as follows:

(1) Whether the applicant will stand trial in due course;

(2) Whether the applicant will interfere with the investigations of the case against him or temper with prosecution witnesses;

(3) Whether the applicant will commit offences while on bail; and

(4) Other considerations the court may deem good and sufficient.

In casu, the applicant was linked to the robbery by the recovered cell phone which was positively identified by the owner. His accomplices are still at large, and, if granted bail, will not only interfere with investigations, but also may commit further offences.

The concession by the respondent is misplaced given the fact that, although the cellphone exchanged hands, the others were able to explain where they got it. The applicant dismally failed to give an account of where he got it. It follows that the doctrine of recent possession will operate against him.

Wherefore, in the result, the application for bail pending trial is dismissed.

The applicant is facing a charge of robbery as defined in section 126 of the Criminal Law (Codification and Reform) Act [Chapter 9.23]. He is making an application for bail pending trial.

The application is opposed by the respondent.

The applicant has petitioned this court to grant him bail, among other things, on the basis that his co-accused was granted bail.

The respondent has opposed bail on the basis that the circumstances of this applicant are different from those of the accomplice who was granted bail. The respondent submitted that the accomplices explained that they obtained the money, the proceeds of the robbery, as a loan.

The investigating officer has deposed to an affidavit opposing bail.

The circumstances were that the applicant, in the company of his accomplices, Kudakwashe Chidoti and Fungai Shonhiwa, acting in common purpose, armed themselves with a pistol, went to the complainant's house on 29 December 2014. They entered the house, tied the occupants, after assaulting them, and robbed them of 45,000 Euros in 500 Euro denominations. On 6 January 2015 information was received to the effect that the applicant had changed 4,500 Euros in 500 Euro denominations at Roadport Bus Terminus to illegal foreign currency dealers. This led to the arrest of the applicant.

At the hearing of the bail application, counsel for the applicant urged the court to treat persons facing similar allegations equally. Counsel for the respondent argued that people facing similar allegations may be treated differently.

Indeed, I had sight of the facts contained in the Request For Remand form in the case of S v Kudakwashe Chidoti and Fungai Shonhiwa CRB114-15/15, ref B06/15. The facts are similar to the allegations faced by the applicant. However, the investigating officer's affidavit in case CRB14-15/15 showed that the circumstances of Kudakwashe Chidoti were different from those of Fungai Shonhiwa. On that basis, Fungai Shonhiwa was not granted bail as evidenced by case B06/15.

In casu, the circumstances of this applicant are different from those of Kudakwashe Chidoti. The court appreciates the need to treat offenders the same in situations where they are facing the same charges. However, sight should not be lost of the fact that each individual's circumstances come under scrutiny when the court considers the right to individual liberty on one hand and the interest of administration of justice on the other hand. This applicant is a flight risk as he sometimes resides in South Africa where he once worked as a truck driver.

In the result, the application for bail pending trial is dismissed.