The applicant is jointly charged with one Witness..., and Nicholas., on five counts of armed robbery.,. The State consented to bail in respect of the two other accused persons and opposed in respect of the applicant.

The applicant referred me to the records in which his co-accused were granted bail. I have gone through both records.,. In both, the State., consented to bail. The allegations are primarily similar in all three charges, save for one allegation in Detective Albert's., affidavit. This sole allegation distinguishes the position of the applicant from his co-accused.    

It seems to me that it is solely on this fact that bail was opposed.,. So, the opposition is based on abscondment.

 Detective Albert., said that when the accused was arrested "he tried to escape, which means if granted bail he can abscond." Further, the detective alleges that the applicant is of no fixed abode as he "neither has a house or a family." He is said to be accommodated by some of the State witnesses. It is on this basis that bail is opposed.  

This attempt to run away from the police is a factor that works against the applicant. Already, the charges of armed robbery are serious. Evasion of arrest by someone facing such serious charges is a relevant factor in bail applications.

The appellants who were not admitted to bail can be divided into three categories for the purpose of examination of the facts on which the court a quo found that there was a likelihood that the accused, if he or she were released on bail, will not stand his or her trial. The categories are:

(a)Those who were found to have been hiding at a lodge and at the workplace in order to evade arrest.

(b)Those who were found to have contacts outside Zimbabwe.

(c) Those who fled the scene of crime in motor vehicles to evade law enforcement agents and allegedly aided and abetted other alleged perpetrators of the offence, to evade justice.

The first category consists of the first, sixth and seventh appellants. The following are the facts found by the court a quo in respect of each of them:

Tungamirai Madzokere - First Appellant

He was arrested while allegedly hiding from the police at Palm Lodge along Selous Avenue in Harare. The court a quo found that:

“He did not explain what he was doing at the lodge, leaving the police's allegations that he was hiding to avoid arrest unchallenged. Mr Kwaramba, for the applicants, alleged that Ollyn Madzokere and Mavis Madzokere were arrested by the police as bait for the first applicant who they were looking for, and were only released when the applicant was arrested. Though not a proper way of pursuing the arrest of an accused person, as it interferes with the rights of innocent third parties, however, proves that the first applicant was avoiding arrest. This, coupled with the fact that he had left home and was staying at a lodge several kilometers from his house in Glen View is proof that he is a flight risk. He also made indications at the scene which were captured on video. This further strengthens the respondent's case against him and may cause him to abscond.”

Yvonne Musarurwa - Sixth Appellant

She was arrested at Palm Lodge, and this is not disputed, although counsel for the applicant contended that this does not mean that she was hiding from the police. The court a quo found that:

“This is clearly not of any help to the applicant's case. A serious allegation was made that she abandoned her residence to avoid the police, yet all that could be said is that, that information is colourless. It certainly colours the applicant a flight risk. While there could be nothing wrong with booking oneself into a lodge under normal circumstances, there is certainly something wrong if one does it for purposes of avoiding arrest. That indicates an intention to avoid having to answer charges. It makes her a flight risk.”

Rebecca Mafukeni - Seventh appellant

She, like the first and sixth appellants, was arrested at Palm Lodge, and the court's findings are exactly identical to those of the sixth appellant above.

In addition to the first, sixth and seventh appellants who were arrested at Palm Lodge and found to have been hiding to evade arrest, making them flight risks, another appellant was arrested at his workplace.

Stanford Mangwiro - Fifth appellant

The court a quo found that:

“He is a flight risk. The Investigating Officer, in his affidavit of 10 June 2011, said he had deserted his residential address and was staying at his work place where he told some workmates that his hands were painful because of the assault he did on some police officers.”

The second category of appellants consists of those who were found to have a propensity to abscond, and to be flight risks, for the reason that they had relatives outside Zimbabwe, in Botswana.

Lazarus Maengahama - Second appellant

The court a quo found that:

“The fact that the applicant works in Botswana tilts the scales in favour of the interests of justice. Granting the applicant bail on the promise that he will abandon his employment in Botswana, and surrender his travel documents, is taking a serious risk as the applicant is most likely to abscond as no explanation has been given as to how he will survive without a job. He is experienced at living outside the country and is going to be constantly thinking about the case, which I have already said is fairly strong. He might, while waiting for his trial, succumb to the temptation to flee back to Botswana or any other country as he has obvious contacts outside the country.”

Stanford Maengahama -Third Appellant

Counsel for the respondent, in his heads of argument, conceded that the court a quo erred, and misdirected itself, in its finding in regard to this appellant. The court a quo said:

“He is not employed, and he stays at his brother's house. He is single. He therefore has no attachments to Zimbabwe which would persuade him to wait the trial of this case. He lied in his application that he has no connections outside Zimbabwe. This is a lie as his brother, the 3rd applicant, is working in Botswana. He is a strong, reliable contact person, who will have an obvious interest in helping him once he leaves the country. The fact that he lied to the court makes it difficult for the court to believe him when he says he is prepared to stand trial.”

The third category of appellants is that of those who were found to have a propensity to abscond, and to be flight risks, on the basis of allegations that they evaded arrest by fleeing from the scene of the crime, and aided and abetted other perpetrators of the offence to evade justice.

Phineous Nhatarikwa - Fourth appellant

The court a quo said:

“Mr Kwaramba submitted that the State's allegation that he drove off when the deceased tried to get into his vehicle proves he was not involved in the attack against the deceased. He further submitted that the fact that he parked a few metres away does not get him involved in the crime charged. Mr Nyazamba, for the respondent, submitted that the fact that people who had attacked the deceased got into his car and he drove away with them at high speed means he was aiding and abetting those who attacked and killed the deceased.

I agree with Mr Nyazamba's reason. 

In fact, that he was driving those who attacked the deceased from the scene is an indication that he is likely to abscond. It is known that the car he was driving was traced to him through CVR. He now knows he is facing a serious offence. His instincts towards fleeing from brushes with the law may have been reactivated. He is not a good candidate for bail.”

All seven appellants were not admitted to bail. They now appeal to this court against the refusal to admit them to bail. 

The grounds of appeal are as follows:

1. The court a quo erred by finding that the appellants were flight risks, there being insufficient evidence showing any inclination to abscond.

2. The court a quo grossly misdirected itself by making findings which were not supported by the facts and evidence placed before the court.

3. The distinctions drawn by the court for granting bail to other jointly charged applicants and denying others are improper distinctions. Where there is an improper distinction there is no distinction at all. The court ought to have treated like-accused alike.

4. The first, sixth and seventh appellants were denied bail for the reason that they were hiding at lodges to avoid arrest, and as such were flight risks. This finding was not supported by the facts and evidence placed on record. The court a quo mistook the facts.

5. The court a quo erred in coming to the conclusion that the second appellant's assurances to give up his employment in Botswana was not sufficient if he could not explain how he would survive without a job. In doing so, the court allowed an extraneous matter to guide or affect it.

6. The court a quo erred in coming to the conclusion that because of the second appellant's experience travelling outside the country, and his contacts outside Zimbabwe, he could be tempted to avoid trial. In doing so, the court failed to treat the second appellant like other applicants who were granted bail but had travel documents and had travelling experience outside the country.

7. The court a quo erred in accepting the allegations of the State as fact. In doing so, it allowed extraneous matters to guide or affect it.

8. The court a quo erred in finding that the video evidence strengthened the respondent's case and would induce the first appellant to abscond. In that regard, the court a quo erred in taking all the allegations of the State to be factual truths, even where there was insufficient evidence to support them.

9. The court a quo misdirected itself as to the evidence. The finding that the State case is fairly strong was not supported by the evidence placed on record.

10. The court a quo erred in coming to the conclusion that the third appellant lied that he had no connection outside the country when he had a brother in Botswana. It failed to consider that the brother was no contact at all as he was also in custody together with him. In doing so, the court failed to take into account a relevant consideration.

11. The court a quo erred in failing to treat like accused alike. The third appellant and his brother, Last Maengahama, had both stated in their bail application that they had no connection outside the country when they both had a brother who worked in Botswana. Yet the court granted bail to Last Maengahama and refused to grant bail to the third appellant.

12. The court a quo was wrong in denying the fourth appellant bail. The court could not have taken it as a proven fact that the fourth appellant was at the scene and that he drove off at high speed. Such allegations were not proved, and, as such, they could not be a basis for denying bail. Therefore, the court mistook the facts.

13. The court a quo erred by failing to come to the conclusion that by going to the police station to give food to those who had been arrested, the fourth appellant had not exhibited any evasive tendencies.

14. The court a quo denied the fifth appellant bail on the basis of an allegation by a police officer that the fifth appellant had deserted his home to stay at his workplace and that he had bragged to his workmates about beating police officers. This finding was not based on any evidence. The court seriously misdirected itself on the facts which amounts to a misdirection in law.

15. The court a quo failed to consider that whatever the State's fears were in regard to the seven appellants, they could be taken care of by the imposition of appropriate bail conditions. In fact, all those denied bail were not shown to possess any special means which would enable them to breach stringent bail conditions.

In his submission before the Court, in support of the grounds of appeal, counsel for the appellants argued as follows:

The respondent had conceded that the third appellant, Stanford Maengahama, is a suitable candidate for admission to bail, and that he ought to have been admitted to bail by the court a quo. In effect, the concession was to the effect that the court a quo erred and misdirected itself when it refused to admit the third appellant to bail.

Counsel for the appellants submitted that it was common cause, or accepted by both parties, in their heads of argument, that the lower court declined to admit all seven appellants to bail on the basis that there was a real likelihood of the appellants not standing trial if released on bail. Counsel for the apellants urged the court to consider the circumstances of Tungamirai Madzokere (first appellant), Yvonne Musarurwa (sixth appellant) and Rebecca Mafukeni (seventh appellant) as the same because all three were denied bail on the basis that they were flight risks after having been arrested while they were hiding from the police at a lodge in Harare. It was argued that the Investigating Officer's conclusion that these three appellants were hiding in order to evade arrest, was accepted by the court a quo. The court a quo took it a step further and found that the appellants ought to have explained their presence at the lodge when they were arrested. Counsel for the appellants said that another judge of the High Court held, in a subsequent bail application, that the explanation offered that the appellants were at the lodge on frolics of their own, could not be accepted because it should have been given at the initial bail hearing.

Counsel for the appellants view was that the crux of the matter is whether the nature of the evidence placed before the court a quo was of sufficient cogency as to prove that the three appellants were hiding from arrest. He relied on the case of S v Hussey 1991 (2) ZLR 187 (S) as authority for the proposition that a certain level of cogency of evidence must be reached capable of justifying a decision not to release an accused person on bail. He argued that the evidence placed before the court a quo, through the affidavit by the Investigating Officer, was not cogent enough for the purpose of a finding that the appellants were at the lodge to avoid arrest.

It was submitted that the affidavit does not state how long each of the three appellants had stayed at the lodge bearing in mind that they were arrested within 48 hours of the commission of the offence that they were subsequently charged with. The affidavit did not state whether the appellants were booked at the lodge under their own names, or whether they had packed any clothing to indicate an intention to stay at the lodge for a long period. Lastly, counsel for the appellants submitted that the affidavit does not state that the appellants knew, at the time of their arrest that the police were looking for them in connection with the alleged murder. He said had such evidence been in the affidavit it would have satisfied the test of cogency to justify a finding by the court a quo, that the three appellants intended to evade justice and were hiding at the lodge for that purpose. Counsel for the appellants submitted that there was no reason why the court a quo disbelieved the appellants' explanation that they were at the lodge to conduct romantic liaisons. He said the sixth and seventh appellants are single and at liberty to do as they please. He argued that the burden was on the State to place sufficient evidence before the court to show that the three appellants were hiding to evade arrest. According to him, the State failed to discharge the onus.

Counsel for the appellants pointed out that the allegation that the first appellant made indications at the scene of the crime which were captured on video is subject to being proved at the trial. He said the court a quo erred and misdirected itself in taking the allegation into consideration when it refused to admit the first appellant to bail. It was submitted that the first appellant would tell the trial court that the video was inadmissible because it was obtained by torture. He said he was denied access to legal representation. In short, the admissibility of the video would be put in issue before the trial court. The evidence contained therein, which the court a quo relied on without viewing the video, was not proven. It was submitted that the court a quo misdirected itself in relying on the allegation that the evidence in the video made the State case against the first appellant stronger. It was argued that the first appellant has strong ties to his community, and that, as a local councillor, he was anxious to go to trial in order to clear his name. The failure by the court a quo to take this fact into consideration amounted to a failure to take into account a relevant consideration. According to counsel for the appellants, the allegation that the first appellant was evading arrest, as shown by a text message on his wife's cellphone, was insufficient to prove that the first appellant was hiding to evade arrest. By relying on the allegation, the court a quo allowed an extraneous or an irrelevant fact to guide it. That is a misdirection.

The court was urged to compare the circumstances of the first appellant with those of Zwelibanzi Dube and Simon Mudimu, the fourteenth and fifteenth applicants in the lower court. Both were admitted to bail despite the fact that Zwelibanzi Dube was arrested after a night raid at his home. The court a quo found that there was no explanation as to why repeated police efforts to arrest him during the day had failed. It held that the lack of explanation should be resolved in Zwelibanzi Dube's favour. With the first appellant, the court a quo held that failure to explain his presence at Palm Lodge did not leave room for an innocent explanation. The court held that Zwelibanzi Dube should be given the benefit of the doubt for the lack of clarity in the Investigating Officer's affidavit. Similarly, it was argued that Simon Mudimu, the fifteenth applicant in the court a quo, was arrested during a night raid after police efforts to arrest him during the day had failed. Yet, the court a quo found that failure to show that Simon Mudimu was aware that the police were looking for him was in his favour. Counsel for the appellants argued that there is clear failure by the court a quo to treat like-accused alike. That is a misdirection. It was argued that the court a quo failed to treat the first, sixth and seventh appellants the same as Zwelibanzi Dube and Simon Mudimu.

On the application of the principle of propensity to abscond, counsel for the appellants submitted that there was no evidence before the court a quo justifying a finding that the appellants were guilty of such propensity. He defined propensity as “an inclination to repeat behaviour the third time; to repeat a similar act. Likelihood to behave in a certain way,” and submitted that propensity is a strong word and is best described as evidence of inclination towards repetition of behaviour. The court was asked to consider whether being found in a lodge within 48 hours after allegedly participating in the commission of a criminal offence supported a finding of propensity to evade justice. It was submitted that no evidence of intention to hide and evade arrest, or of propensity to abscond, was placed before the court a quo.

The fifth appellant was arrested at work. 

Counsel for the appellants submitted that there was no evidence placed before the court a quo to show that he was aware that police were looking for him and that he was hiding from them at his work place. There was no evidence as to how long he had been allegedly hiding; no clothes, blankets or other items were recovered to show that he was living there. Such evidence would have been sufficient to justify an inference that he was hiding from the police.

It was argued that Gabriel Shumba, the fifth applicant in the court a quo, was admitted to bail yet he was arrested in a night raid at his home where he was found hiding in a wardrobe in a bid to evade arrest. The Investigating Officer did not aver that Gabriel Shumba had a propensity to abscond. To the contrary, the fifth appellant was alleged to have a propensity to abscond. The circumstances of the arrest are similar. In Gabriel Shumba's case, it is a fact that he was hiding in a wardrobe to avoid arrest. It was submitted that in the fifth appellant's case, the allegation that he was hiding from the police at his workplace is subject to proof. Counsel for the appellants submitted that is evidence of the failure by the court a quo to treat like-accused alike. That he said was misdirection on the part of the lower court.

The second appellant worked in Botswana. He was found to have a propensity to abscond. It was submitted by counsel for the appellants that this was a serious misdirection on the part of the court a quo. He said most of the applicants who were admitted to bail have passports and are frequent travellers outside the country. They had contacts outside the country. Last Tamai Maengahama is a brother to the second appellant. He is one of three brothers who were arrested in similar circumstances and is facing similar charges. He is the most affluent of the three brothers and better travelled to other countries yet he was admitted to bail and ordered to surrender his passport. The court a quo did not find that he was likely to abscond because he had contacts outside the country. There was a failure to treat like accused alike.

It was submitted that the court a quo appreciated the elements of the principle of propensity. It however misapplied the principle and confused itself by the phrase propensity to abscond. The court a quo said:

“What would establish a strong propensity is evidence that the applicants have previous convictions for public violence and are facing several similar cases; it should be carefully considered to ascertain whether that likelihood is present.”

Counsel for the appellants argued that the fourth appellant was treated by the court a quo as if the allegation by the Investigating Officer, that he fled from the scene of the crime had been proved. It was submitted that this was a misdirection because the fourth appellant disputed the averment. No witnesses were called to testify that he indeed fled from the scene despite the fact that the Investigating Officer alludes to the fact that the fourth appellant was observed by undercover agents. It was argued that, even if it were accepted that the fourth appellant fled from the scene of the crime with the intention of evading arrest, it would not establish a propensity to abscond. Counsel for the appellants submitted that, for a finding of a propensity to abscond to be justified, there has to be evidence of repeated or habitual acts of evading the arm of the law. He said the court a quo misdirected itself because there was no evidence of such behaviour by the fourth appellant. On the contrary, it was argued that the fact that the fourth appellant took food to some of his colleagues who were at a police station should have been treated as evidence of lack of intention to evade the police.

The court was asked to compare the circumstances of the fourth appellant with those of Cynthia Manjoro, the eleventh applicant in the court a quo. She was alleged to have sped off from the scene of the crime, in a motor vehicle with some of the deceased's assailants. The Investigating Officer alleged that this showed an intention to evade arrest on her part. The court a quo initially found her to be a flight risk but later admitted her to bail on the basis of changed circumstances. Counsel for the appellants submitted that the fourth appellant should have been treated in the same manner as Cynthia Manjoro. He said the court a quo misdirected itself in failing to do so.

Counsel for the respondent indicated to the Court that, after a careful consideration of the submissions by counsel for the appellants, taking into account the principles of law applicable in an appeal of this nature, and the findings of the court a quo, the State was prepared to make the following concession. It conceded that:

1. The court a quo may have misdirected itself by failing to apply the principle of treating like accused alike, or of equal treatment of accused persons facing similar charges, in an application for bail pending trial.

4. The court a quo was correct not to take the seriousness of the offence, alone, as a factor in denying the appellants admission to bail.

Counsel for the respondent submitted that the respondent was not making the same concession in respect of the first appellant. He said apart from being arrested at a lodge and found to have been hiding to evade the police, the first appellant made indications at the scene of the crime. He said the first appellant made a statement in which he allegedly gave details of his participation in the commission of the offence. Counsel for the respondent argued that the evidence that the first appellant was hiding at the lodge is different from what the Investigating Officer said about the sixth and the seventh appellants. The first appellant allegedly sent a text message to his wife telling her not to open the door to anyone and not to tell anyone where he was. Counsel for the respondent said the communication showed that he was aware that the police were looking for him and his presence at the lodge was an attempt to evade arrest. Counsel for the respondent submitted that the court a quo was correct in finding that the first appellant was a flight risk because of the strength of the State case against him. It was conceded that while Gabriel Shumba's circumstances were similar to that of the first, sixth and the seventh appellants in that they were all arrested while hiding from the police, they differed materially in respect of the first appellant. He said there was the additional circumstance of the first appellant having made indications which were captured on video. The indications distinguished his case from that of Gabriel Shumba and the other appellants.

Counsel for the respondent argued that the meaning of the phrase "propensity to abscond" was that the accused person had an inclination to repeat what he has done before. He submitted that the evidence before the court a quo showed that the first appellant had an inclination to repeat what he had done before which he said was that:

1. He fled from the scene of the crime and evaded arrest by police officers. He even aided and abetted other assailants of the deceased to flee from the police.

2. He stayed away from home and warned his wife not to open the door or tell anyone where he was.

3. He harboured the sixth and seventh appellants at Palm Lodge and assisted them to evade arrest.

4. The court a quo refused to accept his explanation that he was at Palm Lodge for purposes of a romantic liaison.

Counsel for the appellants argued that consideration of the definition of propensity, set out by the court a quo, will show that the first appellant cannot be found to have a propensity to abscond. The reason is that the nature of the evidence placed before the lower court consisted of bald assertions by the Investigating Officer. The admissibility of the video evidence was going to be challenged at the trial. He said there was no suggestion that the first appellant has been convicted of similar offences or that he faced similar charges before and evaded arrest, justifying a finding that he has a propensity to abscond. Counsel for the appellants said that if the court applies the principle of treating like-accused alike, the first appellant should be treated in the same manner as the applicants who are alleged to have made indications at the scene of the crime. They were admitted to bail. Counsel for the appellants argued that as the first appellant is not the only one who is alleged to have made indications there is no reason for not treating him in the same manner as those other accused persons who are facing similar allegations and yet have already been granted bail….,.

A concession has been made by the State counsel in respect of the sixth and seventh appellants on the ground that the court a quo erred in finding from the single incident of avoiding arrest that they had a propensity to abscond. The same concession, which the court finds was properly made, was not extended to the first appellant.

When considering the case of the first appellant, it is necessary to state that the substantive grounds on which the misdirection by the court a quo was conceded in respect of the sixth and seventh appellants apply to him. The principle of equality of treatment which requires that those who are in like circumstances must be treated alike would apply. This is particularly so when regard is had to the case of Gabriel Shumba. He was arrested by the police at night whilst hiding in a wardrobe at his home. The court a quo granted Gabriel Shumba bail. Hiding in a wardrobe to avoid arrest is not different from hiding in a lodge to avoid arrest. Both places serve the same purpose in as far as their occupants are concerned. The Court finds no reasonable basis for differentiating the first appellant from the sixth, seventh appellants and Gabriel Shumba….,.

There is a concession in respect of the fourth appellant. The court finds that the concession is properly made. The principle of equality of treatment applies in favour of this appellant. 

One Cynthia Manjoro was arrested for the same crime as the fourth appellant. The allegation against her was that after the deceased had been killed she allowed the assailants to get into her car and drove from the scene with them at high speed. The same allegation was made against the fourth appellant. Both cars did not belong to the drivers. They were traced through the Central Vehicle Registry (CVR) to the political party of which they were members. Cynthia Manjoro was granted bail whilst the fourth appellant was refused bail. 

In light of the concession and the fact that there are no substantial grounds on which the case of Cynthia Manjoro and that of the fourth appellant can be treated differently he is entitled to be released on bail.

In addition, I am extremely concerned by the lack of diligence, and cavalier attitude, of counsel for the respondent in this matter.

While, as an officer of the court, he is expected to be fair in his representation of an accused, or suspect's, interests, such “fairness” should not leave the court with an impression that he is the applicant's second legal counsel.

My observations, lest I am wrong, is based on his casual dismissal of the applicant's co-accused's statement implicating the applicant in this serious matter. Where there is such an allegation, the respondent should be concerned, and be eager to test the truthfulness, or otherwise, of the said allegation, as opposed to the readiness to believe the applicant's allegation without more.

Such test can only be done if the applicant stands trial, which, in this case, he is most unlikely to attend in light of his co-accused's warned and cautioned statement.

These courts cannot, and should not, be used to rubber-stamp decisions which appear to be riddled with all the ingredients of impropriety, all in the name of the State being dominus litis in criminal cases....,.

1....,.

2. Counsel for the respondent should not be involved in this matter again.

This is an application for bail pending trial. In fact, the trial has commenced in these proceedings.

The background facts are the following.

The applicant was arrested on 3 April 2006 and has been in custody to date. The applicant is charged with two counts of armed robbery. The applicant, in the company of an accomplice, are alleged to have robbed, at gunpoint, two different complainants on 2 April 2006, in two different parts of Bulawayo. The vehicles in question are a Toyota Hilux and Nissan Hardbody. In the latter charge, they also robbed the complainant of two hundred litres of petrol, 3 by 25 litres tins, a Nokia 5110 cell phone and Botswana Pula 2000.

The applicant's co-accused was granted bail on 16 May 2007 and he absconded and has not been re-arrested since then.

The State's ground of opposition is abscondment.

The applicant was found in possession of the stolen vehicle soon after the theft. It is his defence that he was sent specifically from South Africa, where he is resident, to come and collect the stolen vehicle.

The background facts are the following.

On 2 July 2009, the applicants, acting in common purpose, connived to rob the complainant, Simeon Takariza, of gold ore, at West Court Mine, Kwekwe. The first three applicants are employed by the Zimbabwe Republic Police. The other two applicants were employed by the complainant at the time of the offence. The applicants drove to the said mine in a police coloured vehicle, a Mazda B1800, bearing registration number ZRP 3120M. The applicants threatened to arrest the complainant for allegedly failing to produce mine documents. They demanded one tonne of gold ore in order for them to drop the alleged charges against the complainant.

The complainant stood his ground.

The applicants ordered mine workers to load gold ore into the police vehicle using some sacks and tins. The workers obliged, and loaded one tonne of gold ore into the police vehicle, and the applicants departed with their loot.

The respondent premises its case of likelihood of abscondment on the fact that two of the applicants employed by the complainant will lose employment, and they will be induced to abscond.

It is not clear, from the respondent's papers, how this factor will affect the..., three applicants who are policemen. It is trite that persons jointly charged with an offence must be treated in the same way, unless there are factors personal, or related to the offence, which suggest otherwise – S v Ruturi (2) 2003 (1) ZLR 537 (H)...,.  

The applicant is the fifth accused, jointly charged with four accomplices.

It is alleged by the State that the applicant, who was a security guard  at Stanbic Bank, Chegutu for the past four years, participated in the planning of the robbery by providing logistical information to her co-accused. The State contends that while her involvement may appear to be minimal she is equally liable for the consequences of the actions of her colleagues, notwithstanding that she did not actively participate in the robbery physically. It is also alleged that the applicant facilitated a reconnaissance mission on 28 December 2009 in which her co-accused, Jotamu Gonese and Akim Matare, visited the bank a day before the offence was committed. During the course of the robbery, the Assistant Bank Manager was shot. The applicant was allegedly implicated by the second accused who is her nephew; that is Akim Matare.

The State fears that if released on bail the applicant is likely to abscond to South Africa where some of her co-accused' are hiding.

The applicant denies furnishing any information to Akim Matare or any of her co-accused. She contends that the State case against her is weak as there is no evidence linking her to the offence. She claims she has no international connections, and has no means to abscond, and, in any event, investigations have been completed. The balance should, therefore, tilt in her favour and she should be granted her liberty pending trial.

Armed robbery is a serious offence which attracts lengthy custodial terms of imprisonment. It is, however, trite that the seriousness of an offence, on its own, is not reason to deny an applicant bail.

In casu, the State relies not only on the implication of the applicant by her co-accused but also to circumstantial evidence that points to her involvement in the planning of the commission of the offence in which she provided logistical information that led to the “successful” heist. The applicant's alleged complicity and participation in the reconnaissance mission of 28 December 2009 is also based on circumstantial evidence arising from activities that were observed by a number of State witnesses on the day in question. It is also the State's allegation that she is known to all the State witnesses, and her release on bail will inspire fear in them.

The reliance by the State on circumstantial evidence as opposed to direct evidence does not, in my view, invalidate the State's fear that she may not stand trial as her alleged participation in the commission of the offence, though not direct, is of critical relevance to the accomplishment of the robbers' mission, and her fate is likely to be thus the same, or nearly so, of that of the actual perpetrators. The State alleges that when her co-accuseds approached the bank on the date of the commission of the offence they pretended to force-march her into the bank. A couple of witnesses' statements, which form file B282/10, the bail application by Jotamu Gonese, state that the applicant was force-marched into the bank. The dispute between the State and the applicant is whether or not the “force-march” was for real or it was staged – a pretence. The balance, on the issue is, in my view, tilted in the State's favour when consideration is given to the further factor highlighted by the State that she was the only victim at the bank from whom nothing was stolen. This ought to be viewed against the fact that Akim Matare, the second accused, is her nephew. 

It has been submitted that the State case is very strong.

I, however, believe that this is so only in respect of the first applicant, William Charamba. The complainant in Count 2, Zivanai Guvheya, did not identify any of the applicants and all the property taken from him was not recovered. In fact, in Count 2 there is no evidence at all linking the applicants to that offence except on the basis that they are suspects in Count 1. However, in respect of Count 1, Precious Bangura, in her statement, implicated the first applicant, William Charamba, whom she knew as a local resident of the area and a traditional healer. She said that a day before the commission of the offence she had spent the afternoon playing a game of cards with the first applicant. During the robbery, she said that out of the four culprits she was only able to identify the first applicant because there was some light they were using in the shop (a torch) and that the torch, at some stage, flashed onto the first applicant's face. She said she was able to clearly see the first applicant's face and that he was a person very familiar to her. Precious Bangura said the first applicant, at all material times, remained behind the other three assailants, hiding his face, but she was able to see the first applicant and identify him. Prima facie, there is evidence linking the first applicant to Count 1 and the State case in that regard is strong. The complainants, in Count 1, are very young children who are vulnerable and susceptible to intimidation. To that extent, therefore, the fear that the first applicant who was allegedly identified in Count 1 by Precious Bangura may intimidate her and interfere with the interests of justice is well founded.

The same cannot be said of the second applicant, Clever Madzanga.

Generally, jointly charged accused persons should, as a matter of principle, be treated equally. They may, however, be treated differently if there is some justification, either in respect of their personal circumstances or in the manner each individual contributed in the commission of the alleged offence.  See S v Lotriet and Anor 2001 (2) ZLR 225 (H). In casu, the State case is only strong in respect of the first applicant and it is in respect of the first applicant that the administration of justice would be compromised if he is released on bail at this stage.

In this circumstance, the application for bail pending trial in respect of the first applicant, William Charamba, is dismissed.

The second applicant, Clever Madzanga's application for bail pending trial is hereby granted. Bail is granted on the following conditions in respect of the second applicant -

(i) That the second applicant deposits the sum of US$100= with the Clerk of Court Karoi.

(ii) That the second applicant shall reside at Plot No.9 Parental Farm, Tengwe until the matter is finalized.

(iii) That the second applicant shall report once every Friday at Tengwe Police Station between 6am and 6pm.

The State also fears that if granted bail the applicant is likely to interfere with witnesses.

The complainant is currently under the custody of her parents. Her father, who is the head of the family and wields enormous power, as already demonstrated, has married her to the applicant. He has already accepted lobola from him and is a possible accomplice in this crime. The possibility that the two might connive with each other to defeat the ends of justice cannot be excluded regardless of where they may be residing in this time and age of modern communication technology.

The applicants are alleged to have shot and killed one white rhino with an FN rifle belonging to Accused Two. They are said to have dehorned the rhino and Accused Three and Four were later arrested at Sam Levy Village while selling the horns. The two accused persons then led the police to Accused Five and Six who were found in possession of the said rhino horns.

The six accused persons appeared before the magistrate at Masvingo charged with contravention of section 45(1) as read with section 128 of the Parks and Wildlife Act (Control of Hunting of Specially Protected Animals and Products) Act [Chapter 20:14].

Accused Two, who is alleged to be the owner of the rifle used to kill the animal, has since been granted bail.

The three accused persons, who were denied bail, now appeal to this court arguing that the hearing magistrate misdirected himself by denying them bail when they were entitled to equal treatment with Accused Two. In fact, they were better suited to be granted bail than the second accused who was the owner of the gun used to kill the animal.

The facts, as correctly found by the magistrate, tend to establish that all the accused persons, with the exception of Accused Two, were caught red-handed actively selling the rhino horns in question. Accused Two was only implicated by his co-accused. He denied the allegations. The magistrate reasoned that the State case was weak in respect of the second accused because his accomplices' confessions were inadmissible against him and there was no other direct evidence against him.

Indeed, that is the correct position at law.

He then granted the second accused bail on that basis. The rest of the accused were denied bail on the basis that the State had a strong case against them in that they were caught red-handed in the process of committing a very serious crime thereby exposing themselves to a severe penalty which may prompt them to evade trial.

I honestly cannot find any fault with the magistrate's line of reasoning and interpretation of the law. That being the case, the application for bail can only fail. It is accordingly ordered that the application for bail be and is hereby dismissed in respect of all the three applicants.

During the course of hearing this application I did ask for details of the allegations made against other persons who stand accused of raping the same minor in order to gain a greater insight into this matter.

I postponed the proceedings for that purpose.

I have since acquainted myself with such allegations and remain of the view that the present application cannot succeed.

The applicants are jointly charged with armed robbery together with one Tafadzwa Chancellor Tandi. Their co-accused, Tafadzwa Chancellor Tandi, was granted bail by my sister Judge MAVANGIRA sitting at the High Court, Harare.

The State is opposing bail in respect of the applicants.

The first applicant faces several other similar offences. That is not the case with the second applicant.  The application was made some ten days before the trial date set down in the Regional Court.

There is a likelihood that the applicants will abscond and not stand their trial. Further, there is a likelihood that they will commit similar offences as they have already shown a propensity to do so.

The second applicant was found in possession of the stolen cell phone. Both applicants were identified by the complainant.

Before the court a quo, the respondents' legal practitioners made submissions in answer to the State's laid out fears....,.

With regard to the first stated fear or concern, it was submitted that the seriousness of an offence does not, on its own, make a person ineligible for bail. He cited S v Hussey 1991 (2) ZLR 187 (SC)..., in support of his submission. He further submitted that the seriousness of an offence, taken together with other considerations, may, however, lead a judicial officer properly to refuse the granting of bail.

Regarding the second fear or concern, it was submitted that this is a bald statement or assertion which does not amount to cognisable indication of a likelihood to abscond. It was submitted that there is no indication that any of the respondents would abscond if admitted to bail.

As to the third ground, it was submitted that the State did not indicate how the respondents would interfere with witnesses and the investigations. The basis for this fear, according to the public prosecutor, was the allegation that the respondents had blocked and hindered the safe passage of an ambulance which was ferrying an injured victim of their violence from Nyanga Hospital to a referral centre. It was, in response, submitted that this fear could not reasonably attach to all the respondents as they were not all arrested at the same place and at the same time. The State had not indicated which of the respondents were arrested at the hospital and are thus alleged to have blocked the ambulance's way. It was submitted that they cannot all be denied bail on the basis that they blocked the ambulance's way. It was stated to the magistrate that eleven of the respondents were abducted by certain persons and dropped off at Nyamaropa Police Station. The first respondent was apparently arrested whilst he was at Parliament. It was submitted that these twelve were not arrested at the scene of the crime, and, furthermore, that the witnesses were not known to the appellants.

As to the fourth concern, it was submitted that the State has not proffered any evidence that these respondents, or any of them, have a propensity or inclination to commit offences. The same submission was repeated in response to the fifth concern of the State.

The State also made the further submission that the respondents must stay in custody for their own safety as they would thus be protected from criminal activities which might be carried out against them by members of the community. The response thereto was that that fear by the State must not hinder the respondents' right to liberty. S v Bhebhe & Ors 2002 (1) ZLR 137 was cited by the respondents' counsel (s?) in support of this submission in response. The headnote thereof records that it was held that fears for the safety of the accused because of the unlawful actions of the mob outside the courtroom, threatening to kill the accused, were not a ground to refuse to grant bail.

The first respondent's legal practitioner laid before the court detailed submissions regarding his circumstances and the reason why the interests of justice will not be prejudiced or jeopardised by his admission to bail.

Similarly, the legal practitioner for the second to the twenty third respondents also made submissions on the lack of cogency of the State's reasons for opposing bail.

Submissions made in this regard include the following: that all the respondents have no links outside the country; they have no travel documents; they are not persons with influence; they do not reside in the same village; they are not known to have committed similar offences; they are farmers and have been detained during the rainy season; they are of fixed abode and are permanent residents with dependants. It was submitted, in addition, and with particular reference to the fourteenth and fifteenth respondents, that they are husband and wife and no-one was looking after their children. With particular reference to the thirteenth respondent, it was also submitted that he was 82 years old and is partially blind and thus would not abscond. The tenth and the twenty-third respondents were also said to be employed. The further submission was made that the seventy who are allegedly still to be arrested, do not need to be told to flee by the respondents, upon the respondents' release. It was finally submitted that the court could impose appropriate conditions to the respondents' bail in order to ensure their attendance at their trials.

The submissions pertaining to the second to the twenty-third respondents were adopted in respect of the twenty-fourth respondent.

In response to all these submissions, the public prosecutor addressed the court in the following terms:

“The defence has dismally failed. The State stands by its grounds, especially second to twenty third. Accuseds' submissions must be a joke or circus. We stand by our submissions.”

It appears to me that this is the same situation which was faced by the court in S v Lotriet 2001 (2) ZLR 225 (H) where..., the following was stated:-

“At the resumed hearing his (the Attorney-General's representative's) answer to the allegations was that Mr. Ndlovu 'has not been charged with fraud - but with [contravening] the Prevention of Corruption Act. Hence, each matter is dealt with according to its own facts and merits.' That bald and general response by the Attorney General provides no answer to detailed allegations made by the applicants…,. In the result, therefore, while even if it is not possible to make positive findings on the allegations made by the applicants, those allegations remain unanswered or, at best, inadequately answered by the Attorney-General. In an application for bail pending trial, the initial onus is on the State to prove the necessity of keeping the applicants in custody. It is not necessary for the applicants to prove that they are to be released on bail. The response of the Attorney-General does not discharge that onus.”

In Kuruneri v S HH111-04..., HLATSHWAYO J stated the following -

“In my humble view, therefore, the notion of the accused having an onus to discharge to enable him or her to be admitted to bail is not part of our law as legislated. Having cleared this legal debris, then the place of the constitutional presumption of innocence in bail application becomes clearer. The presumption operates fully and at the general level. It is because of the presumption of innocence that the courts are expected, and indeed required, to lean in favour of the liberty of the accused. In its request for remand (Form 242) the State puts across its reasons for opposing the granting of bail. In his or her application for bail, the applicant addresses the concerns of the State and makes any other averments which tend to favour his admission to bail. The State then responds. Finally, the judge or magistrate assesses all this information with a view to 'strike a balance between the interests of the prosecutor in obtaining justice for the State, as one party in the accusatorial process, interests of the accused in obtaining justice for himself' (Legal Forum, op cit., p26). If the finding is that, to use the words of GUBBAY CJ in Aitken's case, 'the case against the applicant is neither obviously strong nor obviously weak', that the State's fears of abscondment or interference with witnesses and the applicant's assurances to the contrary are equally balanced, then the presumption of innocence would require the court to lean in favour of the liberty of the accused person and grant bail.”

In S v Benatar 1985 (2) ZLR 205 (HC)..., the following was stated:

“It has been said:

In striking a balance between the liberty of the subject and the proper administration of justice, the imposition of conditions can be decisive. Where bail can be granted subject to safeguarding conditions, the court should, if possible, lean in favour of doing so...,. (See headnote; S v Bennett 1976 (3) SA 652 (C).”

In casu, the State has not, in my view, shown why each individual respondent ought not to be granted bail or is not a suitable candidate for bail. Having heard the submissions made on behalf of the respondents by the respondents' legal practitioners, the public prosecutor did not take it upon himself to answer to the detailed allegations made. He gave a rather bald and generalised response. In answer to questions posed by this court, State counsel submitted that the circumstances of the rest of the respondents were not given as much attention or coverage by both the public prosecutor and the respondents' legal practitioner, as was given to the first respondent's.

I may comment on this in passing.

There is an element of truth in this submission, albeit in varying degrees, with respect to the public prosecutor and the respondents' legal practitioner. This observation seems to me to be a sad reflection of the reality manifesting in this case. Although twenty four respondents are cited and are all represented by the one counsel, it is only the first respondent whose cause has received most of the individualised, and, in this case, animated attention from both the State and the defence counsel. This same scenario appears to have also prevailed in the proceedings before the magistrate. Could this apparent differentiation be based on the fact that the first respondent is a public figure and a prominent member of society and the other respondents are not? If this be so, this is no valid justification for such an approach as the law does not discriminate.

All persons are viewed equally before the law. I need not comment any further on this aspect.

For the reasons discussed above, I am satisfied that it has not been shown to this court that each and every one of the respondents is not a suitable candidate for bail. It is my considered view that appropriate or suitable conditions can be imposed upon the respondents to ensure that the proper administration of justice will not be prejudiced.

I therefore find that the respondents are entitled to bail. The appellant's appeal is dismissed.

This finding was pronounced in court on 11 March 2011. I then proposed to impose the same conditions as were set by the magistrate. I also proposed to add a condition requiring each respondent to periodically report and present himself or herself to the police. I then invited both counsel (s?) to assist the court in suggesting any other possible and suitable conditions or make any other submissions they may wish to make on the issue of applicable conditions for the consideration of the court. Both counsel asked for an opportunity to confer amongst the parties. The request was granted and they advised the court of their agreed position on this aspect. Thereafter orders were issued to the following effect:

1. Each respondent shall deposit US$50= with the Clerk of Court at Nyanga Magistrates Court.

2. Each respondent shall reside at his or her given address until the finalisation of this matter.

3. (a) The first respondent shall report at Harare Central Police Station, CID Law and Order section once every Friday between the hours of 6.00am and 6.00pm.

(b) Each and every one of the second to the twenty-third respondents shall report at Nyamaropa Police Station once every Friday between the hours of 6.00am and 6.00pm.

(c) The twenty-fourth respondent shall report at Nyanga Police Station once every Friday between the hours of 6.00am and 6.00pm.

From the circumstances of the case, it is apparent that the applicant had accomplices when the offences were allegedly committed. One of the accomplices was arrested and admitted to bail.

The other accomplice is still at large.

The fact that the one accused is still at large does not assist the applicant's position for it endangers the interest of ensuring that prosecution is done or effected to its logical conclusion. The one accused was admitted to bail but his circumstances are different from the applicant in that he is not likely to abscond the court's jurisdiction since he is a Zimbabwe national. The circumstances of the applicant and that of his accomplice are different thus justifying different treatment.

I appreciate the need to treat jointly charged accused persons equally but where a distinction can be shown between bail applicants their individual cases can be treated differently.

Tungamirai Madzokere 1st Applicant

He is of fixed abode, and stays at Number 2358, 35^th Crescent, Glen View 1, but was arrested by the police on 31 May 2011 hiding at Palm Villa Lodge along Selous Avenue in Harare. He is a holder of a Zimbabwean passport. He is a councillor for Ward 32, Glen View. He did not explain what he was doing at the Lodge leaving the police's allegation that he was hiding to avoid arrest unchallenged. In his submissions, counsel for the applicants alleged that Olyn Madzokere and Mavis Madzokere were arrested by police as bait for the first applicant who they were looking for and were only released when the first applicant was arrested. This, though, not a lawful way of pursuing the arrest of an accused person as it interferes with the rights of innocent third parties, however, proves that the first applicant was avoiding arrest. This, coupled with the fact that he had left home and was staying at a Lodge along Selous Avenue, several kilometers from his Glen View 1 house, is proof that he is a flight risk. He has also made indications at the scene which were captured on video. This further strengthens the respondent's case against him and may cause him to abscond.

His application for bail is dismissed.

Last Tamai Maengahama 2^nd Applicant

He resides at House Number 4712, 58^th Crescent, Glen View 3, Harare. He is of fixed abode and is the owner and Director of a company called Latview Marketing. He is a National Executive Member of the MDC-(T) party. He is a holder of a Zimbabwean passport and has, on occasions, travelled outside Zimbabwe to attend conferences. It was submitted that he has no strong social connections outside this country. His assets are all in this country. He thus has interests in this country. He is firmly rooted within the court's jurisdiction and might be inclined to await the trial of his case if granted bail. Nothing was said by the State which suggests he is a flight risk. He is a man of means whose bail must be such as will induce him to stand his trial. The reason given by counsel for the applicants for setting bail at US$300= per applicant does not apply to his circumstances. Bail must be, for this applicant, set in a meaningful amount which will compel him to stand trial. Bail in the sum of US$1,000= will be appropriate in his case. He is granted bail on the following conditions:

1. That he deposits US$1,000= with the Clerk of Court, Harare Magistrate's Court.

2. That he resides at Number 4712, 58^th Crescent, Glen View 3, Harare until this matter is finalised.

3. That he reports to Glen View Police Station every Monday, Wednesday and Friday, between 6.00am and 6.00pm.

4. That he does not interfere with any State witnesses or evidence.

5. That he surrenders his passport to the Clerk of Court, at Harare Magistrate's court.

Lazarus Maengahama 3^rd Applicant

He resides at Number 4712, 58 Crescent, Glen View 3 when in Zimbabwe. He is employed by Conco Botswana a company based in Gaborone Botswana. The address given is the same as that for the second applicant. No explanation was given besides it being stated that he owns that property. He shares the same surname with the second applicant. As it is his house he might be accommodating the second applicant. Counsel for the respondent submitted that this applicant can easily go back to Botswana or further without travel documents.

In a bail application, the court must balance the interests of justice and the liberty of the accused. The fact that the applicant works in Botswana tilts the scales in favour of the interests of justice. Granting the applicant bail on the promise that he will abandon his employment in Botswana and surrender his travel documents is taking a serious risk as the applicant is most likely to abscond as no explanation has been given as to how he will survive without a job. He is experienced in travelling out of the country and living outside the country. He is going to be constantly thinking about the case which I have already said is fairly strong. He might, while waiting for his trial, succumb to the temptation to flee back to Botswana or any other country as he obviously has contacts outside the country.

His application for bail is dismissed.

Stanford Maengahama 4th Applicant

He is the third applicant's brother. He is not employed. He stays at his brother's house. He is single. He therefore has no strong attachments to Zimbabwe which would persuade him to await the trial of his case. He, in his application, said he has no connections outside Zimbabwe. This is a lie as his brother, the third applicant, works in Botswana. That is a strong and reliable contact person who will have an obvious interest in helping him once he leaves the country. The fact that he lied to the court makes it difficult for the court to believe him when he says he is prepared to stand trial.

His application for bail is dismissed.

Gabriel Shumba 5^th Applicant

He stays at House Number 2156, 34^th Crescent, Glen View 1, Harare. He is married with two children. His wife is not employed. His family is wholly dependent on him. He is self-employed selling food items. He does not have travel documents. He seems to me to be an unsophisticated applicant who may not abscond if granted bail. He is unlikely to be able to settle himself outside Zimbabwe. The Investigating Officer's affidavit does not say he did anything which tends to point at an inclination to abscond. If granted bail on stringent conditions he is likely to stand his trial. He is granted bail on the following conditions:

1. That he deposits US$300= with the Clerk of Court, Harare Magistrate's Court.

2. That he resides at House Number 2156, 34^th Crescent, Glen View 1, Harare until this matter is finalised.

3. That he reports to Glen View Police Station every Monday, Wednesday and Friday, between 6.00am and 6.00pm.

4. That he does not interfere with any State witnesses or evidence.

Phenias Nhatarikwa 6^th Applicant

He resides at Number 166, 24^th Crescent, Glen View 1, Harare. He is married with two children. He is employed by the MDC-(T) as a driver. Counsel for the applicants submitted that the State's allegation that he drove off when the deceased wanted to get into his car proves he was not involved in the attack against the deceased. He further submitted that the fact that he parked a few meters away does not get him involved in the crime charged. Counsel for the respondent submitted that the fact that people who had attacked the deceased got into his car and he drove off with them at high speed means he was aiding and abating those who had attacked and killed the deceased.

I agree with counsel for the respondent's reasoning.

In fact, the fact that he used the motor vehicle he was driving to get those who had attacked the deceased from the scene is an indication that he is likely to abscond. It was submitted, on his behalf, that he went with counsel for the appellants to Harare Central Police bringing food for those who had been arrested. This was not stated in his application so the respondent's counsel was not able to respond to it. However, that does not prove that if granted bail he may not abscond, as his going to the police station may have been due to a then belief that his involvement was not known. It is now known that the car he was driving was traced to him through CVR. He now knows he is facing a serious offence. His instincts towards fleeing from brushes with the law may have been reactivated. He is not a good candidate for bail.

His application for bail is dismissed.

Stefani Takaidzwa 7^th Applicant

He stays at House Number 3516, 266 Close, Kuwadzana 3, Harare. He is said to be self- employed, selling clothes, yet he is also alleged to be employed by the MDC-(T) as a general worker. This could be a mistake as it is later said he was arrested at MDC-(T) Head Office. He is married with two minor children. If he works at the MDC Head Office his arrest there carries no connotation as the Investigating Officer said nothing further about that arrest. It seems to me he has no means through which he can sustain himself outside Zimbabwe. He is like the other applicants whose circumstances do not make him a flight risk. To be granted bail on the following conditions:

1. That he deposits US$300= with the Clerk of Court, Harare Magistrate's Court.

2. That he resides at House Number 3516, 266 Close Kuwadzana 3, Harare until this matter is finalised.

3. That he reports to Kuwadzana Police Station every Monday, Wednesday and Friday, between 6.00am and 6.00pm.

4. That he does not interfere with any State witnesses or evidence.

5. That he surrenders his passport to the Clerk of Court at Harare Magistrate's Court.

Stanford Mangwiro 8^th Applicant

He stays at House Number 2900, Mhembwe Close, Budiriro 2, Harare. He is married with two minor children. He has no travel documents nor connections outside Zimbabwe. He is employed by Astomech Furnitures. His family and the job may act as an incentive for him not to abscond. He has, however, already shown that he is a flight risk The Investigating Officer, in paragraph 22 of his affidavit of 10 June 2011 said “he had deserted his residential address and was staying at his work place where he told some workmates that his hands were painful because of the assault he did on some police officers.” This makes him a flight risk.

His application for bail is dismissed.

Yvonne Musarurwa 9^th Applicant

She stays at Number 10788, Budiriro 5A, Harare. She is not married. She has no previous convictions and denies participating in the deceased's murder. She, according to the Investigating Officer's affidavit of 10 June 2011 was arrested at Palm Lodge, 11 Mazowe Road. This is not disputed, though the applicant's counsel contented that that does not mean she was hiding from the police. This response is clearly not of any help to this applicant's case. A serious allegation was made that she had abandoned her residence to avoid the police yet all that could be said is that that information is colourless. It certainly colours the applicant a flight risk. While there could be nothing wrong in booking oneself into a lodge under normal circumstances, there is certainly something wrong if one does so for purposes of avoiding arrest. That indicates an intention to avoid having to answer the charges. It makes her a flight risk.

Her application for bail is therefore dismissed.

Rebecca Mafikeni 10^th Applicant

She ordinarily stays at Number 13 Orkney Road, Eastlea, Harare. She is self-employed selling clothing. She is single and has no children. She has a passport which she uses to go and buy clothes for sale from outside the country. She is therefore a frequent traveller outside the country and could have contacts there who can easily help her to settle down in a foreign country. She, as a single person, with no children, and thus has no strong ties in this country which can dissuade her from absconding. She, like the 9^th applicant, had also booked herself into Palm Lodge, 11 Mazowe Road. This is not disputed, though the applicant's counsel contented that this does not mean she was hiding from the police. This response is clearly not of any help to this applicant's case. A serious allegation was made that she had abandoned her residence to avoid the police yet all that could be said is that information is colourless. It certainly colours the applicant a flight risk. While there could be nothing wrong in booking oneself into a lodge under normal circumstances, there is certainly something wrong if one does so for purposes of avoiding arrest. That indicates an intention to avoid having to answer the charges. It makes her a flight risk.

Her application for bail is therefore dismissed.

Cythia Fungai Manjoro 11^th Applicant

She stays at number 1 Harland Court, 118 Fife Avenue, Harare. She is single and has no children. She is a holder of a Zimbabwean passport. She is employed by Fintrac a company conducting business at No. 5 Premium Close, Mt Pleasant Business Park, Harare. The fact that she is gainfully employed tends to show that she may have a reason to want to stand trial on these charges. She is, however, alleged to have been driving a motor vehicle, ACA 6904, which sped off with some of the deceased's assailants from the scene. It was contented, on her behalf, that she was at church on the day in question, and that her boyfriend was driving the motor vehicle, but the State's response to that is that alibi was checked and found to be false. She was linked to the motor vehicle through CVR checks. She does not deny links with the motor vehicle.

The State's evidence is that there were police internal intelligence officers who were at the scene and saw what happened. They got the motor vehicle's number plates leading to the CVR checks. If they could see the number plates they surely could also see the driver. The speeding away, with persons who had fatally attacked police officers, indicates intention to avoid arrest on her part and those who were in her motor vehicle. She is therefore a flight risk.

Her application for bail is dismissed.

Linda Musiyamhanje 12^th Applicant

She stays at Number 50 Mharapara Street, Mufakose, Harare. She is single and has one child. She is not employed. She is a holder of a Zimbabwean passport. The Investigating Officer's affidavit does not say she did anything which makes her a flight risk. She seems to be one of those applicants who cannot abscond if granted bail on stringent conditions. She is granted bail on the following conditions:

1. That she deposits US$300= with the Clerk of Court, Harare Magistrate's Court.

2. That she resides at No. 50 Mharapara Street, Mufakose, Harare until this matter is finalised.

3. That she reports to Marimba Police Station every Monday, Wednesday and Friday, between 6.00am and 6.00pm.

4. That she does not interfere with any State witnesses or evidence.

5. That she surrenders her passport to the Clerk of Court at Harare Magistrate's Court.

Tafadzwa Billiat 13^th Applicant

He stays at Number 15 Thompson Samukange Road, Mbare National, Harare. He is married with three minor children. He is employed as a Customer Liaison Officer by a company called Kapp-Jack Trading earning a salary of US$190= per month. He has no passport or any contacts outside the country. He was arrested at his house in Mbare. There is no allegation that he attempted to avoid arrest. He seems to me to be an unsophisticated man who, if granted bail on stringent conditions, will not abscond. He is granted bail on the following conditions:

1. That he deposits US$300= with the Clerk of Court, Harare Magistrate's Court.

2. That he resides at No.15 Thompson Samukange, Mbare National, Harare until this matter is finalised.

3. That he reports to Mbare Police Station every Monday, Wednesday and Friday, between 6.00am and 6.00pm.

4. That he does not interfere with any State witnesses or evidence.

Simon Mudimu 14^th Applicant

He stays at Number 4324, 16^th Street, Glen View 3. He is self-employed. He repairs shoes and sometimes sells chicken products. He was, at the time of his arrest, being trained by Squad Security as a security guard. He is married with one child. He is a holder of a Zimbabwean passport which he is willing to surrender to the court. He has no contacts outside the country. It was submitted that he cooperated with the police when he was arrested. However, according to the Investigating Officer's affidavit he was arrested at his house during a night raid after efforts to arrest him during the day had failed. It was not contented that he resisted arrest when the police arrested him. It was also not explained whether he was aware that the police wanted to arrest him. The police's effort was not explained. That lack of detail must be resolved in his favour. He generally seems to be a suitable candidate for bail. Stringent conditions will be imposed to ensure that he stands his trial. He is granted bail on the following conditions:

1. That he deposits US$300= with the Clerk of Court, Harare Magistrate's Court.

2. That he resides at Number 4324, 16^th Street, Glen View 3, Harare until this matter is finalised.

3. That he reports to Glen View Police Station every Monday, Wednesday and Friday, between 6.00am and 6.00pm.

4. That he does not interfere with any State witnesses or evidence.

5. That he surrenders his passport to the Clerk of Court at Harare Magistrate's Court.

Dube Zwelibanze 15^th Applicant

He stays at Number 4486, 1^st Circle, Glen View 3, Harare. He is married with two minor children. He is employed as an Area Sales Manager with Power Sales earning a salary of US$500= per month. He has no strong connections outside this country. This applicant was arrested in circumstances similar to those of the 14^th applicant. Though he was arrested in a night raid, after police's efforts to arrest him during the day had failed, the reason for the failure of the police's effort was not explained leaving room for an innocent explanation for that failure. If he knew the police where after him would he, if he wanted to avoid arrest, have come to his house as he did? He must be given the benefit of the lack of clarity in the Investigating Officer's affidavit. The applicant is an employed family man who is unlikely to abandon his employment to avoid his trial. I am satisfied that he is a suitable candidate for bail. It was not indicated whether or not the applicant is a holder of travel documents. To ensure that he stands his trial it will be ordered that he should surrender his passport - in case he has a passport. He is granted bail on the following conditions:

1. That he deposits US$300= with the Clerk of Court, Harare Magistrate's Court.

2. That he resides at Number 4486, 1^st Circle, Glen View 3, Harare until this matter is finalised.

3. That he reports to Glen View Police Station every Monday, Wednesday and Friday, between 6.00am and 6.00pm.

4. That he does not interfere with any State witnesses or evidence.

5. That he surrenders his passport to the Clerk of Court at Harare Magistrate's Court.

Simon Mapanzure 16^th Applicant

He stays at Number 3, 53 Avenue, Mabelreign, Harare. He is a divorcee with 3 children. He is gainfully employed earning US$600= per month. He is a holder of a Zimbabwean passport which he is willing to surrender to the court. He has no connections outside the country and cannot, therefore, easily settle outside the country. His being a family man and being gainfully employed will be an inducement for him not to abscond but stand his trial. The Investigating Officer did not point out any indications that he might abscond. He merely said he “was arrested at his workplace after he was linked to the deceased's murder by informers.” Stringent conditions will be imposed as additional safeguards against abscondment. He is granted bail on the following conditions:

1. That he deposits US$300= with the Clerk of Court, Harare Magistrate's court.

2. That he resides at Number 3, 53 Avenue, Mabelreign, Harare until this matter is finalised.

3. That he reports to Mabelreign Police Station every Monday, Wednesday and Friday, between 6.00am and 6.00pm.

4. That he does not interfere with any State witnesses or evidence.

5. That he surrenders his passport to the Clerk of Court at Harare Magistrate's Court.

Edwin Muingiri 17^th Applicant

He stays at Number 3558, 15^th Road, Glen View 4, Harare. He is married and has two children. He is self- employed as an airtime vendor. He is a holder of a Zimbabwean passport. He has no connections with anyone outside the country. He seems to be unable to settle himself outside the country. The Investigating Officer merely mentions his being arrested at his house without any adverse indication pointing to his being a flight risk. He is therefore not a flight risk and should be granted bail on the following conditions:

1. That he deposits US$300= with the Clerk of Court, Harare Magistrate's Court.

2. That he resides at Number 3558, 15^th Road, Glen View 4, Harare until this matter is finalised.

3. That he reports to Glen View Police Station every Monday, Wednesday and Friday, between 6.00am and 6.00pm.

4. That he does not interfere with any State witnesses or evidence.

5. That he surrenders his passport to the Clerk of Court at Harare Magistrate's Court.

Augustine Tengenyika 18^th Applicant

He stays at Number 7242, Budiriro 4, Harare. He is married to two wives and has four children. He is employed by the City of Harare as a general worker earning a salary of US$150= per month. He has no passport and has no connections with anyone outside the country. The Investigating Officer merely said he was arrested “in a kombi in Budiriro 4.” That does not make him a flight risk as he was in the vicinity of his residence. Nothing further was said about his being in the commuter omnibus. His being a family man, who is employed, gives him strong roots in this country. His limited means, spread over a large family, limits his ability to settle himself in a foreign country. He is a suitable candidate for bail. He is granted bail on the following terms:

1. That he deposits US$300= with the Clerk of Court, Harare Magistrate's Court.

2. That he resides at Number 7242, Budiriro 4, Harare until this matter is finalised.

3. That he reports to Glen View Police Station every Monday, Wednesday and Friday between 6.00am and 6.00pm.

4. That he does not interfere with any State witnesses or evidence.

Francis Vambai 19^th Applicant

He stays at Number 6967, Budiriro 4, Harare. He is married with two children. He is self-employed selling chocolates. He is not a holder of a valid passport. He has no connections outside the country. The Investigating Officer did not say anything about him which indicates that he is a flight risk. He only said he was arrested in a kombi in Budiriro 4. That, as has already been said in respect on the 18^th applicant, does not make him a flight risk. He seems to me to be an unsophisticated applicant who may not abscond if granted bail. He is unlikely to be able to settle himself outside Zimbabwe. He is granted bail on the following conditions:

1. That he deposits US$300= with the Clerk of Court, Harare Magistrate's Court.

2. That he resides at Number 6967, Budiriro 4, Harare until this matter is finalised.

3. That he reports to Glen View Police Station every Monday, Wednesday and Friday between 6.00am and 6.00pm.

4. That he does not interfere with any State witnesses or evidence.

Nyamadzawo Gapara 20^th Applicant

He stays at Number 7089, Budiriro 4, Harare. He is married with three children. He is employed by Team Security, as a Security Supervisor, earning US$265= per month. He is not a holder of a valid passport but has applied for one which is yet to be paid for and issued. He, like the 18^th and 19^th applicants, was arrested in a kombi in Budiriro 4. He stays in Budiriro 4 so nothing turns on his being in a kombi near where he stays. The Investigating Officer did not point out anything he did which makes him a flight risk. He is an employed family man who cannot easily abandon his family and employment. I am satisfied that he is not a flight risk. He is granted bail on the following conditions:

1. That he deposits US$300= with the Clerk of Court, Harare Magistrate's Court.

2. That he resides at Number 7089, Budiriro 4, Harare until this matter is finalised.

3. That he reports to Glen View Police Station every Monday, Wednesday and Friday between 6.00am and 6.00pm.

4. That he does not interfere with any State witnesses or evidence.

The first applicant is a family member who lives with his family at F78 Njube, Bulawayo. He is not employed. He did not attend the MLF executive meeting of 1 March 2011 and is not eligible. This is common cause or at least beyond material dispute. The respondent, while conceding that indeed 1^st applicant did not attend the Mthwakazi Liberation Front Executive meeting where the alleged treasonous resolution was made, alleges that he was “in the vicinity” performing his security duties.  Initially, the factual basis for the charge against him was that he was found in possession of three (3) Mthwakazi Liberation Front fliers and a calendar. As alluded to above, the respondent later amended those facts to say he was actually distributing the said fliers.

The first applicant is married and has three children. He is HIV positive (he declared his status in this application). He holds a passport. He has resided in South Africa but returned in 2010.

The second applicant is a family man who lives with his family at Number 21 Chopping Road, Barham Green, Bulawayo. He is married with four children. He is a businessman and runs a construction company. He is a veteran of the war of liberation, having fought under the Zimbabwe People's Revolutionary Army (ZIPRA). He denies the treason charge. He attended the Mthwakazi Liberation Front Executive meeting of 1^st March 2011 and is the one who recorded the minutes of the meeting.  He holds a passport.

The third applicant is a family man who lives with his family at Number 18, 4^th Avenue, Woodville, Bulawayo. He is married with four children. He is a businessman running his own company. He has participated in Presidential elections before. He attended the Mthwakazi Liberation Front Executive meeting of 1^st March 2011. He has a passport….,.

The respondent further alleges that because the first applicant was staying in South Africa and has contacts there. As far as the second and third applicants are concerned, they have travelled to South Africa and Botswana for Mthwakazi Liberation Front meetings because the Mthwakazi Liberation Front President and Vice President are resident in Botswana and South Africa respectively. All these facts are alleged to indicate capacity to abscond on their part….,.

The second applicant is said to have a 1981 previous conviction for armed robbery and a pending case of attempted murder.

It is trite that in bail applications the primary question for consideration is whether the applicant will stand trial or abscond. Of equal importance, however, is whether the applicant will influence the fairness of the trial by intimidating witnesses or tampering with evidence - section 117(1) and (2) of the Criminal Procedure and Evidence Act [Chapter 9:23]; Attorney General v Phiri 1987 (2) ZLR 33 (H); S v Ndlovu 2001 (2) ZLR 261 (H); S v Biti 2002 (1) ZLR 115 (H); S v Essack 1965 (2) SA 161 (D); S v Jongwe 2002 (2) ZLR 209 (S); Aitken & Anor v Attorney General 1992 (1) ZLR 249 (S); S v Tsvangirai 2003 (1) ZLR 650 (H); and S v Gwisai and Ors Harare HCB283-8/11 (unreported).

The approach is one of striking a balance between the interest of society (i.e. the applicant should stand trial and there should be no interference with the administration of justice) and the liberty of an accused person (who, pending the outcome of his/her trial, is presumed innocent). 

I now propose to deal with the grounds raised in opposition in turn.

Seriousness of the offence

There is no doubt treason is a serious offence. This is a relevant factor. An expectation of a lengthy custodial sentence or capital punishment may be an incentive to abscond. I have to take this factor into account - S v Makamba SC30-04 and S v Biti 2002 (1) ZLR 115 (H). However, this factor has to be balanced against the apparent weaknesses in the State case highlighted above. Further, in casu, the conduct complained of comprise possession (and in the case of the first applicant, distribution) of a few fliers and calendars. There are no objective facts on the ground that any member of the public took these fliers and/or calendars seriously.

Likelihood of interference with police investigations

In casu, the only known State witnesses are the arresting police offices and the State has not shown how the applicants can interfere with such police witnesses. The averment of interference is unsubstantiated and bald.

Propensity of committing similar crimes to treason (2^nd and 3^rd applicants)

Even if this contention is well founded it is not itself not necessarily a valid reason for denying the applicants bail. In S v Tsvangirai 2003 (1) ZLR 650 (H) it was held that even though the State's fears were not totally unfounded, this could be catered for by the imposition of appropriate bail conditions.  Taking all the above factors into account I conclude that the applicants are suitable candidates for bail characterized by stringent conditions to cater for the State fears. These conditions will unfortunately limit their aspirations as in the political arena but they are necessary in the face of the serious allegations they face and their previous brushes with the law.

Accordingly, I admit all applicants to bail on the following conditions.

1. Each applicant to deposit US$2,000= with the Registrar of the High Court, Bulawayo.

2. The 1^st applicant to reside at House Number E78 Njube Township, Bulawayo until the matter is finalized.

3. The 2^nd applicant to reside at Number 21 Chopping Road, Barham Green, Bulawayo until the matter is finalized.

4. The 3^rd applicant to reside at Number 18, 4^th Avenue, Woodvale, Bulawayo until the matter is finalized.

5. Each applicant is to report at Bulawayo Central Police at CID Law and Order three times a week on Mondays, Wednesdays and Fridays between 6am and 6pm.

6. The applicants are to surrender their passports respectively to the Registrar of the High Court, Bulawayo.

7. Each applicant is not to interfere with any State witnesses or evidence.

8. Each applicant shall not leave 40 kilometres radius of Bulawayo Main Post Office without written leave of a Bulawayo magistrate.

Second, the issue of a pending similar case is only applicable to the third respondent. There is no nexus between the first and second respondents and this conduct by the third respondent.

As far as the first and second respondents are concerned, there are no reasonable prospects of success on appeal. As regards the third respondent, because of the question of the charge under the Public Order and Security Act [Chapter 11:17] there is a reasonable prospect of the Supreme Court arriving at a different judgment. There is merit in distinguishing his case from that of the other two respondents.

The main thrust of the argument made by counsel for the applicant is that one of the applicant's co-accused, Bekezela Lizile Moyo, was admitted to bail on 12 April 2011 and as such the applicant should be treated the same as his co-accused. Counsel for the applicant further submitted that it is undesirable to treat co-accused persons differently when they are facing the same charge.

Counsel for the State argued that when the court granted Bekezela Lizile Moyo bail it had been swayed by the fact that the State could not give a trial date and their co-accused persons had been transferred to Harare to stand trial on other charges. Their date of return to Bulawayo was unknown and for that reason the justice of the case demanded that Bekezela Lizile Moyo be admitted to bail.

Counsel for the State further argued that the applicant's situation is different in that the trial of his co-accused in Harare has been completed, they have been returned to Bulawayo and trial dates, being the 13^th and 14^th September 2011, have been set for the trial of the applicant and his co-accused.

When Bekezela Lizile Moyo first applied for bail in August 2010, I had denied him bail and the reasons for doing so appear in my judgment in Moyo v S HB88-10. He filed a fresh application citing a change of circumstances which I heard on 12 April 2011. In granting him bail I stated as follows:

“This matter came before me as an application for bail in August 2010. During that hearing, the State opposed bail inter alia on the basis that investigations were complete and the matter was to be allocated a trial date in a short while. In refusing the Applicant bail then I had been swayed by the fact that a trial date was imminent and that the applicant needed to concentrate on that in order to prove his innocence. Regrettably, more than 7 months have lapsed since the last bail hearing and not only has the State failed to set the matter down for trial, it has also taken the applicant's co-accused to Harare making the possibility of a trial even more unlikely. This is particularly so, as Mr Ndlovu, for the State, has pointed out that his office is not aware why the co-accused have been taken to Harare and when they are likely to come back. In my view, the lapse of time, in this case 7 months, and the patent inability of the State to point to when the applicant is likely to stand trial, amounts to fresh facts which are favourable to the applicant and militate in favour of his admission to bail.”

The present case is distinguishable from Moyo v S HB88-10 in many ways, the most important one being that the applicant has approached the court seeking bail for the first time when a trial date has been set. Indeed, his trial is only three weeks away. Surely, one would expect him to be focusing on proving his innocence at the trial instead of fighting for bail, a fight he shied away from since his arrest more than a year ago. The other factor is that the State case against the applicant is much stronger than that against Bekezela Lizile Moyo. While the only thing linking Bekezela Lizile Moyo to the robbery, other than the confessions, appears to be the telephone call he made to the complainant hours before the robbery, the applicant's weapon, a star pistol, was allegedly used in the robbery.  The same firearm, though licenced, was allegedly recovered hidden in the ceiling, a curious place to keep a firearm, of a house in Harare where the applicant did not even stay.

The present inquiry involves striking a balance between the liberty of the individual and the administration of justice. Where there is strong evidence linking the applicant for bail with the commission of the offence and it is likely that upon conviction the applicant will be sentenced to a lengthy term of incarceration, the risk of abscondment is high. S v Jongwe 2002 (2) ZLR 209 (S).

I am apprehensive that if granted bail the applicant will not stand trial. This is particularly so considering that this application has come rather late in the day when a trial date has already been set. It may well be that realizing that the day of reckoning is nigh, the applicant wants to evade justice.

The applicant is facing a charge of murder as defined in section 47 of the Criminal Law (Codification and Reform) Act [Chapter 9:23]. It is alleged that on an unknown date between 27 July and 3^rd August 2011, the applicant, with seven (7) others, struck the now deceased with a sharp object on the head and thereafter removed his tongue, brain, nose, lips and four fingers.

The application is opposed on three grounds, namely;

(a) Likelihood of abscondment;

(b) Likelihood of interference with investigations; and

(c) Likelihood of interference with State witnesses.

The applicant was initially implicated by one Nkosilathi Khumalo. She was pointed out as having masterminded the murder. The meeting at which the plan to murder the now deceased person is alleged to have taken place at her place of abode. She is the one who is alleged to have come up with the plan to hire persons to carry out the physical aspects of the plan. She is alleged to have hired two of her accomplices and one Nhlanhla Mhlanga and promised to pay them US$1,500= after the mission is accomplished. She is alleged to have hired Zibusiso Mkandla's vehicle to be used in the murder. She is said to have been the one who spoke to Zibusiso Mkandla. She is the one who is said to have hired a police detail to participate in the crime. The police detail she hired was to put on a police uniform and go to the now deceased's place of residence and pretend to place him under arrest. Although initially her role was not known to the police, she became implicated and her prominence in the crime became clearer when accomplices were arrested and other witnesses interviewed.

Key factors in this application are the nature and gravity of the offence charged and the strength of the prosecution case – S v Jongwe 2002 (2) ZLR 209 (S); S v Nichos & Anor 1997 (1) SA 263, and S v Moyo HB23-05.

In the applicant's favour is that she was not immediately arrested after the police initially interviewed her. However, as alluded to above, her alleged prominent involvement had not yet been detected at that stage. The situation has dramatically changed since then. She has now been confronted with evidence of witnesses who evince her involvement in the crime. The inducement to abscond is now present. She now knows what the others have told the police about her involvement in the crime. She now knows that it has been evinced that she is the alleged brain behind the murder. Her situation is different from her co-accused, Luvimbi, who was granted bail. The latter was only implicated by a co-accused. In the applicant's case, there are other factors such as hosting the planning meeting and hiring a vehicle from Zibusiso Mkandla. The evidence against her seems to be far more stronger than the evidence against Luvimbi. She is closely related to key witnesses like Cecilia Khumalo. There is likelihood that she will interfere with witnesses and investigations. Taking into account all the factors, cumulatively, I hold the view that she is not a suitable candidate for bail.

In casu, the applicant's role in the alleged commission of the crime needs to be carefully examined in order to come out with an equitable determination.

I agree with the applicant that the seriousness of a crime, without other factors, is not enough reason to deprive him of his liberty; regard being had to the time honoured presumption of innocence. The appellant was arrested in possession of the motor vehicle which he had forcibly taken away from the complainant whom he left behind together with his accomplice. This, no doubt, heavily implicates him and to me is enough reason to serve as an incentive for him to abscond. He is aware that he will have to explain the circumstances surrounding his possession of the said motor vehicle.

In my view, if the overwhelming evidence against him will not compel him to abscond, then nothing else will. I am aware that his accomplice has been admitted to bail by this court. However, their alleged involvement is clearly distinguishable, making him more culpable than his accomplice - at least prima facie. In my view, the applicant has more questions to answer in order to extricate himself from this alleged criminal web which he has entangled himself in. The consequences of his release on bail are too ghastly to contemplate, as they will no doubt result in his sure abscondment thereby failing to appear in court for trial.

The background of this matter is that the appellant was charged with and convicted of assault after a contested trial. He was jointly charged with one Simbarashe Tinoza. Both were sentenced to 14 months imprisonment of which 6 months imprisonment were suspended on the usual conditions of good behaviour. They noted their appeal against both conviction and sentence. They applied for bail pending appeal which was dismissed by the court a quo.

They now appealed to this Honourable Court against refusal of bail.

The appeal was not opposed in respect of Simbarashe Tinoza but opposed in respect of this appellant, Kenneth Mupamba. On 8 April 2014, bail was therefore granted in respect of Simbarashe Tinoza and I reserved ruling in respect of Kenneth Mupamba. This is now my ruling.

The appellant has argued that there are good and sufficient reasons for his success on appeal against both conviction and sentence which he advanced to the court.

Upon perusal of the record, I entirely agreed with the concession made by counsel for the respondent. It became clear and undisputed that the evidence that was led in court against Simbarashe Tinoza was insufficient to prove beyond reasonable doubt that he was present and committed the offence of assault against the complainant. It seems apparent that he was arrested because he owns a motor vehicle which is similar to the one used by the perpetrators of the assault and that the registration numbers appeared almost identical. The motor vehicle that was used by the people who committed the assault had registration numbers ACF 1835 whilst Simbarashe Tinoza's vehicle numbers were ACF 1838. Apart from the complainant, none of the other witnesses positively identified Simbarashe Tonoza as having been present. For these and other apparent reasons, there are prospects of success on appeal hence bail was granted.

However, as regards Kenneth Mupamba, his circumstances from the evidence are quite different from those of Simbarashe Tinoza. I must, however, hasten to point out that the court appreciates the need to treat alleged offenders the same way in situations where they are facing the same charges. But 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 administration of justice on the other hand…..,.

In this case, the evidence shows that Kenneth Mupamba was present at the scene of the offence. Not only that, although he said he only shouted at the complainant, all the witnesses said he appeared drunk and he assaulted the complainant. Even defence witnesses incriminated him. This was a factual issue proved beyond doubt….,.

The applicant stands convicted of a needless assault perpetrated by a group of assailants thus endangering the lives of passengers in the complainant's vehicle. The court a quo properly discounted the imposition of community service. With an assault of this nature there will be a pronounced risk that the convicted person will flee from justice if released, especially if they have no reasonable prospects of success on appeal.

I am of the considered view that the appellant's chances of success on appeal against both conviction and sentence are indeed nil and as such he should be denied bail.

At the hearing of the matter, the respondent led evidence from the current Investigating Officer, Detective Assistant Inspector George Kachidza, also stationed at CID Homicide Harare. He told the court that the first applicant was arrested by a crack team from CID Homicide after they had received a tip off from a suspected robber named Mudziye. Mudziye had been hospitalized after he was involved in a car accident. He implicated his accomplices from his hospital bed. The Investigating Officer told the court that two laptops were recovered from the first applicant's place of residence, and, that no explanation has been preferred, to date, as to how the applicant came to be in possession of those laptops. The Investigating Officer told the court that investigations are still ongoing and that no one has come forth to claim ownership of the laptops so far. No previous convictions have so far been identified in respect of the first applicant. It is common cause that he was positively identified by one of the complainants in an identification parade.

The Investigating Officer told the court that the second applicant and the fourth applicant were arrested together after a tip-off. One Tichaona Katsama, who was in police custody, received a telephone call from the second applicant who advised him that he had secured a commuter omnibus and was ready to go on 'a job'. They arranged to meet at the Budiriro 5 turnoff. The second applicant was driving the commuter omnibus, which had no licence plates, in the company of the fourth applicant. The second applicant spotted an unmarked police vehicle near to the meeting point with Tichaona Katsama, and he sped off at high speed. There was a movie style high speed chase. Warning shots were fired. The second applicant continued to flee at high speed. The second applicant was shot in the abdomen. He was subsequently positively identified by two complainants in an identification parade as being the person who robbed them. He is on an outstanding warrant of arrest for a robbery which he committed in Kwekwe. He has been on the police wanted person list since 2013. The Investigating Officer told the court that the fourth applicant was also positively identified by one complainant after he was arrested at the Budiriro 5 turnoff together with the second applicant.

The third applicant allegedly led the investigating team to the recovery of fake licence plates that the gang would use intermittently on the commuter omnibus in order to avoid detection and to evade arrest. The recovered number plates, ABP 1639, were well known to the police, who had been searching for the commuter omnibus with those numbers for some time. The applicant was arrested at his home. The Investigating Officer told the court that, on average, the police were receiving eight reports every day that offences of this nature had been committed, and that, since January 2014, about 200 (two hundred) similar offences had been committed in Harare alone. He testified that the applicants were the first group to be arrested in connection with these offences, which now represented a menace on society. Finally, the Investigating Officer told the court that, since the applicants were arrested, there have been no reports of offences of a similar nature being committed.

Under cross examination, the Investigating Officer conceded that he was not the arresting officer and that all the evidence which he had given in connection with the applicants' arrest was hearsay. He conceded that none of the applicants had given false addresses to their places of residence and that he had verified all the addresses and was satisfied that the applicants resided at those addresses. He conceded that the police set a trap at Budiriro 5 turnoff where the second and the fourth applicants were arrested, and that, the police were waiting in an unmarked vehicle. He conceded that the Request for Remand Form did not mention that two laptops and number plates for commuter omnibuses were recovered from the first and the third applicant…,.

Unfortunately, the applicant's statement in support of their application for bail is deficient in its omission of the applicants' personal circumstances. We are not told whether all of them are married, have children, are gainfully employed, own any assets, have any savings. It becomes difficult in these circumstances to assess the applicants' ties to their communities….,.

The first applicant was arrested at his home after a tip off. Two laptops were recovered at his home. No explanation has been given as to the presence of these laptops or their ownership. A reasonable explanation could have exculpated the first applicant.

The second and fourth applicants were arrested after a tip-off and a high speed chase with the police at Budiriro 5 Turnoff. No explanation was given by the second applicant as to why he sped off and refused to stop after warning shots were fired. No explanation was given by the second applicant as to why he was caught in the police dragnet after calling an alleged accomplice who was in police custody and inviting him to meet for purposes of committing robberies. The fourth applicant's attempt to pose as an innocent passenger in the commuter omnibus was simply not believable in light of the absence of number plates on the commuter omnibus, of the second applicant's phone call to the accomplice in custody, and to his positive identification by a complainant. The fourth applicant was also arrested after a tip off by an alleged accomplice and he led the police to the recovery of the number plates that the gang used intermittently to escape detection and avoid arrest. Police were on the lookout for a commuter omnibus with those licence plates. No explanation was proffered as to how the fourth applicant, also subsequently positively identified by a complainant, knew the hiding place of the number plates. It has not been suggested that the fourth applicant was abused or tortured or otherwise induced to provide this information to the police. None of the applicants denied that they knew the accomplices who were in police custody and who implicated them and assisted the police to arrest them.

The prosecution case is strong.

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 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….,.

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 section 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 v Mbaleki 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.”…,.

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.”…,.

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….,.

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 v Chimpondah 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 the 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 pages 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 a quo 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 page 8, by the court a quo, does not support these averments made on behalf of the appellants. The court a quo took into consideration:

(i) That the allegation that Accused 5 is a girlfriend of Accused 4 was not challenged.

(ii) That the totality of the facts made it impossible to rule out commission purpose.

(iii) 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.

(iv) 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.

(v) The offence is now prevalent and there is need to protect society from being preyed upon by commuter bus operators.

(vi) 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. Everyday 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 conductors (mahwindi). It is like playing the game of Russian Roulette; one can never tell whether the driver or bus conductor is a person of good character or of ill-repute. One cannot tell if the driver and bus conductor are merely play-acting, 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 trial 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 a quo. 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 and; that it only relied on the seriousness of the offence alone in refusing to admit the appellants to bail pending trial. 

In granting the applicant leave to appeal, the learned Judge, correctly in my view, found that there was a possibility that this Court might reasonably arrive at a determination that the respondent may commit a similar offence whilst on bail contrary to the learned judge's conclusion.

The learned Judge drew a distinction between the respondent and his two co-accused because of the two further allegations against him, which did not relate to his co-accused, namely;

(a) That some fliers were recovered from him; and

(b) That the respondent had a pending case under the Public Order and Security Act (POSA).

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….,.

Counsel for the respondent conceded that the applicant's accomplices, Craig Benjamin Musasa and Roy Fungai Mafunga, were granted bail pending trial on account of the fact that the evidence linking these two to the offences is very weak, moreso as they are only implicated in one of the three counts unlike the applicant implicated in all the three (3) counts.

Counsel for the respondent submitted that it is not in the interest of justice to admit the applicant to bail….,.

I do not share the view that the State case is weak in respect of the applicant. A satisfactory explanation has been given as to why the applicant's two accomplices were admitted to bail. They face one Count and the evidence linking them to that Count is weak.

This is not the case with the applicant.

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….,.

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.