MAWADZE J: Both applicants are being charged with two
counts of robbery committed in aggravating circumstances as defined in s 126 of
the Criminal Law (Codification and Reform Act) [Cap 9:23].
The applicants are denying the
allegations and any involvement in the commission of the alleged offences. Both applicants were arraigned before in
Karoi Magistrate on 19 April 2010 and they have been in custody to date, a
period of about four months. The
applicants are seeking bail pending trial since they are facing specified
offences. The application is opposed.
The request for remand form 242
outlines in brief the allegations being made against both applicants which can
be summarized as follows:-
It is alleged
that on 8 April 2010 at about 0200 hours the two applicants in the company of
two other unknown accomplices who are still at large proceeded to Tengwe
Shopping Centre in the Makonde area armed with a firearm. It is alleged that two of them were in army
uniform. In count 1 it is alleged that they approached a shop
belonging to Bangura and confronted two little girls Precious Bangura aged 15
years and Poshia Bangura aged 8 years.
The two girls were the shop keepers selling liquor and other groceries
and were about to close the shop when they were confronted by the applicants and
the alleged accomplices who demanded cash threatening to shoot the two
girls. They forcibly took US$37.00
consisting of the day's whole takings and all groceries in the shop. They proceeded to lock the shop from outside
leaving the two girls trapped inside the shop.
It is alleged that thereafter they proceeded in count 2 to Magomo shop at the same business centre
still armed. Zivanai Guvheya the shop keeper
had retired to bed inside the shop when the applicants and the accomplices
stormed into the shop demanding cash. They
forcibly took US$48.00 and various groceries.
In both counts the applicants and the accomplices took property valued
at US$278.00 of which nothing was recovered.
The applicants submitted that they
are proper candidates for bail. The
first applicant William Charamba is 30 years old and a traditional healer
(popularly known in shona as tsikamutanda).
He resides with his family at No 407 Chikonohono Township in
Chinhoyi. The second applicant Clever
Madzanga is 38 years old and resides at plot No 9 Parental Farm in Tengwe area
where he is engaged in farming
The following reasons were given by
both applicants on why they should both be admitted to bail pending trial;
a)
that they are denying the allegations and that the
presumption of innocence operates in their favour.
b)
that the state case (against them) is very weak as
investigations which are now complete failed to link both of them in any manner
to the commission of both offences as none of the applicants was found in
possession of the stolen property or the fire arm allegedly used in the
commission of the offences.
c)
that they have not exhibited any inclination to
interfere with witnesses or investigations and are willing to abide by any bail
conditions imposed by the court.
d)
that both applicants are family men of fixed abode
without any travel documents hence would not jeopardize the interests or
justice by absconding as chances of them being convicted of these offences are
virtually non existent.
e)
that the claim that they will commit further similar
offences if released on bail is unfounded as both applicants have no such
history and are not facing any other charges.
f)
that investigations were due to be completed by 10 May,
some two months ago and that applicants have been in custody for about 4
months.
The
respondent strongly opposed this application.
An affidavit filed by Detective
Sergeant Collen
Zimbudzi outlines the reasons why applicants should not be admitted to
bail. In brief the respondent submitted
the following;
- that applicants are facing very serious offences of
robbery committed in aggravating circumstances as they were allegedly
armed. Consequently applicants if
convicted would be visited with lengthy custodial sentences as the maximum
penalty provided for is life imprisonment.
In the circumstances the risk of absconding is very high.
- that the fire arm used in the commission of the
offences was not recovered and that the two other accomplices are at
large. The fear therefore is that
both applicants would use the firearm to commit further offences and team
up with the alleged accomplices still at large.
- that the state case is very strong and chances of
securing a conviction in respect of both applicants are very high as both
applicants were identified by the complainants.
- that applicants are likely to interfere with the
interests of justice if released on bail as the stolen property was not
recovered.
- that the victims in count 1 are very young children
who are susceptible to interference and intimidation by applicants if
released on bail.
- that the applicants have been uncooperative with the
Police investigations because upon
arrest they implicated two serving members of the Zimbabwe National
Army based at 2:3 Infantry battalion one Bigboy Chihambakwe and Calvin
Zivanai as their accomplices.
However further investigations revealed that both applicants were
falsely implicating the two soldiers.
The applicants are therefore viewed as being keen to put police a
wild goose chase and in the process conceal the real identity of their
accomplices for sinister motives.
Both applicants have however denied implicating any person. In fact they submitted that such a
suggestion in weird as they themselves are denying the charges.
This court has pronounced on a number of occasions the factors to be considered
in an application for bail pending trial and how those factors should be
assessed See: Attorney
General v Phiri 1987 (2) ZLR 33 (H);
S v Aitken 1992 (2) ZLR 84 (S); S v Ndlovu 2001 (2) ZLR 261 (H).
These factors include inter alia
the seriousness of the offence, the likelihood of absconding, the likelihood of
interfering with the evidence or to commit further offences among other
factors. The court should, in assessing
those factors strike a balance between the interest of justice and the liberty
of the accused. The onus is on the
applicant to show on a balance of probability that she /he is a suitable
candidate for bail.
While it is accepted that the applicants are facing serious offences,
that on its own would not persuade me not to admit applicants to bail. See
S v Hussey 1991 (2) ZLR 189
(S) and S v Tsvangirai HH
100-03. The likelihood of absconding can
be curtailed by appropriate bail conditions.
The applicants have been in custody for about 4 months and I believe that
investigations should be complete by now.
The failure by the police to recover the weapon allegedly used in the
commission of the offence or to apprehend the alleged accomplices can not be a basis
to deny applicants bail. Bail by its
nature is not punitive and continued incarceration of the applicants would not
in my view help police investigations. I
am not persuaded, in the obscene of objective facts that the fear by the state
that applicants would commit further offences is well founded.
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 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 first applicant because there was some light they were using
in the shop (a torch) and that the torch at some stage flashed on to first
applicant's face. She said she was able
to clearly see first applicant's face and that he was a person very familiar to
her.
Precious Bangura said first applicant at all material times remained
behind the other 3 assailants hiding his face but she was able to see first
applicant and identify him. Prima facie there is evidence linking
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 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;
1)
That the second applicant deposits the sum of US$100.00
with the Clerk of Court Karoi.
2)
That the second applicant shall reside at Plot No 9
Parental Farm, Tengwe until the matter is finalized.
3)
That the second applicant shall report once every
Friday at Tengwe Police Station between 6am and 6pm.
4)
The second applicant should not interfere with
witnesses in the matter.
Mapaya and Partners, applicants' legal practitioners
Attorney General's Office, respondent's legal practitioners
