Elvis Masvusvu & 5 Ors v The State

### Preamble
1
HB 250/22
HCB 344/2; HCB 334/22 & HCB 346/22
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ELVIS MASVUSVU

And

DONOVAN TATENDA MUKWASHU

And

ISAAC HARUKWANI

And

LOVEMORE TAPURA

And

ADMIRE TAPURA

And

AMON MAZHAWIDZA

Versus

THE STATE

IN THE HIGH COURT OF ZIMBABWE

MAKONESE J

BULAWAYO 4 & 6 OCTOBER 2022

Bail Application

T. Runganga for 1st applicant

T. Dzipe for 2nd applicant

T. Tashaya for 3rd to 6th applicants

Ms T. Mujokoro for the respondent

MAKONESE J:	The applicants are all facing allegations of armed robbery in contravention of section 126 (1) of the Criminal Law (Codification and Reform) Act (Chapter 9:23).  This is an application for bail pending trial brought by the applicants on the premise that they are suitable candidates for bail. The state opposes the application. Three bail applications have been consolidated and dealt with as one matter.  The facts giving rise to the allegations against applicants relate to the same facts and subject matter.  The state argues that there is a strong prima facie case against all the applicants and that there are compelling reasons for the denial of bail pending trial.

Background facts

The State alleges that on the night of the 26th of August 2022 and at Abion Mine, Mount Regal, Fort Rixon, the applicants acting in concert with 10 other accused persons who are still at large, threatened the complainants with firearms and assaulted them with logs, swords, axes and other weapons before forcibly taking 200kgs of pregnant gold carbons contained in metal cylindrical columns.  Applicants were identified by witnesses.  Upon their arrest the applicants led the police to the recovery of the cylindrical metal containers robbed from the complainants.  The motor vehicle used in the commission of the offence a Toyota Hiace registration number AFS 9925 was recovered and traced to Donovan Tatenda Mukwashi who was used to convey the applicants to the mine. Donovan transported his co- accused with their loot after the robbery. All the applicants deny any involvement in the robbery and contend that they have been falsely and wrongly implicated.

Submissions by Elvis Masvusvu

This applicant submits that he was arrested as a result of confessions and implications by his co-accused persons.  Applicant contends that the confessions are inadmissible as they were obtained through undue influence.  Applicant submits that first to be arrested was Donovan’s father who implicated his son in the use of the Toyota Hiace motor vehicle.  It is not in dispute that Donovan transported the accused persons to the mine where the robbery was committed.  It is not denied that while the robbery was under way Donovan waited in his motor vehicle and drove from the scene after the robbery with the gold carbons.  Elvis Masvusvu gave a statement to the police where he narrates that he was recruited by one Kenias Chimbandi who told him that there was a job to be done.  Since his own commuter omnibus was not in good condition they roped in Donovan.  Whilst at a mine at Fort Rixon Elvis and Donovan remained in the motor vehicle.  After a while the co-accused persons returned carrying gold carbon contained in metal cylindrical columns.  Elvis and his co-accused drove back to Kwekwe.  They processed the gold carbons at Steward Elusion plant.  This applicant avers in his warned and cautioned statement that he made certain indications to the police.  Elvis avers that the warned and cautioned statement was extracted through force and undue influence.

Submissions by Donovan Tatenda Mukwashi

This applicant admits that he ferried his co-accused to a mine at Fort Rixon.  He submits that he was hired and was paid US$300 for his services.  The applicant avers that he took no part in the robbery and remained in the motor vehicle.  He contends that he was not aware and did not suspect that a robbery was taking place.  Donovan states that he has been wrongly implicated in this matter.  He contends that he is linked to this offence by confessions made by his co-accused.

Submissions by Isaac Harukwani, Lovemore Tapura, Admire Tapura and Amon Mazhawidza

These applicants deny that they were involved in the robbery.  They submit that they were nowhere near the scene of the crime and never associated with any of the alleged accomplices.  Applicants submit that the motor vehicle mentioned in the state papers does not belong to any one of them. They have no knowledge of the owner of this motor vehicle.  Applicants deny making any indications to the police.  With regards to the spanners and axes recovered from their co-accused, the applicants deny any knowledge of these tools and weapons.  Applicants aver that they were seriously assaulted and tortured by the police and forced into making admissions.  Applicants argue that the legal position is that they bear no onus to discharge the grounds of opposition laid down by the State.  Applicants aver that they have no desire to abscond if granted bail pending trial.  They aver that they are proper candidates for bail.

Submission by the respondent

The state strenuously opposes bail in this matter.  The State submits that upon his arrest Elvis Masvusvu attempted to hide from the police when they went to his home. He tried to hide in a ceiling just before his arrest.  This applicant led to the recovery of the metal cylindrical columns and gold carbons.  The state contends that there is a strong prima facie case against the applicant.  As regards the rest of the applicants the state submits that they gave detailed warned and cautioned statements wherein they explain their respective roles in the commission of the offence.  Isaac Harukwani, Lovemore Tapura and Amon Mazhawidza provide detailed accounts of what transpired on the day of the alleged robbery.  The state submits that all the applicants admit to the allegations and admit acting in common purpose.  The details contained in the warned and cautioned statements are details which could only be known by persons who were present during the commission of the offence.  The suggestion by defence counsel that the warned and cautioned statements were authored by the police has no factual basis.  In any event, in the statements, the applicants repeatedly implicate each other in the commission of the robbery.  Donovan Mukwashi states in his statement that on Thursday 25th August 2022 at around 10:00 am he was phoned by Elvis Masvusvu advising him that there were people who wanted to be taken to Renco to ferry sacks of gold ore.  Donovan narrates that he collected one Vassa and Ketso and they met the rest of the crew at Ascot Infill in Gweru.  They fueled Donovan’s motor vehicle before proceedings to Amaveni in Kwekwe were more people were collected.  When they got to Gweru, Ketso indicated that they should not go to Renco Mine but instead go to Shangani.  At a place at Fort Rixon Donovan was told to stop the motor vehicle.  The applicants and other co-accused who are still at large disembarked from the motor vehicle.  Those who got out were armed with axes, spanners, swords and chains.  After the alleged robbery, the co- accused returned with cylindrical metal containers with gold carbons. Donovan drove back to Kwekwe.  He claims he was given US$300 for his services.  It is not necessary to repeat the versions of the other applicants as contained in their warned and cautioned statements.  The account given by Donovan implicates all the applicants, who in turn implicate each other.

Analysis of the law

It is settled law that an applicant in a bail application should be granted bail pending his trial unless there are compelling reasons for his continued detention.  Section 117 (a) of the Criminal Procedure and Evidence Act (Chapter 9:07) provides that a person who is in custody in respect of an offence shall be entitled to be released on bail, unless the court determines that it is in the interests of justice that he or she should be detained in custody.

In S v Jongwe, SC-62-02, the court indicated that where the state has a strong prima facie case against an accused this may be a motivation for him to abscond.  In the present case there are strong and compelling reasons for denying the applicants bail pending trial.  All the applicants are linked to the offence.  All the applicants are placed at the scene by their own admissions.  The applicants have proffered bare denials to the allegations against them.  An applicant in a bail application who seeks to mislead the court is not a suitable candidate for bail, see S v Musonza HB-33-19.

The court must in all bail applications, consider the interests of the administration of justice as a paramount consideration.  The weapons used in the robbery were recovered from a motor vehicle used by one of the applicants.  There is a strong prima facie case against all the applicants.  There are compelling reasons for the denial of bail.

In the result, the application for bail pending trial in respect of all the applicants is hereby dismissed.

Tanaka Law Chambers, 1st applicant’s legal practitioners

Morris-Davies & Company, 2nd applicant’s legal practitioners

Sengweni Legal Practice, 3rd to 6th applicants’ legal practitioners

National Prosecuting Authority, respondent’s legal practitioners