Innocent Nkoma v The State

### Preamble
1
HB 157/21
HCB 244/21
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INNOCENT NKOMA

Versus

THE STATE

IN THE HIGH COURT OF ZIMBABWE

DUBE-BANDA J

BULAWAYO 19 AUGUST 2021 & 23 AUGUST 2021

Application for bail pending trial

L. Chimwande, for the applicant

T.M. Myathi, for the respondent

DUBE-BANDA J: This is an application for bail pending trial. Applicant is being charged with the crime of robbery as defined in section 126 of the Criminal Law [Codification and Reform] Act [Chapter 9:23]. It being alleged that on the 26 March 2021, applicant in the company of other six accomplices used violence, or threats of immediate violence upon one Zenzo Proud Nkomo to relinquish control over 200 kgs of pregnant gold carbons and one 303 rifle, the property of Lone Mine (complainant).

This application was filed on the 11 August 2021. It was placed before me on the 16 August 2021, and I directed that it be set down for 17 August 2021. At the commencement of the hearing it became clear that Mr Chimwanda, counsel for the applicant had not familiarised himself with the statutory framework upon which this matter turns. The applicant is facing a crime referred to in Part 1 of Schedule 3 of the Criminal Procedure and Evidence Act [Chapter 9:07], being robbery involving the use of a firearm. In terms of section 115C (2) (a)(ii) (A) of the Criminal Procedure and Evidence Act [Chapter 9:07] (CP&E Act) applicant bears the burden of showing, on a balance of probabilities, that it is in the interests of justice that he be released on bail. It then follows that the bar for granting bail in the crime of robbery where there has been a use of a firearm is lifted a bit higher by the legislature. This is what the applicant has to contend with. For him to discharge such an onus, he must adduce evidence before court. There was no evidence before court, but only submissions contained in the bail statement. On realising the futility of the route taken, Mr Chimwanda on reflection, requested for a postponement to enable the filing of an affidavit of evidence. The postponement was granted and the matter was subsequently argued on 19 August 2021.

Applicant then filed an affidavit in support of his bail application. He avers that he resides at number 917 Eastlea, Zvishavane. He is married with two minor children. He is self-employed as a vendor. On hearing that he was being sought by the police, he communicated with them and an agreement was made that he meets them at Chicken Inn in Zvishavane business centre. He met the police at the appointed place where upon he was arrested. He did not try to escape arrest. He contends that the only suggestion that links him to the committal of this offence is that his Samsung phone was found at the scene of crime. His evidence is that before the alleged commission of this offence he used to share an apartment with the 1st accused (Ngonidzashe Msipa). He left his phone charging in 1st accused’s motor vehicle, which vehicle was used in the commission of the crime. He neither participated in the commission of the offence nor does he know the other the other five co-accused persons. He was surprised to hear that the 1st accused’s motor vehicle was used in the commission of this offence. Again he says 1st accused person recovered his 303 rifle, recovered his moto vehicle and has been released on bail.

In its written submission respondent made a concession that there are no compelling reasons to refuse applicant bail pending trial. The contention is that there is nothing to suggest that the police had difficulties in arresting the applicant or that he showered an inclination to abscond or that he attempted to interfere with police investigations. Applicant is of fixed and is willing to abide to reporting conditions. Further it is contended by respondent that applicant has also given an explanation of how his cell phone could have got to the scene of crime. Again it is contended that the owner of the vehicle which was allegedly used in the commission of the offence was granted bail by this court under cover of case number HCB 98/21. Again respondent argues that another co-accused Tawuya Honde was also granted bail by this court under cover of case number HCB 146/21. There is nothing that is very peculiar about the applicant’s circumstances which warrants him being treated difficulty.

In his oral submissions Mr Nyathi, counsel for the respondent submitted that applicant has given a reasonable explanation why his cell phone that links him to the commission of this crime was found at the scene of crime. It is contended that minus his cell phone being found at the crime scene, there is nothing else that links him to the commission of the crime. In answer to the police allegation that applicant provided information that led to the arrests of his other co-accused, Mr Nyathi submitted that applicant informed the police that he left his cell phone in the motor vehicle, which then led to the arrests of the other co-accused persons. Again it is argued that his co-accused have been admitted to bail. In conclusion Mr Nyathi conceded that the state case is weak as against the applicant and he has discharged the burden of showing that it is in the interests of justice that he be released on bail pending trial.

A court hearing a bail application must express a balanced judgment taking into account the factors mentioned in the empowering statutory provisions and the jurisprudence developed by the courts over years. In essence the principles and considerations underlying bail is that no one should remain locked up without good reason. Section 115C (2) (a)(ii) (A) CP&E Act places a burden upon the applicant to show the court by way of evidence that it is in the interests of justice that he be released on bail. In other words the applicant has to prove on a balance of probabilities that it is in the interests of justice that he be released on bail. What is required is that the court consider all relevant factors and determine whether individually or cumulatively they warrant a finding that it is in the interests of justice to release applicant on bail.

In his affidavit opposing the release of the applicant on bail, the investigating officer makes the following averments: that applicant is aware of the gravity of the offence and the penalty that might be meted out on him upon conviction. It is said this might induce him to abscond and evade trial. Furthermore it is contended that applicant is likely to interfere with witnesses since the other witnesses are very popular to him. It is said he is a flight risk given that his address is yet to be verified. Finally, it is averred that the pistols used in the commission of the offence have not been recovered so if granted bail he may end up tempering with them.

In the evaluation of the relative strength of the State's case in a bail application, a court must caution itself against making a provisional finding of guilt or innocence and turning the hearing into a dress rehearsal for the trial. See: S v Viljoen 2002 (2) SACR 550 (SCA) para 25. The evidence linking applicant to this crime is that his cell phone was found at the scene of crime. He contends that because of his cell phone the police tracked and found him, he then gave information that he had left his phone in first accused’s motor vehicle. This information then led to the arrest of the other accused persons. The applicant contends that the state case is at its weakest against him. The respondent concedes that there is no strong prima facie case against the applicant. Where a bail applicant has established a defence which has reasonable prospects of success at the trial, this is a factor favouring bail. See generally S v Mohammed 1999 (2) SACR 507 (C).

The investigating officer contends that applicant is a flight risk. The uncontroverted evidence before court is that applicant communicated with the police and he availed himself at the appointed place whereupon he was arrested. He did not resist arrest. He has not shown any disposition to abscond. Respondent confirms applicant’s version. The contention that applicant is a flight risk is a mere speculation by the investigating officer which has no basis in evidence. Again the investigating officer contends that if released on bail applicant is likely to interfere with witnesses since the other witnesses are very popular to him. In our law the refusal to grant an accused bail shall be in the interests of justice if it is established that there is a likelihood that if released on bail, he will attempt to influence or intimidate witnesses or will attempt to conceal or destroy evidence. There must be a likelihood or reasonable possibility not speculation. In casu the facts and the evidence do not show any likelihood or reasonable possibility of interference with witnesses. It is mere a speculation. Again there is a contention by the investigating officer that the pistols used in the commission of the offence have not yet been recovered. In general this might be a factor to consider in refusing to release an accused on bail. However each case must be determined on its own merits. In casu it would not be in the interests of justice to refuse to release the accused on bail for this reason.

Applicant contends that the owner of the motor vehicle allegedly used in the commission of the offence has himself been released on bail pending trial. On the facts of this case, this is an important consideration in favour of granting applicant bail. The uncontroverted evidence before court is that applicant is connected to this case by his cell phone that he left in first accused’s motor vehicle. Now that the owner of the vehicle has been released on bail,  surely so should be applicant. I take the view that applicant has shown by adducing evidence that he is similarly situated with the released first accused. Applicant must also be released on bail pending trial.

Applicant is facing a serious charge of robbery, where a fire arm was used to subdue the complaint. It is trite that the seriousness of the offence charged standing alone cannot be a ground to refuse to release an applicant to bail pending trial. This is so because no matter the seriousness of the offence the presumption of innocence still operates in favour of the applicant. There must be something more than the mere seriousness of the offence for the court to refuse to admit an accused to bail. See: S v Acheson 1991 (2) SA 805 Nm. The courts should always grant bail where possible and should lean in favour of the liberty of the accused person provided that the interests of justice will not be prejudiced. See: S v Smith 1969 (4) SA 175 (N) 177E –F.

In determining whether applicant should be released on bail pending trial, I have considered all factors that weigh in his favour as against those that weigh in favour of the State. I have put these factors in a judicial scale and I have come to the conclusion that it is in the interest of justice to release the applicant on bail pending his trial. He has discharged the burden on him of showing that it is in the interests of justice that he be released on bail pending trial.  Again respondent made a concession both in the written submissions and in oral argument that applicant is a good candidate for admission to bail pending trial. I agree.

Disposition

In the result, I grant the following order:

The applicant is released on bail on the following conditions:

That he deposits an amount of RTGS $10 000.00 (ten thousand dollars) to the Registrar of the High Court, Bulawayo.

That he resides at number 917 Eastlea, Zvishavane until the finalisation of this matter.

That he does not interfere with state witnesses and/or police investigations in connection with this matter.

That he reports at Zvishavane Police Station every Monday and Friday between 6 am and 6 pm.

It is so ordered.

Mudenda Attorneys, applicant’s legal practitioners

National Prosecuting Authority, respondent’s legal practitioners