Jerry Matumbu v The State

### Preamble
1
HB 309/20
HCB 366/20
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JERRY MATUMBU

Versus

THE STATE

IN THE HIGH COURT OF ZIMBABWE

DUBE-BANDA J

BULAWAYO 15 DECEMBER 2020 AND 5 JANUARY 2021

Application for bail pending appeal

G. Sibanda, for the applicant

B. Gundani, for the respondent

DUBE-BANDA J:	This is an application for bail pending appeal. The applicant was arraigned before the Regional Magistrate’s Court, sitting in Beitbridge, on a charge of robbery in contravention section 126 of the Criminal Law (Codification and Reform) Act [Chapter 9:23]. The allegations against him are briefly as follows: in that on the 19 July 2020, applicant used violence or threats of immediate violence and forcibly took cash amounting to ZAR 14 000.00; a Huwei Y9 blue in colour IMEI number 860673040578786; a Sonny Xperia black in colour IMEI numbers 352562100128050 / 357751107509595, being the property of Kurureni Mukwena. Applicant pleaded not guilty, and after a protracted trial, he was convicted and sentenced to 11 years imprisonment of which 3 years were suspended on the usual conditions.

Aggrieved by both conviction and sentence, applicant noted an appeal to this court and such appeal is still pending under cover of case number HCA 108/20.  Applicant now seeks to be admitted to bail pending the finalisation of the appeal. The conviction is attacked on three grounds and the sentence on one ground which are all set-out in the notice of appeal.  The grounds upon which applicant seeks to be released on bail pending appeal are set out in his statement in support of this application. In his written application, applicant contends that he has prospects of success on appeal, because his guilt was not proved beyond a reasonable doubt. In particular he avers as follows:

There is a material departure from the allegations as laid out in the state outline and charge sheet and what came out as evidence which led to his conviction.

The trial court did not show the nexus between the accused person and the allegations laid against him.

No evidence was led from the investigating officer or arresting detail as to what led to the apprehension of the applicant and how he is linked to the offence, no exhibits linking him to the offence were produced.

The state relied on the evidence of Thembani, which did not point out peculiar features and description of the vehicle that made him to be sure of the vehicle that he was chasing after considering that it was dark and on a dusty road.

Seeing two cars disembarking from the road, approaching where a robbery was taking place does not mean the vehicles were connected to the robbery.

The court made assumptions and concluded that the accused was an accomplice and waited with the get away car yet there is no evidence led to support that. Considering that the applicant denied ever being at the scene of the robbery or anywhere near, the complainant and his wife also confirmed that he was not among the robbers who invaded them.

It is not clear if the accused person was in the vehicles that were seen disembarking from the road heading towards the complainant’s homestead. Also, that it is the same vehicle that was found parked or presummably dumped 15 km away except the description that witness Thembani was chasing after a blue Honda Fit. All is based on assumptions.

From the evidence adduced there is no direct link between the applicant and the offence. The state went at pains through witness Thembani to try and allege that the  accused person was the one who disembarked from the road and went towards the complainant’s homestead and that he suddenly drove away after seeing the witness reversing. If that be accepted it does not prove that this particular vehicle is linked to the offence and was part of the armed robbery.

An analysis of all the evidence led by the state witnesses’ shows that there are too many discrepancies. With this evidence, it is humbly submitted that it was unsafe for the court a quo to convict the accused person. The onus was on the state to prove its case beyond a reasonable doubt, failure to do so the accused person entitled to his acquittal.

The application is not opposed. In its written submissions filed with this court, respondent avers that:

Thembani describes almost a movie style chase on a dusty road at 100 km/h.  One would want to imagine the amount of dusty that would rise at that speed, whether it would allow one to see what’s ahead or even be able to drive and get closer to the other vehicle in front.

The question of the proper identity of the car which was chased becomes an issue.

The other issue is that Thembani alleges that when he drove to the complainant’s homestead these cars that he later chased after were not there he only saw them turning on the road as he was reversing and the robbery was in progress. The question which begs an answer is how one links these cars with the robbers and the robbery which was in progress. It appears the link is very remote and rather speculative.

Applicant denies that his vehicle had contact with that of Thembani and both cars were never produced as exhibits to show the points of contact and probably even some remnants of paint on both vehicles could have proven that this was indeed the vehicle.

It is common cause that applicant’s vehicle was vandalised but Thembani distances himself from the damage, he only admits removing wheels and to an extent that corroborates applicant’s defence that he decided to escape when he saw people vandalising his car after he had gone to relieve himself.

There is a grey area which remains on what witnesses allege was recovered in applicants’ vehicle as no exhibits were produced.

It appears the question as to whether the applicant was part of the robbers or it was an issue of mistaken identity of the vehicle remains unanswered. It is not out of the ordinary that taxi drivers are hired by people they do not know in fact that is the most common thing to happen.

At the commencement of the hearing, I asked Mr Sibanda, counsel for the applicant to make oral submissions in support of the application. He was content to merely submit that the respondent is conceding that applicant has prospects of success on appeal, and therefore he is a good candidate to be admitted to bail pending appeal. It became apparent that counsel had not read the record at all, (he is not the counsel who prepared the application)he was merely running with the concession made by counsel for the state, as if such a concession by the state is decisive. This court has said it ad infinitum, that a concession by the state in not decisive. The jurisprudence in this jurisdiction shows that this court is not bound by the concession made by the respondent. The court does not merely-rubber stamp the position of the State. The grant or refusal of bail is a judicial function. It is the court that admits, or refuses to admit an accused to bail, it must therefore be satisfied that the concession put forward by the State, factors into the equation the law on bail and the particular facts of the case. The court must be satisfied that the concession has been properly made. Representations made by the State, important as they might be, form part of the mosaic that the court has to consider in the determination of the matter. Such a concession cannot be “the be all and end all.” See: Misheck Manyuchi & Others versus The State HB 81/20. Again, section 117 (5) of the Criminal Procedure and Evidence Act [ Chapter 9: 07], provides that notwithstanding the fact that the prosecution does not oppose the granting of bail, the court has the duty to weigh up the personal interests of the accused against the interests of justice as contemplated in subsection (4). It is time legal practitioners take note of this position, and stop coming to court only for the purpose of mimicking that the state has made a concession.

Mr Gundani, state counsel, merely advised the court that he had nothing more to add, he stood by the concession made in the respondent’s response. His submission is that applicant has a fighting chance on appeal.

An application for bail pending appeal is made in terms of section 123 (b) (ii) of the Criminal Procedure and Evidence Act, [Chapter 9:07].  Section 115 C of the Act provides that:-

(2) Where an accused person who is in custody in respect of an offence applies to be admitted to bail-

(a) ………………….

(b) After he or she has been convicted of the offence, he or she shall bear the burden of showing, on a balance of probabilities, that it is in the interests of justice for him or her to be released on bail. (My emphasis).

It will be noted that s 115 C (2) of the Criminal Procedure and Evidence Act [chapter 9:07], saddles a convict with the onus of showing on a balance of probabilities that it is in the interests of justice for him to be released on bail at this stage. As was highlighted in Manyange v The State HH 1-2003, there is a clear distinction between the principles governing the grant of bail pending trial and those relating to bail pending appeal. In the former situation, the presumption of innocence, which resides within the constitutionally guaranteed right to liberty, operates in favour of granting bail unless there are positive reasons for refusal. In the latter situation, on the other hand, the presumption of innocence is inoperative because the accused is a convicted and sentenced offender. The accused must go further than showing that he has prospects of success on appeal. He must establish that there are positive grounds for granting bail and that the grant will not endanger the interests of justice.  See:  S v Gumbura SC 349/14.

In considering whether it is in the interests of justice to release the appellants on bail pending appeal, the court will be guided by the following principles: prospects of success on appeal; likelihood of abscondment in the light of the gravity of the offence and the sentence imposed; likely delay before the appeal is heard and the right of an individual to liberty. See: S v Dzawo 1998 (1) ZLR 536; S v Bennet 1985 (2) ZLR 205 (HC); S v Ncube & Ors HB 04-03. The court has to factor in all the relevant considerations, and determine whether individually and / or cumulatively they constitute circumstances which would qualify to admit a convicted and sentenced person to bail. It can be said that it would not be in the interests of justice to deny bail pending appeal to an individual who has demonstrated prospects of success on appeal. See: S v Kilpin1978 RLR 282. A person who is able to demonstrate on a balance of probabilities that his appeal enjoys prospects of success is unlikely to abscond and would rather present himself to clear his name. Such person’s right to liberty should be given effect to, this safeguards against the risk of having an otherwise innocent person languish in prison in respect of a case for which he might end up being cleared by the appeal court leading to an ‘empty victory.’

In an application for bail pending appeal against conviction and sentence, absence of prospects of success on appeal may justify refusal of bail. See: S v Beer 1986 (2) SA 307 (SE). Admitting to bail a person who is unable to show a reasonably arguable case or prospects of success on appeal poses a risk to the interests of justice. Such a person may be refused bail at this stage merely because he or she would not have discharged the onus as required by section 115C of the Criminal Procedure and Evidence Act, of showing that it is in the interests of justice for him to be released on bail.

The test to be applied in this regard is relatively uncomplicated: is the appeal “reasonably arguable and not manifestly doomed to failure”? See: S v Gumbura SC 349/14; State v Hudson 1996 (1) SACR 431 (W). This court is alive to the fact that it is not deciding the appeal itself, because that would be a dispute for another day, but deciding bail pending appeal. Notwithstanding this, for this court to decide whether there are prospects of success on appeal, it has to look at the totality of the record. In light of the facts of this case and the legal principles, I now consider whether applicant has discharged the onus on him of showing that it is in the interests of justice that he be released on bail pending appeal.

The evidence shows that the complainant was robbed of cash and items described in the charge sheet. The armed robbery was executed by a number of individuals. The question which the appeal court in HCA 180/20 will have to answer is whether the applicant was one of the armed robbers. The complaint told the trial court that the applicant was the driver of the getaway car, he was waiting to ferry the loot. After the robbers were disturbed, he drove away, and one Thembani is said to have given chase, at some point applicant abandoned the car and fled on foot. In cross-examination the complaint was asked; who communicated with who? His answer was, the applicant disclosed after his arrest that his colleagues were communicating. It was put to the witness that the applicant never narrated anything, the complainant answered that the applicant “took us to the point where he dropped the robbers and we saw the footprints.” This evidence against the applicant was elicited in cross examination, it is trite that such evidence is admissible. See: S v Bosch 1949 (1) SA 548 (A). This evidence locates the applicant at the scene of crime.

The complainant’s wife, testified before the trial court that she saw a vehicle lighting up their homestead, and Thembani pursued this vehicle. On her way from reporting the offence at the police station, she saw the applicant after he was apprehended, it being said he was the driver of the gateway vehicle. She testified that she asked the applicant why he wanted to take their money, her evidence is that the applicant was apologetic and said “it happened.”  This evidence, despite the fact that applicant was represented by counsel, was not challenged in cross examination. The appeal court might find that it corroborates the evidence of the complainant and Thembani, and also connects the applicant to the armed robbery.

Thembani testified before the trial court, he said approximately at 1 a.m, when the robbery was afoot at complainant’s place, two small cars pulled up to the gate. They quickly made a U-turn and drove away, heading towards Beitbridge. He pursued them driving his car, the silver car was at the front, and it escaped. He caught up with the one driven by the applicant. At some point the applicant stopped the car and ran on foot. As the applicant fled on foot, the witness saw that he was wearing a work suit, which had reflectors. The witness and one Moses approached the car, and removed the rear wheels. The applicant left the car idling and the ignition keys on. In the car they were three cell phones, dagga and a machete. They took these to the police. The witness telephoned one Munhombe and advised him that there were criminals in the area. The applicant was apprehended by a group of villagers including one Kathutshelo Sibanda. He was arrested around 4 a.m. He was still wearing a work suit seen by Thembani. When applicant saw the vehicle of the villagers, he left the road and started running. He tried to hide by lying flat. He told the villagers that he was hired by people. In his defence he told the trial court that he is a taxi driver and was hired by people he did not know. He left the car on the side of the road to relieve himself in the bush. When he returned that is when he saw people damaging his car, and he ran away. It is at night, applicant goes to the bush to relief himself, and leaves the car idling and the ignition keys on!

I hold the view that the concession by the state has not been properly taken. The fear of convicting an otherwise innocent person should not be allowed to displace the exercise of common sense.  See: R v J 1966 (1) SA 88 (SRA). The law would fail to protect the community if it admitted fanciful possibilities to deflect the course of justice. On the record, applicant has no prospects of success on appeal against conviction.

1st appellant appeals the sentence of the trial court. It is contended in the written statement that applicant is a first offender and the trial court did not give effect to this phenomenon. In considering whether this aspect of the appeal has prospects of success, I factor into the equation the fact that in every appeal against sentence the court hearing the appeal should be guided by the principle that punishment is pre-eminently a matter for the discretion of the trial court. The appeal court should be careful not to erode such discretion, hence the further principle that the sentence should be altered only if the discretion had not been judicially or properly exercised. See: S v Malgas 2001(1) SACR 469 (SCA) 2001(2) SA 1222; 2001(3) ALL SA 220.

Applicant was convicted of armed robbery. This is a very serious offence. The appeal court in HCA 180/20, may well find that the mitigating factors in his favour pale into insignificance when consideration is given to the nature of the crime. In deciding this case, I also take as a factor that the applicant has been convicted of a serious offence and that in the event his appeal against conviction fails, he cannot easily avoid a prison term.

In consideration of the facts and submissions in support and against the granting of bail, viewed individually and holistically, I take the view that applicant did not discharge the onus resting upon him of showing that it would be in the interests of justice to release him on bail at this stage. In State v Tengende & Ors 1987 ZLR 445, the court held that the proper approach in applications for bail pending appeal is that in the absence of positive grounds for granting bail it will be refused.  Applicant has not proffered any positive grounds for allowing him to proceed on bail.  In my view, the prospect of a prison term, coupled with his fresh experience of post-trial incarceration, affords abundant incentive for him to abscond.  See: S v Gumbura SC 349/14.

Finally, on the evidence on record, I take the view that applicant has no prospects of success on appeal against both conviction and sentence.  The prospects of success and the possibility of abscondment are interconnected. See:S v Myers 1991 (1) SACR 383 (C). The less likely the prospects of success, the more the inducement there is on the applicant to abscond.  In the circumstances, there is a real likelihood that applicant will be tempted to abscond and not await to serve the prison term at the conclusion of the appeal. Therefore, his application for bail pending appeal must fail.

Disposition

In the result, I order as follows: the application for bail is refused and applicant shall remain in custody.

Legal Aid Directorate, applicant’s legal practitioners

Prosecutor-General’s Office, respondent’s legal practitioners