Joseph Phiri & Admire Makuvadze & Delight Choga v The State

### Preamble
1
HB 70/22
HCB 22/22
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JOSEPH PHIRI

And

ADMIRE MAKUVADZE

And

DELIGHT CHOGA

Versus

THE STATE

IN THE HIGH COURT OF ZIMBABWE

MAKONESE J

BULAWAYO 9 & 17 MARCH 2022

Bail Pending Appeal

C. Chigomere, for the applicant

T. Muduma for respondent

MAKONESE J:	The applicants were charged and convicted of robbery as defined in section 126 (2) of the Criminal Law Codification and Reform Act (Chapter 9:23) by a Regional Magistrate sitting at Gwanda on 28th October 2021.  Applicants were each sentenced to 10 years imprisonment of which 2 years were suspended for 5 years on the usual conditions of future good conduct.  Dissatisfied with both conviction and sentence applicants filed an appeal with this court.  The applicants now make an application for bail pending appeal.  The application is opposed by the state.

Background facts

The case as presented by the state  the court a quo is that on 12th of March 2021 and at New Eclipse Mine, Shangani, the applicants with one Cuthbert Gumani, who is now deceased, and two others at large, hatched a plan to rob the complainant’s mine of gold carbons.  It was alleged that the plan to rob the mine was leaked to the police who then laid an ambush close to the mine premises.  At around midnight the applicants and their accomplices are alleged to have arrived at the mine in a black Mercedes Benz registration number AEI 8104 and parked at the shops at Shangani.  Cuthbert Gumani, Handsome Ndlovu and Simbarashe Mhlanga entered the mine premises and proceeded to the carbon room.  The applicants remained outside the mine.  A scuffle ensued during the robbery.  Cuthbert Gumani was shot dead by the mine owner Bitone Ncube.  The gang escaped.  2nd and 3rd applicants were arrested while seated in the Mercedes Benz motor vehicle at Shangani Business Centre.  The applicants vehemently denied the allegations of robbery and averred that they had been told that there was work at the mine by Cuthbert Gumani.  The applicants denied that they were part of the robbery plot and were wrongly convicted.  The trial magistrate concluded that the state had proved its case beyond reasonable doubt and duly convicted the applicants.

Grounds of appeal

In their grounds of appeal the applicants raise the following issues:

The court a quo erred by convicting the accused persons on the basis of contradictory evidence adduced by the state.

The court a quo erred by convicting 2nd and 3rd applicants on the basis of common purpose when the evidence adduced established that they were not at the scene of the crime.

The court a quo erred by relying on suspect evidence which could not sustain proof beyond reasonable doubt.

As against sentence, the applicants aver that the sentence is manifestly excessive so as to induce a sense of shock.

Basis of the application

Applicants contend that it is in the interests of justice that they be admitted to bail.  It is submitted on behalf of the applicants that their appeal carries bright prospects of success.  Applicants aver that the trial magistrate misdirected herself when he convicted the applicants on the basis of circumstantial evidence.  Further, applicants contend that the fact of the trial court conceded to have been proved warranting the conviction were not proven.

Response by the state

The state submits that the appeal carries no prospects of success on appeal.  The state contends that there is a risk of abscondment if the applicants are granted bail pending appeal.  The presumption of innocence no longer operates in favour of the applicants and the onus is on the applicants to show that they are suitable candidates for bail.  The state avers that the magistrate in the court a quo correctly convicted the applicants and that the conviction is unassailable.

Prospects of success

The major consideration in an application for bail pending appeal is the prospects of success.  The trial court based its conviction on circumstantial evidence.  The 2nd and 3rd applicants were arrested in a motor vehicle at Shangani Business Centre and not at the crime scene.  2nd and 3rd applicants were arrested solely because they drove Cuthbert Gumani and 1st applicant to Shangani.  The evidence that was proffered by the police officers who orchestrated the ambush differs on how they identified 2nd and 3rd applicants.  It is trite law that for circumstantial evidence to sustain a conviction is must be complete and incapable of explanation by any other hypothesis other than that of the guilt of the accused but should be not be consistent with its innocence.  See: S v Shoniwa 1987 (1) ZLR 213 (SC)

A perusal of the record indicates that the trial magistrate came to the conclusion that 2nd and 3rd applicants were involved in the armed robbery on the basis that a pistol was found in the motor vehicle where 2nd and 3rd applicants were found seated.  No effort was made by the trial court to link the 2nd and 3rd applicants to the scene of the crime.  There is no evidence linking the applicants to the planning of the robbery.  There was mention of a cyber-report that had been prepared to link the applicants to the robbery but was never produced and placed before the court.  Of concern is that there are gaps in the evidence of the evidence of the 1st state witness, LAST NDLOVU and the 2nd state witness, BITONE NCUBE.  These two witnesses’ evidence had contradictions on the placement of 1st applicant.  The 1st witness testified that he had lied to the court by indicating that 1st applicant entered the carbon room during the course of the robbery.  The 2nd state witness claimed that 1st applicant was in the carbon room.  The principle, falsus in umo, fiscus in omnibus, applies on the facts of this case.  This principle simply means that, “false in one thing, false in everything”.  The common law principle lays down the principle that a witness who testifies falsely about one matter is not at all credible to testify about any other matter.

What comes out of a reading of the record of the court a quo is that the police officers, being well trained and professional could have prevented the death of Cuthbert Gumani, who died at the hands of the second state witness.  There remained a lingering question of whether or not the alleged armed robbery was not a cover up for the death of Cuthbert Gumani. That is not a matter before this court. I shall not comment further on that issue.

In S v Jekiseni HB-168-08, the court held that:

“What has become the accepted position of circumstantial evidence can be traced back to the position as enunciated by WATERMEYER JA in the case of R v Blom 1939 AD 188 at pages 202-203 where the learned judges of appeal summed up the position by referring to two cardinal rules of logic as follows:

The inference sought to be drawn must be consistent with all the proved facts, if it is not then the inference cannot be drawn.

The proved facts should be such that they exclude every reasonable inference from then save the one to be drawn.  If they do not exclude other reasonable inference, then there must be doubt whether the inference sought to be drawn is correct.”

See also S v Makanyanga 1996 (2) ZLR 231 (H)

It is my view that there are gaps in the evidence of the state witnesses.  There are reasonable prospects of success against the conviction in respect of 2nd and 3rd applicants.

Risk of abscondment

The state made the assertion that there is a risk that applicants may abscond of granted bail pending appeal.  The applicants contend that they harbour no intention of absconding from justice.  The applicants have not demonstrated any ability or willingness to evade justice.  The risk of adscondment can be minimized by the imposition of stringent bail conditions.  I am satisfied that no facts have been placed before that court to indicate that applicants have attempted to flee the jurisdiction of this conduct.  For that reason this court may not therefore accept without proof that the risk of abscondment exists.  As regards 1st applicant, overwhelming evidence was led indicating that he took part in the robbery.

Disposition

An analysis of the evidence presented in the court a quo reveals that the appeal is not entirely hopeless.  The applicants are not required to re-argue their case, but to indicate that their appeal carries reasonable prospects of success.  See; S v Williams 1980 ZLR 466 (A) at 468.  The risk of abscondment has been alleged.  It has not been shown to exist even in the slightest degree.

In the result, the application is granted and the following order is made:

The 1st applicant’s application be and is hereby dismissed.

2nd and 3rd applicants be and are hereby admitted to bail pending the finalization of the appeal.

The 2nd and 3rd applicants are each ordered to deposit the sum of RTGS$10 000,00 with the Registrar, High Court, Bulawayo.

The 2nd and 3rd applicants are ordered to report at Zimbabwe Republic Police Kwe Kwe Central once every Friday, every fortnight between the hours of 6am and 6pm.

The 2nd applicant shall continue residing at house 111/12 Mbizo, Kwekwe until the appeal is finalized.

The 3rd applicant shall continue residing at house 2126/15, Mbizo Kwekwe until the appeal is finalized.

Mutatu & Partners, applicants’ legal practitioners

National Prosecuting Authority, respondent’s legal practitioners