Lovemore Mpofu v The State

### Preamble
1
HB 226/22
HCB 249/22
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LOVEMORE MPOFU

Versus

THE STATE

IN THE HIGH COURT OF ZIMBABWE

DUBE-BANDA J

BULAWAYO 23 AUGUST 2022 & 1 SEPTEMBER 2022

Appeal against refusal of bail pending trial

A. Sibanda for the appellant

K.M. Guveya for the respondent

DUBE-BANDA J:

Introduction

This is a bail appeal against the decision of the Magistrates’ Court sitting in Gweru given on the 25th June 2022. The appellant is charged with two counts of contravening section 114 of the criminal Law (Codification and Reform) Act [Chapter 9:23 it being alleged that on the 11th June 2022 he stole six cattle belonging to the 1st complainant and three cattle belonging to the 2nd complainant and drove them to his homestead. It is alleged further that the cattle were positively identified by the two complainants.

The appellant contends that he did not make a bail application at the Magistrate’s Court. At his initial appearance it was the public prosecutor who merely submitted that the appellant’s release on bail was opposed. The magistrate refused to release the appellant on the basis that he was facing serious charges which upon conviction will attract a custodial sentence and therefore he was a flight risk.

Aggrieved by the refusal to release him on bail the appellant now appeals to this court against the decision of the Magistrates’ Court. He prays that the decision of the court a quo refusing to release him on bail be set aside and he be released pending trial.

The decision of the magistrate to refuse to release the appellant on bail is attacked on the flowing grounds:

The court a quo erred in denying appellant bail pending trial on the basis that he will abscond trial regard being had to the seriousness of the offence when the presumption of innocence still applies in appellant’s favour.

The court a quo erred at law by failing to find that the State had not given compelling reasons why bail should be refused.

The court a quo failed to give the appellant and opportunity to respond to the bar allegations that the appellant was a flight risk and thus denied the appellant the opportunity to be heard.

The parties’ submissions

In his bail statement the appellant avers that he denies the charges levelled against him. He says that on the 24th June 2022 at approximately 0630 hours three police officers arrived at his homestead and alleged that he had stolen some cattle. These are the police officers who are complainants in who are complainants in the three counts of improper use of a fire arm as defined in section 27(b) of the Firearms Act [Chapter 10:09] where it is alleged that the appellant unlawfully pointed a firearm at them. Regarding the Firearms Act counts the appellant was released on bail, however the release was of no moment as he remained in custody because of these two counts of stock theft subject to this application. The appellant denies that the stolen cattle were at his kraal. He denies that they were recovered at his kraal. He avers that he has a defence to the charges and the State case against him is weak.

In his bail statement and also in oral submissions it was contended that it was not true that the appellant was facing other charges as stated in the Form 242. CR23/03/19 is said to be a very old matter that has not been taken to court. It was contended that in CR35/10/22 the public prosecutor refused to place the appellant on remand because there was no evidence against him. It was contended further that the appellant did not abscond in the light of these two cases and there is no basis to suggest that he will abscond now. It was submitted that he is not a holder of a passport and there is no way he can abscond.

Mr Sibanda counsel for the appellant submitted that in terms of section 50(1) (d) of the Constitution of Zimbabwe it is no longer discretional on the part of the court to grant bail. If there are no compelling reasons an accused must be released on bail pending trial. Counsel argued that the State failed to show that there were compelling reasons justifying the continued detention of the appellant. The court magistrate was criticised for finding that the appellant was a flight risk in the absence of evidence that he had tried to abscond.

Mr Guveya counsel for the State made rather limited submissions. He contended that the decision of the magistrate was correct. Counsel focused primarily on the reasons which the magistrate has furnished and asserts that the learned magistrate exercised his discretion properly. His contention was that a balance has to be struck between the liberty of the individual and the safeguarding of the administration of justice. Counsel submitted that the record shows that the appellant was afforded an opportunity to respond to the submissions made by the State and he confirmed them. It was submitted further that the magistrate was satisfied that compelling reasons existed to justify the refusal to release the appellant on bail. It was contended that the appellant failed to proffer a tentative defence in the light of strong allegations and evidence against him. It was contended further that the appellant is facing a serious offence and will likely face a prison term if convicted and this might induce him to abscond. The interests of justice require that the appellant be deprived of his liberty and that he should not be granted bail. Counsel argued that the magistrate's decision should not be set aside.

The legal principles

The basis upon which this court may interfere with the decision of the magistrate is limited. In this regard the court is called upon to determine whether the learned magistrate misdirected himself in reaching his decision to refuse to grant the appellant bail. However, it is not open to this court to replace the decision of the magistrate with that of its own merely because it differs with his decision. See:  S v Barber 1979 (4) SA 218 (D) 220E-H, Chimaiwache v The State SC 18/13.

In Chimaiwache v The State SC 18/13 the court held that the granting of bail involves an exercise of discretion by the court of first instance. The appeal court would only interfere with the decision of the lower court if it committed an irregularity or exercised its discretion so unreasonably or improperly as to vitiate the decision. The record of proceedings must show that an error had been made in the exercise of discretion: either that the court acted on a wrong principle, allowed extraneous or irrelevant considerations to affect its decision or made mistakes of fact or failed to take into consideration relevant matters in the determination of the question before it.

The following pronouncement in S v Barber 1979 (4) SA 218 (D) at 220 E-G is apposite:

It is well known that the powers of this Court are largely limited where the matter comes before it on appeal and not as a substantive application for bail. This Court has to be persuaded that the magistrate exercised his discretion wrongly. Accordingly, although this Court may have a different view, it should not substitute its own view for that of the magistrate because that would be an unfair interference with the magistrate’s exercise of his discretion. I think it should be stressed that, no matter what this Court’s own views are, the real question is whether it can be said that the magistrate who had the discretion to grant bail exercised that discretion wrongly.

This approach has been underscored in a number of decisions. See: S v Madamombe SC 117/21; S v Malunjwa 2003(1) ZLR 275(H); S v Ruturi HH 23-03. In order to interfere on appeal it is necessary for this court to find that the lower court misdirected itself in some material way in relation to fact or law. If such misdirection is established, the appeal court is at large to consider whether bail ought, in the particular circumstances to have been granted or refused. In the absence of a finding that the lower court misdirected itself the appeal cannot succeed.

It is on the basis of these legal principles that this bail appeal must be viewed and considered.

The application of the law to the facts

The first ground of appeal is that the magistrate erred in denying appellant bail on the basis that he was a flight risk because of the seriousness of the offence when the presumption of innocence still applies in appellant’s favour. I do not find myself in agreement with the contentions of the appellant in so far as this ground of appeal is concerned. My view is that the presumption of innocence does not preclude the court from finding that an accused is a flight risk. In fact section 115C as read with section 117 of the Criminal Procedure and Evidence Act [Chapter 9:07] enjoins a court determining the release of an accused on bail to consider whether such an accused was a flight risk or not.  The law makes it a requirement for the court to find that an accused was a flight risk or not notwithstanding the presumption of innocence.

The position is that in deciding whether flight is likely and in the absence of concrete evidence of a predisposition to abscond, account must be taken of a number of factors which common experience have shown might influence a person either to stand trial or abscond. See: Prof. Feltoe Magistrates’ Handbook (Revised 2021) 77. When assessing the risk of an accused for absconding before trial, the court will be guided amongst others by the following: the gravity of the charges and the severity of penalties which would be likely to be imposed if convicted; the apparent strength or weakness of the State case; if he was previously released on bail, whether he breached the bail conditions; and the assurance given that he intends to stand trial. See: S v Jongwe 2002(2) ZLR 209(S), S v Chiadwa 1988(2) ZLR 19 (S), Aitken & Anor v A-G 1992(1) ZLR 249 (S).

The magistrate refused to release the appellant on the basis that he was facing serious charges which upon conviction will attract a custodial sentence and therefore he was a flight risk.  This was a finding anchored on the material before the magistrate.  It is on that basis that I take the view that the first ground of appeal has no merit.

The second ground of appeal is that the magistrate erred at law by failing to find that the State had not given compelling reasons why bail should be refused. Counsel criticises the magistrate for concluding that there was a grave risk of the appellant absconding. He says the magistrate did not have evidence before him to justify this conclusion. This ground of appeal must be juxtaposed with the submissions and facts that were before the magistrate when he made the decision to refuse the appellant bail.

At the initial appearance of the appellant the magistrate had the following material before him to assist in the determination whether there were any compelling reasons to refuse to release the appellant on bail pending trial, i.e. the Form 242 and the submissions made by the public prosecutor. At the hearing before the magistrate the public prosecutor submitted that bail was opposed on the basis that there was overwhelming evidence against the appellant and he was a flight risk and that he had received information from the investigating officer that the appellant was violent at the time of arrest. It was submitted further that the appellant was on a wanted list for some time and that he was also wanted for shooting someone in Kwekwe. He was said to be danger to society. The appellant conceded that he was on a warrant of arrest but he did not know of it.

In the Form 242 regarding the evidence linking the appellant to the commission of the offence it was stated that a total of five cattle were recovered from the appellant’s homestead, three for the first complainant and two for the second complainant. The cattle were positively identified by the complainants. The appellant had tempered with the horns and earmarks of the cattle. It was also stated that the appellant had pending cases i.e. stock theft Gweru Rural CR 35/01/22 and attempted murder CR 27/03/19. It was stated further that he was violent and he used a firearm at the police officers who arrested him.

It is trite that an appeal is decided within the four corners of the record. I say this because Mr Sibanda raised a lot of issues which were not before the magistrate when he decided whether to release the appellant on bail or not. Counsel also submitted that the record was incomplete.  I take the view that if the record was incomplete counsel should have known the procedure and the relief to seek and from which court. On the facts of this matter I deal with the record as it is and no more.

It will be unfair to criticise the magistrate and find that there was a misdirection on the basis of facts that were not before him at the time he made his decision. To recap what was before the magistrate was Form 242 and the submissions made by the public prosecutor. This appeal must turn on only what was before the magistrate and no more.

It is evident that the magistrate evaluated the facts properly and accorded due weight to the probative value of all the relevant facts. It is clear that the facts presented by the state were not challenged by the appellant and consequently stood uncontradicted. I do not agree that the decision by the magistrate to refuse the appellant's bail was capriciously taken. It is apparent from the reasons, though brief that the magistrate had taken account of the relevant factors and given due consideration to each. Mr Sibanda’s submission that the magistrate has misconceived the test that is applicable and erred at law by failing to find that there were no compelling reasons to refuse bail are in the circumstances not well-founded. It follows that this ground of appeal must fail.

The third ground of appeal is that the magistrate failed to give the appellant an opportunity to respond to the submissions that he was a flight risk and thus denied him the opportunity to be heard. This contention is not borne out by the record. The record shows that the appellant addressed the court and conceded that he was on a warrant of arrest, but was not aware that such a warrant had been issued. This ground of appeal has no merit.

For completeness I turn to consider the other issues raised by Mr Sibanda. The criticism that the appellant did not apply for bail at the magistrate’s court has no merit. I say so because an accused has a constitutional right to bail, subject to the requirement that bail may be refused if it is in the interest of justice to do so. An accused has first, a procedural right to approach a court and apply to be released on bail. Second an accused has a substantive right to have the question of bail determined, and third a remedy to be released when the interest of justice so permit. See: S v Mbele 1996 1 SACR 212 (W) 235j-236b. My view is that if at the initial appearance an accused does not apply for bail the court has a duty to inquire into the issue of release on bail pending trial. This is what the magistrate did and I find nothing irregular about this procedure. In fact I take the view that it is the correct thing to do. The magistrate found on the basis of the facts before him that it was not in the interest of justice to release the appellant on bail pending trial.

The criticism that the magistrate did not appreciate that it was the State that had the onus to show that there were compelling reasons to refuse to release the appellant on bail has no merit. There is nothing on record that shows that the magistrate misconstrued the seat of the onus. I say so because the magistrate anchored his decision on the submissions made by the public prosecutor and Form 242. He was satisfied that there were compelling reasons to refuse to release the appellant on bail pending trial.

Disposition

The basis upon which this Court may interfere with the decision of the magistrate is limited. It is not open to this court to replace the decision of the magistrate with that of its own merely because it differs with his decision. The granting of bail involves an exercise of discretion by the court of first instance. It is not for this court sitting as an appeal court merely to set aside the decision of the magistrate because it does not agree with it. There must be a misdirection. I am satisfied there was no misdirection in this matter and the manner in which the magistrate exercised his discretion cannot be faulted.

On a consideration of all the factors I find no fault in how the magistrate considered the appellant's bail inquiry.  In particular, I am not persuaded that the magistrate’s reasoning and conclusions are wrong. On the contrary, I am of the view that the learned magistrate considered all the factors relevant to the appellant's bail inquiry. The appeal must fail.

In the result, I make the following order:

The appeal against the refusal of the Magistrates’ Court to release appellant on bail pending trial be and is hereby dismissed.

Mhaka Attorneys appellant’s legal practitioners

National Prosecuting Authority, respondent’s legal practitioners