Lungile Tshuma v The State

### Preamble
1
HB 149/19
HCB 150/19
---------


LUNGILE TSHUMA

Versus

THE STATE

IN THE HIGH COURT OF ZIMBABWE

TAKUVA J

BULAWAYO 17 JUNE & 10 OCTOBER 2019

Criminal Appeal

A. Ndebele for the appellant

N. Ndlovu for the respondent

TAKUVA J:	This is an appeal against refusal of bail pending trial by a magistrate.  The appeal is made in terms of sections 121 (b) and 121 (2) (b) of the Criminal Procedure and Evidence Act (Chapter 9:07) (the Act).

The facts

The Appellant, a self confessed cross border transporter who has been frequenting South Africa for the past ten (10) years was charged with contravening section 60A (3) (a) (b) of the Electricity Act (Chapter 13:19). The section states,

“Any person who without lawful cause, the proof whereof shall lie on him or her, receives or takes into possession of any material used in connection with the generation, transmission, distribution or supply of electricity -

knowing that it has been stolen or

realising that there is a risk or possibility that it has been stolen;

shall be guilty of an offence and if there are no special circumstances peculiar to the case … be liable to imprisonment for a period of not less than ten years.”

It is the State’s case that on 25th of April 2019 at number 7947/50 Sizinda, Bulawayo, the applicant was in the company of two unknown males burning copper conductors in his back yard.  His neighbour peeped over the durawall and observed the appellant burning copper wires, cutting it with a bolt cutter into smaller pieces and using a hammer to flatten the copper.  Out of curiosity the neighbour requested to see a sample and when it was brought, he alerted his tenant one Mudhe Dube a police officer leading to applicant’s arrest.  The other two male suspects had disappeared.  Small cut pieces of copper weighing 195,7kg were recovered from the appellant’s house.

Appellant applied for bail pending trial at the Magistrates’ Court.  The application was premised on the grounds that since the applicant will not abscond or interfere with state witnesses, his admission to bail is not likely to undermine the proper administration of justice.  It was also contended that the state’s prima facie case against the appellant is very weak and that he has a very strong defence in that when he was arrested he had just arrived from Silobela and had nothing to do with the copper which the 2 gentlemen were burning.  The police, surprisingly, according to the appellant let these two men go scot free.  Finally, he claimed not to have had legal possession of the copper although he had physical possession.

The state opposed the application and called the investigating officer to take the stand.  He confirmed in his viva voce evidence that 195,7kg of copper wire was recovered from the appellant’s house and that he faces a serious crime that carries a mandatory minimum sentence of 10 years.  He also expressed fear that appellant was likely to abscond since he is a cross border transporter with friends in South Africa.  Further he argued that if granted bail the appellant was likely to interfere with state witnesses two of whom he had attempted to bribe to avoid arrest.

The court a quo dismissed the appellant’s bail application.  In its ruling, the court reasoned as follows:

“The circumstances of the case according to the state outline are that applicant and two unknown men were seen by the state witness (his neighbour) burning some copper conductors cutting them into smaller pieces and flattening them with a hammer.  This was at accused person’s backyard.  Applicant would like to convince the court that he had nothing to do with this copper, he just returned from his rural home and found these two men with their copper in his backyard.  This explanation does not seem to hold much weight.  The state has a very strong case against the applicant.”

In assessing the risk of abscondment the court said, “The applicant is a cross border transporter who has been frequenting South Africa for the past 10 years.  In fact he drives a vehicle with South African registration numbers.  It goes without saying that he has friends and is well connected in South Africa.  Therefore, removing himself from the jurisdiction of the courts would not be a hustle for him.  Though the applicant sought to argue that he lost his travelling documents last month, the court takes judicial notice of the porous nature of our borders.  It would not be out of span for a man who has been crossing the same border for 10 years as a transporter to do so without documents.  Though the above factors do not in isolation form good ground to deny applicant bail, when put together they make a very strong case on the risk to abscond by the applicant.”

The court also found that a propensity to interfere with state witnesses has already been established through the evidence of Mudhe Dube and Simbarashe Dzingisai who are both appellant’s neighbours.  The court found the two witnesses to be credible.  As regards the legal principles, the court relied on S v Makamba SC-30-04 and S v Jongwe 2002 (2) ZLR 209 (S).  It then expressed itself thus;

“The state argued that the appellant is facing a very serious charge whereupon conviction he faces a minimum mandatory sentence of 10 years.  It goes without saying that the criminal hallmark that an accused is presumed innocent until proven guilty still obtains.  Bail is not meant to be a punishment to an individual facing allegations albeit serious.  The seriousness of the offence on its own cannot be good ground for denying applicant his right to liberty.”

Grounds of appeal

Appellant relies on the following grounds of appeal;

The magistrate erred and misdirected himself in holding that the allegations are serious to “incentivise” the appellant to abscond.

The magistrate erred and misdirected himself in holding that since the appellant has been a cross border transporter for 10 years he is likely to abscond through our porous borders.

The court a quo erred and misdirected itself in holding that since the copper wire was found in his backyard then appellant had the legal possession of the same.

The court a quo erred and misdirected itself in finding that the state case is strong against the appellant to motivate him to abscond.

The court a quo erred and misdirected itself in concluding that appellant will interfere or has shown a propensity to interfere with witnesses.

All these grounds of appeal are totally devoid of merit and this is why.  The investigating officer confirmed that 195,7 kilo grammes of copper wire was recovered from the appellant’s house.  It was his view that the police have gathered sufficient evidence which would most likely result in a conviction.  As a result, the investigating officer raised fears that with the strength of the state case coupled with the very strong ties the appellant has in South Africa, the likelihood to abscond was high.  Such a conclusion can hardly be considered a misdirection in view of the fact that it is common cause that the appellant frequents South Africa as a cross border transporter and that he drives a South African registered vehicle.  It was also common cause that the appellant had been in the business for a period of around 10 years thus establishing strong ties with South Africa.

As regards the propensity to interfere with state witnesses the court a quo properly accepted the investigating officer’s evidence.  He was a credible witness who specifically referred to the witnesses’ statements particularly par 7 of the statement of Simbarashe Dzingai who said; “Accused person offered me R1 000 for me not to report the matter.”  He also referred to par 5 on Mudhe Dube’s statement where he says; “Accused offered us R1 000 not to report, he kept increasing the money up to R5 000 when we refused.”  I find appellant’s submission that a police officer can never be bribed, shocking to say the least.

The court a quo’s finding that the appellant does not have a good defence is proper in that the appellant admitted that he “”might have had actual or physical possession but no legal possession”.  He claims that he was not the owner of the copper alleging that it belonged to “two gentlemen” whose identity he has chosen to keep a secret.  Further, he does not explain why these men would burn and cut copper wires at his house.  Also, he does not dispute that he was with them when they were burning and cutting copper wires and that he carried a sample to show Simbarashe his neighbour.  What is glaring from the appellant’s appeal and the record of proceedings is the lack of a plausible defence.  In this regard I fully associate myself with Mr Ndlovu’s submission that, “The state has advanced a very strong case.    With no defence, the chances of a conviction are very high.  This will likely induce the appellant to abscond.”

In my view, the court a quo’s approach in handling this application demonstrates its full appreciation of the relevant legal principles that govern such applications.  The court a quo’s finding that appellant is not a proper candidate for bail is beyond reproach.

Accordingly, the appeal is devoid of merit and is hereby dismissed with no order as to costs.

Mathonsi Ncube Law Chambers, appellant’s legal practitioners

National Prosecuting Authority, state’s legal practitioners