Peter Zenzo Ngwenya v The State

### Preamble
1
HB 111.20
HCB 151/20
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PETER ZENZO NGWENYA

Versus

THE STATE

IN THE HIGH COURT OF ZIMBABWE

MAKONESE J

BULAWAYO 27 MAY 2020 AND 11 JUNE 2020

Bail Application

N Mlala, for the state

Jaravaza, for the state

MAKONESE J:		On the 5th of May 2020 the applicant was arrested on allegations of robbery in contravention of section 126 of the Criminal Law Codification and Reform Act (Chapter 9:23).  Applicant appeared on an initial remand on the 7th of May 2020.  He was remanded in custody and is currently lodged at Khami Prison.  The state opposes the application for bail.  Applicant denies the allegations against him and contends that he was nowhere near the crime scene on the day of the robbery.

The allegations against the applicant as gleaned from the charge sheet are t…  On 8th January 2020 and at around 0240 hrs applicant in the company of his accomplices who are presently in remand prison for other robbery cases, and other persons still at large proceeded to E 326 Njube Township, Bulawayo armed with firearms, matchetes and an axe.  Once at that residence, the applicant and his associates forced open to gain entry into the house.  Once inside the house the applicant and his colleagues viciously attacked the complainant and her son with matchetes and an axe, at the same time demanding money.  The complainant Kuda Savanhu complied and gave the assailants cash amounting to US$200, Z$ 3 400 Bond and R300.  The applicant and his accomplices fled the scene and disappeared into the darkness.  The complainant’s son sustained head injuries.  He was attacked with an axe twice on the head.

On the second count the state alleges that on 30th October 2019 and at 1900 hrs the applicant in the company of his accomplices went to the complainant’s residence at 11 Cliburn Crescent, Morningside, Bulawayo armed with matchetes, an axe and a firearm.  The applicant and his associates gained entry into the house through the kitchen door.  Once inside the residence they ordered the complainants to lie down robbing them of US 39 346, R118 742118 840, a Huawei cellphone, a Microsoft cellphone, a power bank and a Nissan Blue Bird motor vehicle.  The vehicle was found abandoned at Skittle Inn on the outskirts of the city.

In opposing bail the state has filed a sworn statement by the Investigating Officer in this case.  The state argues strongly that the accused is a flight risk.  He faces serious charges.  He is likely to interfere with witnesses.  If convicted on these charges applicant faces a lengthy custody sentence.  The likelihood of the applicant in order to avoid standing trial is high given the fact that accused’s defence is essentially a bare denial.

Our law regarding the principles applicable in bail applications is fairly well settled.  The court is enjoined to strike a balance between the right to individual liberty and the interests of the administration of justice.  The interests of justice demand that an accused’s presumption of innocence be safeguarded as enshrined in section 70 (1) (a) of the Constitution of Zimbabwe (Amend No. 20), 2013.  The applicant was implicated by his co-accused who is currently in remand prison.  The applicant gave no explanation to why he was being falsely implicated.  In my view, there is a strong prima facie case against the applicant.  The possibility of a conviction and a lengthy custodial sentence is sufficient inducement for the applicant to have the temptation to abscond.

In State v Jongwe SC 62-02 the court opined that:

“because the prospects of conviction and the imposition of a long prison ….. the temptation to abscond if granted bail is irresistible.  It is submitted that the sentiments apply with equal for to the matter at hand.”

In State v Moyo HB 23/05, the court pointed out that where the state case is prima facie strong and a conviction is guaranteed, the applicant with that knowledge, is most unlikely to wait for a trial whose conclusion will be against him.  In the circumstances of the case, and accordingly, the applicant is not a suitable candidate for bail.

In the result, the application for bail pending trial is hereby dismissed.

Sansole and Senda, applicant’s legal practitioners

National Prosecuting Authority, state’s legal practitioners