Prisca Moyo v State

### Preamble
1
HH 224-21
HACC (B) 15/21
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PRISCA MOYO

versus

STATE

HIGH COURT OF ZIMBABWE

KWENDA J

HARARE 14 April, 2020 & 03 May 2021

Appeal against refusal of Bail

B. Taruvinga, for the appellant

Muzivi, for the respondent

KWENDA J: The appellant appeared before Court a quo charged with Criminal abuse of duty as a pubic officer as defined in s 174 of the Criminal Law (Codification & Reform) Act [Chapter 9:23]. The allegation is that the appellant, who is employed in the service of the State and stationed at Makombe Passport office as a Processing officer, corruptly released a passport to Pretty Choice Madekufamba at a time when the issuing of ordinary passports had been suspended. The passport was released through the facilitation of Nicholas Chogugudza, who allegedly hangs around at Makombe Building as a link between members of the public and State employees working at the passport office. It is alleged that earlier requests by Betty Choice Madekufamba to have the passport released to her had been rejected until she was approached by Nicholas Chogugudza who solicited a bribe of USD 20 for the release of a passport. Betty Choice Madekufamba reported the solicitation for a bribe to the Police resulting in a trap. She was given trap money which she gave to Nicholus Chagugudza. It is alleged that, indeed, following the payment of the bribe the passport was retrieved by the appellant and released to Pretty Choice Madekufamba through the recipient of the bribe money, Nicholas Chogugudza.

The applicant applied for bail which was opposed by the State on the grounds that the appellant was likely to flee considering the gravity of the offence and that the appellant was likely to interfere with witnesses and investigations.

The court a quo denied bail on the grounds that the State evidence is overwhelming and that is likely to influence the appellant to flee.

The appellant submitted an appeal that the court a quo erred in concluding there is evidence upon which the appellant may be convicted since the State case is based on the mere say so of Nicholas Chogugudza who received the bribe and the said Nicholas could be protecting the true identity of the person working in the Passport office whom he dealt with. The State conceded that there is no record of the person who retrieved the passport.

Initially I was inclined to accept that the mere say so of the Nicholas Chogogudza may not be sufficient evidence to secure a conviction. However, on reflection that at this stage the State does not have to prove its case beyond reasonable doubt. All the State is required to do is to link the accused with the crime. It was argued that the court a quo overemphasized the strength of the State case based on the evidence of an accomplice. However, such evidence remains at the disposal of the State who may decide to use the accomplice as a State witness.

It is on record that the state opposed bail on the grounds of the risk of interference. It is common cause that Nicholas Chogugudza is not employed at the Passport Office. He has no access to security items like passports. The passport could only have been released by a processing officer. It is unthinkable that the Passport Office would not have record of who among their officials retrieved the passport. There is evidence of interference already. A misdirection only gives this court the leverage to consider, on the argument placed before the court of origin, whether, the applicant ought to have been admitted to bail.

However, in light of clear evidence of interference which can easily be inferred from the unwillingness by the appellant’s office to cooperate I have no reason to interfere with the decision to deny the appellant bail on the basis that the appellant is likely to interfere with investigations. No bail condition is likely to stop communication between the appellant and his workmates. As is always the case when a bad practice becomes the norm, there appears to be a pact to protect each other and a mere phone call is enough to enforce the illegal pact.

Accordingly, the decision a quo, dismissing the appellant’s bail application cannot be faulted because the risk of interference is high.

The appeal be and is hereby dismissed.

Tafirei and Company, appellant’s legal practitioners

National Prosecuting Authority, respondent’s legal practitioners