Semkelwe Maphosa v The State

### Preamble
1
HB 147/ 20
HCB 197/20
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SEMKELWE MAPHOSA

Versus

THE STATE

IN THE HIGH COURT OF ZIMBABWE

MAKONESE J

BULAWAYO 8 & 14 JULY 2020

Bail Pending Appeal

Z. Ncube for the applicant

K. Jaravaza for the respondent

MAKONESE J:	The applicant was convicted by a Regional Magistrate at Plumtree of 39 counts of fraud in contravention of section 136 of the Criminal Law Codification and Reform Act (Chapter 9:23).  Applicant was sentenced to a total of 14 years imprisonment of which 3 years was suspended for 5 years on the usual conditions of future good conduct, a further 5 years was suspended on condition of restitution.

Aggrieved and dissatisfied with both conviction and sentence imposed by the court a quo applicant has filed a notice of appeal to this court.  The applicant has approached this court seeking bail pending the hearing of her appeal.

The state filed a detailed response conceding that the conviction was not safe and ought to beset aside.  On the day of the hearing, Mr Jaravaza, appearing for the state indicated that he was not the author of the response to the bail application filed by the state.  He went further to point out that he had not had occasion to discuss the matter with his colleague who had prepared the response.  He was not standing by the concession made by the state in its written response.  In his view, the conviction was proper and the appeal had no prospects of success.  I did express my dismay at the fact that when the state makes a concession that is detailed, the court will usually give serious consideration to the attitude of the state as to whether or not to grant bail. While court is not necessarily bound by the concession made by state counsel, the views expressed by the state and the opinions they proffer are not to be taken lightly by the court.  I must therefore point out that, generally the state cannot simply abandon its written response to an application for bailand without good cause.  Counsel for the state, filing an opinion on the state’s position towards the granting or refusal of bail does so as an officer of the court. In this matter, in view of the view taken by state counsel in oral argument, essentially abandoning the concession, I must therefore, determine the merits of the application, and give full consideration to what has been placed before me by Mr Z. Ncube, appearing for the applicant, as well as the written submissions filed by the state in response to the application. I must also consider the brief oral submissions by Mr Jaravaza.

Background

Applicant was employed as a records clerk by the Zimbabwe Revenue Authority (ZIMRA) based at Plumtree Border Post.  Her official duties were to capture into the ZIMRA SAP (Systems Applications of Products) the details of imported vehicles and then generate Customs Clearance Certificates (“CCCs”).  These certificates are proof that an importer of a vehicle in Zimbabwe has paid customs duty for it.  The CCCs would then be taken to the Central Vehicle Registry (CVR) by the importer as proof that customs duty has been paid and the vehicle may be registered into a national data base.  It is alleged that on various dates between January 2019 and July 2019, the applicant cleared for importation various types of vehicles by unlawfully issuing Customs Clearance Certificates (“CCCs”) knowing that no customs duty had been paid for the vehicles.  It is alleged that on each count, the applicant would issue a false clearance certificate with a fake serial number and a duty assessment number.  These details led the Zimbabwe Revenue Authority to act on the misrepresentation believing that duty had been paid.  The state alleges that the state suffered prejudice amounting to USD545 638 and Z$768 365.  The court a quo concluded that the state succeeded in proving the case against the accused beyond reasonable doubt.  In her defence the applicant contended that in respect of some of the transactions which are imputed to her she was instructed by her supervisor not to print the CCCs and that such CCCs would not be entered into the CCC register.  On some of the CCCs she averred that her password for accessing her profile may have been used by someone to access the computer system to generate false CCCs.  In other instances, the applicant argued that the ZIMRA system may have been hacked by other persons who could generate false CCCs using her profile.  She indicated that some ZIMRA employees had access to her computer and could access her profile using the stolen password.  In creating CCCs, applicant indicated that in terms of her duties, she would simply use the information supplied to her without viewing the imported goods.

In her grounds of appeal the applicant contends that the learned magistrate in the court a quo misdirected himself at law in making a finding that the state had proved its case beyond reasonable doubt when it was clear that the evidence could not secure a conviction.  In any event, the applicant argues that the court a quo erred and misdirected itself by dismissing out of hand applicant’s defence that any other ZIMRA official who either assessed her password or hacked into her profile could have committed the offence.  Furthermore, the court a quo failed to realise that the information captured by the applicant in the ZIMRA system was processed by other officials who were neither investigated now called to testify by the state.  The court a quo accepted inadmissible hearsay evidence by the Loss Control Officer as to what transpired at the Central Vehicle Registry regarding imported vehicles.

The law regarding bail pending appeal

The position of the law concerning applications for bail pending appeal is now settled in this jurisdiction.  Broadly speaking, the factors regarding the admission of an applicant to bail following his conviction are the following.

prospects of success of the applicant on appeal;

the likelihood of the applicant absconding while on bail;

the liberty of the individual;

the likely delay before the appeal could be heard;

the length of sentence currently being served;

the interests of the administration of justice.

In S v Williams 1980 ZLR 466 (AD) FIELDSHAND CJ (as he then was) stated at page 468G-H that:

“…the proper approach should be towards allowing liberty to persons where that can be done without any danger to the administration of justice.  In my view to apply this test properly it is necessary to put in the balance both the likelihood of the applicant absconding and the prospects of success.  Clearly, the two factors are interconnected because the less likely are the prospects of success the more inducement there is on the applicant to abscond.  In every case where bail after conviction is sought the onus is on the applicant to show why justice requires that he should be granted bail.”

In this case, it is not possible to say that there are no reasonable prospects of success for the following reasons:

the physical books/entries/documents hinted to be in existence by the state witnesses were never produced and tendered before the court a quo.

the production of the physical books and exhibits would have proved the integrity of the data the applicant was supposed to capture and enter into the computer system and which she allegedly manipulated.

the failure by the state to produce the paper trail and evidence of the physical transactions raises the possibility of a conviction based on insufficient evidence.

The further difficulty with the state case is that the evidence of the witnesses who were called by the state namely, Aleck Madyanadzo, The ZIMRA Loss Control Officer and Nkosentsha Ncube, applicant’s then supervisor, while it serves its purposes, that is to point to irregularities in the clearance of imported vehicles which was extracted from SAP (Applied Systems and Products) and ASCUNDA Systems as well as ZIMRA Computer Systems, the witnesses who testified were not custodians of the relevant operating systems.  There was no clear and independent evidence presented before the court a quo to prove that it was the applicant and none else who manipulated the systems to forge entries and defraud the complainant.  The long and short of it is that, the state took a lackadaisical approach and failed to present sufficient evidence which evidence would have assisted in the trier of the fact to establish the guilt of the applicant beyond reasonable doubt.  The gap in the evidence presented by the state necessarily means that the prospects of success on appeal are reasonable and realistic.  One may not say the appeal is hopeless and doomed to fail.

In the Supreme Court decision of Gumburav The State SC-78-14, PATEL JA stated the following at page 3 of the cyclostyled judgment:

“Having regard to all the foregoing, the central issue for determination in this matter is whether the court a quo erred or misdirected itself in finding that there were no prospects of success on appeal from the decision of the Magistrates’ Court.  The test to be applied in this regard is relatively uncomplicated:  Is the appeal “reasonably arguable and not manifestly doomed to fail?  See State v Hudson 1996 (1) SACR 431 (W).”

See also: S v Dzawo 1998 (1) ZLR 536 (S)

If this principle is properly applied in the determination of this application, the position is clearly that the appeal does have reasonable prospects of success.

It is noted that in his judgment the trial magistrate in the court a quo was aware that he was dealing with circumstantial evidence.  He concludes by stating that:

“when one joins all these strands or pieces of circumstantial evidence together the only reasonable conclusion is that all the 39 transactions which comprise severally all the 39 counts she is facing, she is the one who deliberately created these false CCCs by infusing an equipment number from other past transactions in order to intentionally create an impression to ZIMRA that duty had been paid to ZIMRA for each of the 39 motor vehicles when in fact to her knowledge nothing was paid …”

The learned magistrate then goes on to state that “nothing points to her innocence.  Thefact that no one saw her doing that is neither here nor there.”  This approach to the consideration of the guilt of the applicant appears to place an onus on the applicant to prove her innocence.  The various pieces of evidence referred to by the court a quo have to be such that they exclude every possibility other than the guilt of the applicant. In my view, the court a quo, misdirected itself in failing to realize that the accused did not have to prove her defence. As I have already indicated, the appeal does carry some prospects of success.

As regards sentence, whilst the court a quo has the inherent discretion in matters of sentences, the overall sentence is clearly excessive in all the circumstances.  Whilst a custodial sentence would be inevitable in the event that the appeal court dismisses, the appeal the appeal against sentence itself is not, by any means a hopeless exercise.

For these reasons, I am satisfied that there are reasonable prospects of success against both conviction and sentence.  The state has not advanced any argument that the applicant is likely to abscond pending appeal.  Applicant has undertaken to reside at her residence in Plumtree pending the finalisation of her appeal.  In my view, the applicant has discharged the burden of proving that on a balance of probabilities, it is in the interests of justice for her to be admitted to bail pending appeal.

In the circumstances, and accordingly, the application is granted in terms of the draft order.

Ncube & Partners, applicant’s legal practitioners

National Prosecuting Authority respondent’s legal practitioners