Simelweyinkosi Dube v The State

### Preamble
1
HB 293/20
HCB 354/20
---------


SIMELWEYINKOSI DUBE

Versus

THE STATE

IN THE HIGH COURT OF ZIMBABWE

MAKONESE J

BULAWAYO 8 & 10 DECEMBER 2020

Bail Application

T Ndlovu for the applicant

B. Maphosa for the respondent

MAKONESE J:	The applicant is facing 5 counts of armed robbery as defined in s126 of the Criminal Law Codification and Reform Act (Chapter 9:23).  The applicant denies the allegations.  The state alleges that between 9 October 2020 and 23 October 2020 the applicant, in the company of accomplices who are still at large, and two others who are in remand prison went on a rampage around the City of Bulawayo armed with pistols, axes, machetes and bolt cutters stealing cash and other valuables.  The five charge sheets against the applicant reveal that the applicant is alleged to have stolen cash amounting to US$45 500 and ZAR300 240.  The movables stolen in the robberies are worth US$8 950. The applicant is currently in remand custody pending trial.  Investigations are complete and the police docket is ready for set down.

In his bail statement, applicant avers that he is ordinarily resident at 1923 New Magwegwe, Bulawayo and is self-employed.  He resides with his wife.  Applicant further indicates that he is in the business of buying various items for resale.  Applicant asserts that he has been wrongly implicated by his accomplices and denies any participation in the robberies.  He has co-operated with the police since his arrest.  There is no danger of abscondment as he is innocent on all the charges.

The state concedes that the applicant was implicated by his co-accused Sonto Sibanda and Thubelihle Ncube who are also in remand prison.  The Investigating officer Mehluli Sibanda states in his sworn affidavit that applicant led to the recovery of a Toyota Corolla motor vehicle registration number AAM 2003 which he claimed he purchased using the proceeds of the stolen money.  Further, the Investigating Officer indicates that the applicant made   indications at the scenes of crime.  Soon after the arrest of his co-accused Sonto Sibanda and Thubelihle Ncube, the applicant vacated his place of residence at 4852 Magwegwe West, Bulawayo where he was renting, leaving behind all his belongings at that address.  Applicant was arrested at a hide-out or safe house at 13914 Cowdray Park, Bulawayo.  A few blankets were found at applicant’s hide-out, indicating that this was not his usual place of residence.  Applicant’s accomplices alleged that after committing the offences applicant purchased a Toyota Corolla motor vehicle using the proceeds of crime.  The motor vehicle has been recovered and is being held as an exhibit.

The state avers that applicant is facing very serious offences but there is overwhelming evidence only against his co- accused. The state now concedes that there was no proper identification of the applicant at an identification parade.

The legal position

The law regarding bail applications is now well settled in this jurisdiction.  In terms of s70 (1) (a) of the Constitution of Zimbabwe (Amendment No. 20) 2013, any person accused of a crime is presumed innocent until proven guilty.  It is accepted by this court that the presumption of innocence still operates in favour of the applicant.

Section 117 (2) of the Criminal Procedure and Evidence Act (Chapter 9:07) provides that the refusal to grant bail and detention of an accused in custody shall be in the interests of justice where one or more of the following grounds are established where there is likelihood that the accused, if released on bail will;

Endanger the safety of the public or any particular person or will commit an offence referred to in the First Schedule; or

Not stand trial or appear to receive sentence; or

Attempt to influence or intimidate witnesses or to conceal or destroy evidence; or

Undermine or jeopardise the objectives or proper functioning of the criminal justice system including the bail system.

In this matter, the applicant has tendered a plausible defence to the allegations.  On all the 5 counts of robbery, the applicant has not been properly linked to these offences.  Further the applicant contends that the reliance on accomplice evidence makes the case against him weak.  It ought to be observed that in an application for bail the state is not obliged to prove its case against the accused beyond reasonable doubt.   An accused is only required to lay before the court a probable defence to the allegations. Applicant vehemently denies any involvement in the robberies. In my view, an applicant in a bail application must place all relevant information before the court to enable the court to make an informed decision and to exercise its discretion judiciously.  Serious allegations have been made by the Investigating Officer that the applicant was linked to 3 different addressed of residence.  The state indicates, however, that the applicant resides at the given address, 1923, New Magwegwe, Bulawayo.  In  his bail statement applicant states that he resides with his family at 1923 New Magwegwe.  Applicant has shown that he is of fixed abode.

In S v Bennet 1976 (3) SA 653 and several other decided case, the courts have adopted the approach that a balance must be struck between the liberty of the individual and the interests of justice.  The requirements were reiterated in the case of S v Makamba  2004  ZLR 376.  These may be summarized for convenience as follows:

Whether the applicant will stand trial.

Whether the applicant will interfere with investigations or temper with prosecution witnesses.

Whether the applicant will commit offences whilst on bail.

Other circumstances that the court may deem good and sufficient

Conclusion

In judging the risk of abscondment the court has taken into consideration that the applicant is of fixed abode.  The applicant is only linked to the offences by his accomplices.  Whether the evidence of these accomplices will be admissible is a matter for the trial court. The seriousness of the offence is not a reason for denying bail on its own.  It has to be taken into consideration with other factors.  The presumption of innocence still operates in favour of the applicant.

In the result, and accordingly, I am satisfied that the applicant is a suitable candidate for bail.

The application for bail pending trial is hereby granted in terms of the draft order.

Sansole & Senda, applicant’s legal practitioners

National Prosecuting Authority, respondent’s legal practitioners