Tatenda Manokore and 4 Others v The State

### Preamble
1
HB 179.20
HCB 203/20 & HCB 207/20
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TATENDA MANOKORE

And

NQOBANI SIBANDA

And

CLENIUS SITIMELA

And

MORGAN MOYO

And

BHEKITHEMBA SIBANDA

Versus

THE STATE

HIGH COURT OF ZIMBABWE

TAKUVA J

BULAWAYO 17 JULY AND 27 AUGUST 2020

Application For Bail Pending Trial

T Runganga, for the applicants

K Ndlovu, for the respondent

TAKUVA J:		The five applicants face a charge of contravening section 126 (b) of the Criminal Law (Codification and Reform) Act (Chapter 9:23) “Armed Robbery.”  The allegations are that on 17th June 2020 during the night, the 5th applicant connived with 2nd and 3rd applicants to go to Inyathi some 60 km away to rob complainant.  Second and 3rd applicants are members of the Zimbabwe National Army who were deployed to perform COVID 19 duties at Bulawayo Polytechnic.  The two soldiers were in full army uniform and armed with Zimbabwe National Army AK 47 rifles.  The three drove to Inyathi where they teamed up with 1st and 4th applicants before proceeding to complainant’s home.  Upon arrival at complainant’s house around 2330 hours they hit the door violently demanding that complainant opens the door at the same time threatening to shoot him.  When complainant realised that they were soldiers involved in the attack he phoned his brother one Khulani Moyo who in turn immediately made a report at Inyathi Police Station.  Applicants broke down the outer door and entered the house.  They proceeded to break down the door to the bedroom where the complainant and his family had taken refuge.  Once inside, they demanded cash and keys to complainant’s truck that was parked in his yard.

Fearing for his life and that of his family members, complainant handed over USD$450-00 and the keys to his Nissan Atlas truck.  The applicants kidnapped the complainant and bundled him in the truck and drove along Bulawayo-Nkayi road.  Meanwhile the police who had been informed of the robbery by Khulani Moyo drove to the complainant’s house where they witnessed the robbery.  They were armed with a mosbeck firearm and an.FN rifle and led by Assistant Inspector Chinamatira.  The team decided not to engage the robbers in a gun battle upon realising that there were two armed soldiers.  The applicants stopped at a police manned road block where the complainant jumped and ran into the bush.  One of the armed soldiers informed the police that the complainant was “their” accused they had “arrested” for illegal mining.  They were allowed through after indicating that they were on their way to Doves Mill.  The pursuing police team also drove through the roadblock and advised the Officer In Charge Inyathi who in turn contacted Army Command at HQ1 Brigade leading to the dispatch of a team of Military Police headed by Lawrence to beef up.the police officers pursuing the applicants.

The two teams saw the applicants at Doves Mine where they had parked the stolen truck.  One of the soldiers identified the pursuing truck and moved away leading to the pursuing team firing the Mosbeck firearm at the applicants and one of them was hit on the leg and he fled into the bush.  The rest drove the stolen truck and dumped it at complainant’s house.  Army HQ1 Brigade conducted a roll call and 2nd and 3rd applicants were identified as missing from their posts of deployment schedule and an ambush was set.  On 18 June 2020 at approximately 0600 hours, 2nd applicant arrived at his point of guard and was disarmed and arrested.  He was found in possession of USD42-00, R20-00, $110-00 bond notes and an AK 47 rifle with 80 rounds.

Meanwhile 3rd applicant who had been shot in the leg approached Obadiah Manyathela a villager in Inyathi and asked for transport to Bulawayo.  The 3rd applicant was limping heavily.  He was brought to Josi shopping centre where he was arrested following a tip-off to the army camp by one of the shop owners.  A search resulted in the recovery of USD$31-00, $60-00 RTGS in his possession and was immediately arrested.  The 1st applicant was arrested while at his girlfriend’s homestead in Inyathi on 18 June 2020.  On 19 June 2020, the 4th applicant was arrested by the members of the public while hiding in the bush.  He was handed over to Sergeant Muzondo of ZRP Inyathi.  The 5th applicant was arrested on 29 June 2020 at his house.

All the five applicants were placed on remand in custody.  They now seek to be admitted to bail pending their trial.  They deny the state’s allegations arguing that they are in fact partners who have invested in mining business operating in Inyathi.  It was further alleged that 1st applicant is a holder of a prospecting licence while the 4th applicant was their “manager”.  On the night in question they went to Inyathi to transport their ore to Doves Mill for processing.  Upon arrival in Inyathi they collected 1st and 4th applicant.  The 1st applicant indicated that the complainant owed him money and he wanted to pass by collecting the money as well as hire the complainant’s truck to collect the gold ore for processing.

Complainant only paid USD 190 leaving a balance of USD 3000-00.  They then took his truck with his consent.  Complainant is also alleged to have voluntarily joined the applicants on the way to the mill.  However complainant disembarked at a police road block indicating that he would meet the applicants at the mill.  The applicants proceeded to the mill where they waited for their ore to be processed.  While waiting in the queue a motor vehicle arrived and shortly thereafter shots were fired in the air.  Fearing for their lives the applicants hid in the bushes until the car drove off.  The applicants then drove the complainant’s motor vehicle to his home and left it there.

The applicants’ argument for bail is that they are good candidates for bail in that they are of fixed abode.  It was alleged that the 1st applicant is a student while 2nd applicant and 3rd applicants were said to be gainfully employed.  It was further contended that all the applicants will not abscond since they did not commit the offence and have a strong defence to the charge.  Also, it was submitted that the state case is very weak in that it is based on the evidence of an incredible witness who was working with corrupt police officers at Inyathi to rob miners of their gold ore.  Applicants placed the onus to establish compelling reasons which warrant their further detention on the State.  Finally, it was argued that the fact that the presumption of innocence is still operating in the applicants’ favour coupled with the fact that the State has ‘a huge mountain to climb” at trial, should convince the Court that applicants are not a flight risk.

The principles governing applications for bail pending trial are a well beaten path.  The starting point is section 50 (1) (d) of the Constitution of Zimbabwe which provides that any person who is arrested must be released unconditionally or on reasonable conditions pending trial unless the State can provide compelling reasons justifying his or her continued detention.  Without any doubt, this provision places the burden on the State where it is opposed to the granting of bail to place before the court cogent and compelling reasons – see Munsaka v The State HB 53/10.

Prima facie, the facts and circumstances of this case point to an offence of robbery committed in aggravating circumstances since a firearm was used to enforce submission and facilitate the taking as contemplated in section 126 of the Criminal Law (Codification and Reform) Act (Chapter 9:23).  It follows therefore that the provisions of section 115 (c) (2) (a) (ii) of the Criminal Procedure and Evidence Act Chapter 9:07 apply to this matter.  According to this section, where an accused has allegedly committed an offence, which is specified in Part 1 of the Third Schedule, he shall bear the burden of showing on a balance of probabilities that it is in the interest of justice for him or her to be released on bail, unless the court determines that in relation to any specific allegation made by the prosecution, the prosecution shall bear that burden.

Robbery where one or more of the participants wield firearms is one such offence specified in the Third Schedule – (See paragraph 3 to Part 1 of the Third Schedule).  The specification of this offence in the Third Schedule means that the onus is on the applicants to convince and persuade the court that they are good candidates for bail.

Section 115 provides;

“115 COMPELING REASONS FOR DENYING BAIL AND BURDEN OF PROOF IN BAIL PROCEEDINGS

(1) 	In any application, petition, motion, appeal, review or other proceeding before a court in which the grant or denial of bail or the legality of the grant or denial of bail is in issue, the grounds specified in section 117 (2) being grounds upon which a court may find that it is in the interests of justice that an accused should be detained in custody until he or she is dealt with in accordance with the law, are to be considered compelling reasons for the denial of bail by a court.

(2)	Where an accused person who is in custody in respect of an offence applies to be admitted to bail-

(a)	before a court has convicted him or her of the offence-

(i)	the prosecution shall bear the burden of showing, on a balance of probabilities that there are compelling reasons justifying his or her continued detention, unless the offence in question is one specified in the Third Schedule.

(ii)	the accused person shall, if the offence in question is one specified in –

A	Part 1 of the Third Schedule, bear the burden of showing on a balance of probabilities, that it is in the interests of justice for him or her to be released on bail, unless the court determines that, in relation to any specific allegation made by the prosecution, the prosecution shall bear that burden.

B 	......

(b)	........” (my emphasis)

The reference in section 115 (c) to the provisions of section 117 (2) is relevant in that those provisions are the ones which should be considered as compelling reasons for the denial of bail.  The argument advanced by the applicants’ legal practitioner that section 117 is unconstitutional is misplaced in that to my knowledge the Constitutional Court has not declared either section 115 or 117 unconstitutional.  In that regard reliance on Munsaka v State HB 53/16 is unhelpful in my view.  Accordingly, the onus cast on the applicant is to prove on a balance of probabilities that the factors listed in section 117 do not exist.  Unfortunately the applicants started from the premise that the onus is on the State.

Be that as it may, the overriding principle in bail applications relates to the interests of justice.  Put differently, the court must strike a balance between the interests of society, namely that an applicant should stand trial and that there should be no interference with the administration of justice on one hand, and the liberty of an accused person (who pending his trial is presumed innocent) on the other hand.  When assessing the risk of an applicant absconding, the court is guided by the following factors;

(a)	the nature and character of the charge and the likely penalty if convicted.

(b)	the strength and weakness in the State case.

(c)	the accused’s ability to flee to a foreign country.

(d)	the past response to being released on bail.

(e)	the assurance that the accused person will indeed attend trial.

In casu, the State’s reasons for opposing bail are that there are compelling reasons for the continued incarceration of the applicants in that the State has a strong prima facie case against all the applicants.  Further, the offence they are facing is a serious one.  The conviction is highly probable given the strength of the evidence.  In the event of a conviction the applicants are likely to be given lengthy custodial sentences which might act as an  incentive to abscond.

As regards the strength of the State case, the applicants’ averments that they never robbed the complainant on the night in question, and that they simply “hired” the complainant’s truck in order to ferry their gold ore for milling at Doves Mill is on the evidence false beyond any doubt.  I say so for the following reasons;

(a)	there are witnesses whose identities have been fully supplied who saw the applicants robbing the complaint at his homestead.

(b)	amongst these witnesses are police officers who observed the robbery at complainant’s home.

(c)	it is common cause that all applicants were found in possession of the stolen motor vehicle at the time they were confronted by the police at Doves Mill.

(d)	while applicants allege that they are working at an unnamed mine in Inyathi, they have failed to provide any proof such mine’s existence.

(e)	according to the .Investigating Officer’s affidavit none of the applicants has mining claims in the area.

(f)	also despite 1st applicant’s repeated assertion that he is a holder of a prospecting licence, he never produced it.  In any event, such a licence does not authorise the holder to conduct mining activities other than to search for minerals.

(g)	according to the owner of Doves Mill, who is a State witness, the applicants did not bring any ore to his plant on the night in question.

(h)	applicants alleged that they went to Inyathi in the dead of night because they had been told that it was “their turn” to mill gold ore, but surprisingly they did not divulge the identity of the person who informed them.

(i)	applicants have to date not produced a movement permit authorising them to move the ore from their “mine” to the mill as required by law.

(j)	after the shooting applicants did not leave any gold ore at Doves Mill and when the truck was recovered at complainant’s home, it had no ore in it.  Moreover, they did not report the shooting incident to the Police.

(k)	the submission that the 1st applicant is a student was not substantiated in that no document from any institution of higher learning was placed before the court.

Just like the existence of the so called nameless partnership, applicants want the court to go by their mere ipse dixit.  This is not enough especially where like in casu, the onus is on the applicants to show that there are no compelling reasons to deny them bail.

In an attempt to discredit or weaken the State case, applicants attacked complainant’s character.  They labelled him a member of the “Mashurugwi” a term used to describe illegal gold miners who terrorise gold mining locations.  The police at Inyathi including the Investigating Officer were not spared as they were labelled as “corrupt” officers who together with the complainant rob miners of their gold ore in the area.  Notwithstanding this palpable criminality, no report was made to the Officer Commanding Police in Matabeleland North.  I do not find the criticism that the police should have approached the applicants guns blazing in order to arrest applicants at complainant’s house and at the road block credible.  I find the explanation given namely that the police had lighter weapons than the 2 soldiers had (i.e the two AK rifles) and the need not to jeopardise the lives of innocent people at the complainant’s home and road block, to be truthful and reasonable.

Bearing in mind the onus on the applicants, I find that on a balance of probabilities the applicants’ version is untrue.  The core issue is whether or not the applicants’ midnight mission to Inyathi was legitimate.  I take the view that the purpose of the trip was to rob the complainant.  Why would five adults collect a debt whose origin is unknown at night and without any prior warning or assurance that complainant had the money.  Equally surprising is why the applicants simply drove to Bulawayo after the shooting without first reporting the shooting to the Police.  This was necessary in view of the fact that one of the soldiers was missing.  All applicants except the 3rd returned to their respective homes and carried on with their lives as if nothing had happened.

In view of the above, I find that the State has a strong prima facie case against the applicants.  The applicants are facing a serious charge of armed robbery involving the use of firearms by members of the army in uniform.  If the applicants are convicted, they are most likely going to be sentenced to lengthy custodial terms, thus they will be tempted to abscond and not stand trial.  It should be noted that at this stage of the proceedings the State has no onus to prove the guilt of the applicants beyond a reasonable doubt.

In any event, all the applicants admit being at the scene of the crime where they interacted with the complainant.  In such cases, it is not for the State to show compelling reasons, it is for the applicants to discharge the onus by adducing evidence showing that it is in the interests of justice that they be granted bail.  On the available evidence applicants have failed to discharge that onus.  I find that they are not good candidates for bail.

Accordingly the application for bail pending trial is dismissed

Mutatu, Masamvu & DA Silva-Gustavo, applicants’ legal practitioners

National Prosecuting Authority, respondent’s legal practitioners