Vusumuzi Moyo v The State

### Preamble
1
HB 263/22
HCB 377/22
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VUSUMUZI MOYO

Versus

THE STATE

IN THE HIGH COURT OF ZIMBABWE

MAKONESE J

BULAWAYO18 & 27 OCTOBER 2022

Bail application

T. Razemba for the applicant

K. Shava for the state

MAKONESE J:	This is an application for bail pending trial.  The applicant and five co-accused persons are facing 6 counts of armed robbery and contravening of section 126 of the Criminal Law Codification an Reform Act (Chapter 9:23).  Applicant denies the allegations and avers that he has been wrongly implicated in this matter.  The application for bail is opposed by the state.

Background facts

During the period extending from 20 March to 31st April 2022 there were a spate of robberies around the Inyathi and Turk Mine areas.  The same modus operandi was used in the commission of these offences.  Machetes, axes, shovels, button sticks and pistols were some of the weapons in the robberies.

In count 1, the complainant one Mandlenkosi Maphosa the owner of Sarah South Mine, Famona, Inyathi was approached in the early hours of the morning around 0100 hours whilst asleep. Complainant had a berretta pistol and two rounds of ammunition under his pillow.  It is alleged that complainant was confronted by the applicant and his co-accused who demanded that he hands over his pistol.  Complainant was searched, his pistol, wallet and other identification documents were forcibly taken from him.  The suspects went on to steal 100kgs of gold carbons.  Complainant‘s workers attacked the armed robbers and fired shots.  The suspects fled from the scene, and in the process dropped the wallet, a cellphone line and one column with gold carbons.  On the 25th of April 2022 complainant was summoned to Inyathi Police Station where he identified his berretta pistol, which had been taken from him during the course of the robbery.  Complainant positively identified the pistol through its serial number, A55069 U.

In count 2, on the 20th of March 2022 and at Mucklenuch Mine, Inyathi the applicant and his co-accused allegedly robbed the complainant Khumbulani Tshabangu of 100kg of pregnant carbons and mobile phones before disappearing.  The accused persons struck the complainant on the back using a shovel before making away with the stolen loot.

In count 3 the applicant and his co-accused allegedly confronted Loveday Majuru with machetes, axes and a berretta pistol before taking 100kg of pregnant carbons.

In count 4, on the 1st of April 2022 the applicant and his co-accused approached Blessed Dube at Queens Old Inn Hotel, Inyathi.  Using a machete, an axe, iron bar, button stick and berretta pistol applicant and his co-accused induced fear in the complainant and robbed him of cash amounting to US32.

In count 5, on the 1st of April 2022 and at Queens Old Inn Hotel, Inyathi applicant and his co-accused robbed Lilian Moyo of cash amounting to US$270.  Axes, machetes, iron bars, button sticks and a berretta pistol were used in the robbery.

In count 6 the applicant and his co-accused approached Elizabeth Mpala at Queens Old Inn Hotel, Inyathi on the same day, the 1st of April 2022 and robbed her of 18 x 1 litre super Chibuku beers.

In a statement filed with this court Victor Shava, a detective stationed at Criminal Investigations Department, Lupane, confirms that during the course of investigations he received information indicating that at Kilderlon Milling centre, the complainant in count 3 was robbed of 100kg of pregnant carbon.  The applicant and his co-accused ran away leaving behind an 18mm spanner, a 19 CR-V iveco spanner with an engravement HT, empty 50kg sacks, a live round of ammunition and a yellow worksite grinder with an engravement TS.  These items were recovered during the scene attendances and kept as exhibits.  Detective Shava applied for authority to service providers Econet and Netone to provide phone records showing the geographical locations of the phones that were being used by the suspects.  Results from Econet indicated that on the relevant dates and times, the applicant, Vusumuzi Moyo’s Econet sim-card number 0774858748 was connected to Queens Econet booster in Inyathi.  Some of the tools and equipment stolen at other scenes of crime were linked to other robberies in the same area.  After questioning, the suspects admitted to the robberies and led detectives to house number 58119 Mabuthweni, Bulawayo where applicant’s uncle resides.  Applicant was subsequently arrested in connection with the armed robberies in counts 1 to 6.

Submissions of the applicant

Applicant submits that he has consistently and persistently protested his innocence in respect of these allegations.  Applicant avers that the only link to these allegations is that he once worked with the co-accused person in Inyathi as a gold panner.  Applicant contends that he was implicated by one Joachim Mangena who is currently on the run.  Applicant contends that no property connected to the robbery was recovered from him.  Further applicant argues that none of the weapons used in the commission of the offences was recovered from him.  Applicant avers that he was involved in the mining sector before moving to Bulawayo where he now resides.  Applicant submits that he is a suitable candidate for bail.  He has never been convicted of a criminal offence.  There is no risk of abscondment in the event that he is granted bail pending his trial.

Submissions by the state

Respondent is strongly opposed to the granting of bail.  Applicant is jointly charged with Thamsanqa Kabetha who was granted bail by this court. He has since skipped bail and is on the run.  The respondent submits that the likelihood of the applicant absconding if granted bail is high.  The state noted that the main perpetrator and leader of this armed robbery gang was granted bail and absconded.

The state contends that there are compelling reasons for the denial of bail.  The applicant has tendered a bare denial to these allegations.  No reason is proffered why applicant would be implicated in these armed robberies if he was never involved.  The applicant does not explain why his mobile number is shown by the service provide to have been connected to the Queens Econet booster in Inyathi, at the relevant time.  Whilst no onus rests on the applicant at this time, where the state makes specific allegations indicating that applicant was at or near the scenes of the crime at the relevant time, the applicant must advance some explanation in response to those specific allegations.

The law and principles on bail pending trial

In terms of section 116 (1) of the Criminal Procedure and Evidence Act (Chapter 9:07) the court is empowered to admit to bail an accused person, pending his trial.  Section 50 of the Constitution of Zimbabwe (Amnd No. 20) (2013) provides that an arrested person is entitled as of right to be unconditionally released on bail on reasonable grounds, unless there are compelling reasons not to do so.  See S v Munsaka HB-55-16.

There is always a heavy onus on the State to show why the accused person must be detained pending his trial.  This is because the presumption of innocence is at the centre of the criminal justice system.  The overriding consideration, however, is the interests of the due administration of justice.  Before bail is denied, the court must be satisfied that there are compelling reasons for the refusal of bail.  Where the state has laid out a strong prima facie case, the applicant in a bail application must proffer a defence that is reasonably possibly true.  The applicant in a bail application is not expected to prove his defence but to state what his defecnce is.

In this mater, the state has placed before the court the allegations against the applicant.  Applicant does not deny that he once worked with the co-accused persons at a mine.  Applicant has not refuted that at the relevant time his Econet line was in use at or near the scenes of the robberies.  Applicant admits that his co-accused who has been granted bail has absconded and is on the run.  Whilst this court may not use that factor on its own in determining this application for bail, the court cannot close its eyes to that development.  The risk of abscondent is assessed from an examination of the totality of the circumstances surrounding the commission of the offence.  The applicant contends that there must be uniformity in the approach to bail in that if the court grants bail to an accused arising out of the same facts, the court ought to lean in favour of granting bail.   It is my view, that in applying the principle of uniformity, the fact that a co-accused has absconded is a vital consideration in the granting or denial of bail, weighed together with other factors.

In the circumstances, I am satisfied that there are compelling reasons for the denial of bail pending trial.  The state has a prima facie case against the applicant.  Applicant has tendered a bare denial.  There is risk of abscondment.

In the result, and accordingly the application is hereby dismissed.

Nyawo Ruzive Legal Practice, applicant’s legal practitioners

National Prosecuting Authority, respondent’s legal practitioners