Donald Magaya & 5 Ors v The State

### Preamble
1
HCC 59/24
REF: CRB NO. KADR 125-31/24
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DONALD MAGAYA

And

HONEST MAPISA

And

TAKUNDA JENA

And

INNOCENT CHAFERA

And

NIGEL MANYANYE

And

NOREST NYAKUENDA

Versus

THE STATE

HIGH COURT OF ZIMBABWE
MUZOFA J
CHINHOYI, 2 July 2024

Appeal against refusal of bail

T Mutonhori & ET Mujaya for the appellants

K Teveraishe for the respondent

MUZOFA J:

I dismissed this appeal against refusal of bail by the Regional Magistrate sitting at Kadoma Magistrates Court in an ex-tempore judgment. A request for the written reasons was made. These are they.

The appellants appeared before the court a quo on initial remand. They face a charge of contravention of s60 A (3) (b) of the Electricity Act (Chapter 13:19). It is alleged that between 30 March and 14 April 2024 at Ngwati Shaft, Zimplats Kadoma, the appellants in the company of two others who were granted bail unlawfully cut 419 metres of armoured copper cables weighing 2 572kgs whose value is US$45 360. It was all recovered.

An application for bail pending trial was made. It was opposed by the State.

After hearing both parties’ submissions the court aquo dismissed the application on the basis that they are likely to abscond. It found that the combined fact of the seriousness of the offence which attracts a lengthy custodial sentence and the strong State case provided strong impetus to abscond. It relied on the case of State v Madzokere SC 69/21 for the proposition. Secondly it also found that the applicants upon arrest tried to abscond.

Dissatisfied by the decision, the applicants approached this court on appeal on the following grounds;

i.  The Court a quo erred at law and in fact in refusing the 1st to-7th Appellants bail on the basis that the state case against them ‘appears’ to be strong yet no evidence was led to that effect and the allegations are simply averments in the charge sheet and outline of state case.

ii. The Court a quo erred at law in discarding the Appellants’ defence and rubberstamping the state case, thus ending up denying appellants bail on such misdirected basis.

iii. The finding of whether or not the cables were for transmitting electricity being a triable issue ought to have motivated the court aquo in leaning in favour of granting bail.

iv. The court aquo erred in denying appellants bail on the basis that the seriousness of the offence will induce them to flee.

v. A fortiori, the court aquo cardinally erred and grossly misdirected itself in not applying parity in its treatment of the accused persons.

The Law

As an appeal court, this court can only interfere with the court a quo’s decision under limited conditions. In AG v  Siwela SC20/17 the court had this to say on the powers of an appeal court;

“The power of this court to interfere with the decision of the court aquo in an application for bail is limited to instances where the manner in which the court aquo exercised its direction is so unreasonable as to vitiate the decision made. See State v Ncube 2001 (2) ZLR 556 (S). Another ground for interference with the decision of a court aquo is the existence of a misdirection occasioning a substantial miscarriage of justice by the court aquo. State v Makombe SC 30/04”.

Later in Mwamuka v The State SC 69/21 the Supreme Court reinforced the basis of interfering with such a decision and noted:

“It is trite that this court will interfere with a decision of a Judge of the High Court in a bail application only if the Judge a quo committed an irregularity or misdirection or exercised his or her discretion so unreasonably or so improperly as to vitiate his or her decision. See Remember Moyo & Ors v The State SC 106/02. Citing with approval State v Chikumbirike 1986 (2) ZLR 145 (S) @ 146 E-F, State v Barber 1979 (4) SA 218 (D) @ 220 E-G”.

From the decided cases , then an appeal court can only interfere where the court aquo;

Misdirected itself regarding principles applicable in bail applications.

The exercise of its discretion is so unreasonable to vitiate its decision.

An appeal court cannot set aside the decision for the mere reason that if it had presided over the matter it could have granted the bail. There must be a misdirection to justify interference.

As regards a misdirection or an irregularity it must be such that it results in a substantial miscarriage of justice. Not every misdirection leads to an interference.

In respect of the exercise of discretion, it is trite that an appeal court is slow to interfere with a court aquo’s exercise of discretion. The misdirection must be so unreasonable or improper to vitiate the decision.

Bearing in mind the said principles I address the grounds of appeal in seriatim.     The Evidence

The 1st ,2nd ,3rd & 4th  shall be addressed jointly as they relate to the adequacy of evidence before the court. The issue for determination is whether there was enough evidence before the court aquo to make a finding on the strength of the State case.

The State had the onus to establish compelling reasons to deny bail. This onus could only be discharged by establishing any of the factors set out in s117 (2) (a) of the Criminal Procedure and Evidence Act (Chapter 9:07). Since the basis of opposing bail was the likelihood to abscond the Court aquo was required to zero in on s117 3 (b) of the Act. The court aquo ably ventilated the relevant provision as provided.

The State led evidence from the police officer Levison Banda. His evidence was that the appellants were spotted by the mine’s drone system. The police were alerted and they were arrested at the scene of crime. They did not controvert this. They had an explanation that the property was abandoned and they were just collecting scrap material.

The court aquo reasoned that was prima facie evidence strong enough for purposes of making a decision on bail. It did not end there, it had its pulse on the proper approach in such cases, for the strength of the State case alone is not a reason to deny bail. The court must consider that reason in view of the possible sentence. Where a sentence of a fine is likely to be imposed, even if the accused is arrested in flagrante delicto denying bail would be a misdirection, where no other cogent reasons exist. The assumption is that a non-custodial sentence cannot enthuse a reasonable person to abscond.

In this case the court considered that the likely penalty is a minimum of 10 years. It is a long custodial sentence. Resultantly, the length of the likely penalty and the strength of the State can cause the appellants to abscond.

In my view the court had adequate evidence before it, which was not controverted by the appellants. The court applied the law as provided. It did not misdirect itself. It is not correct that the State simply rubber stamped the allegations on the State papers. Evidence was led and tested under cross examination. The court accepted that evidence.

That there was no assayer’s report therefore it was unknown what the appellant had loaded in the motor vehicles is not sustainable. When the appellants were placed on remand, they did not challenge placement. That in my view is a concession in a way that prima facie they were dealing with copper cables. The record of proceedings shows that the investigating officer was cross examined about the assayer’s report, and proof of whether the cables were copper cables.

In my view, if the complainant reported missing copper cables that transmit electricity, and the appellants were found with cables that passes the test at this stage. It should always be borne in mind that bail proceedings are not trial proceedings. It is regrettable that the courts are increasingly hearing legal practitioners calling for evidence that amounts to proof beyond a reasonable doubt in bail proceedings which invariably obliterates the two procedures.

Besides the finding on the strength of the State case the court aquo also made a finding that the applicants attempted to flee when accosted by the police at the scene. This finding was not challenged even on appeal.

The grounds of appeal lack merit.

The parity principle.

The 5th ground of appeal raises the issue whether the court a quo failed to properly apply the parity principle. The parity principle requires that like cases be treated the same and by parity of reasoning co offenders must be treated alike.

This principle must not be overstretched. It is only applicable where the circumstances are similar. In this case the appellants failed to show that their circumstances were similar to those two that were granted bail. The court aquo competently addressed the issue. It noted that the two accused persons were employed by a certain company as drivers. They were simply conducting their duties to transport goods for the appellants. Thus, the court found them not linked to the offence. Whether the finding was correct or not, those circumstances distinguished them from the appellants. The 1st and 2nd appellants were employed by the complainant. The others were not. They loaded the cables. They did not deny that. They did not even allege that they did that on behalf of someone.

It is for the above that the appeal was dismissed.

Mutonhori Attorneys, the appellants’ legal practitioners

National Prosecuting Authority, the respondent’s legal practitioners.