Kudakwashe Mudzimuirema and Emmanuel Nerwande and Enos Muchazivepi Mapisa v The State

### Preamble
1
HCC07/22
B105/22
---------


KUDAKWASHE MUDZIMUIREMA

And

EMMANUEL NERWANDE

And

ENOS MUCHAZIVEPI MAPISA

Versus

THE STATE

HIGH COURT OF ZIMBABWE

MUZOFA J

CHINHOYI 12 and 19 May 2022

Bail pending trial

Nyenya, for the applicants

T.H. Maromo, for the respondent

MUZOFA J: The applicants are facing one count of robbery. The allegations are that on the 24th of April 2022 the applicants in the company of seven other accomplices still at large hired a silver Nissan caravan registration number ADC 7476 from one Simbarashe Jabangwe. They were armed with an unknown type of a firearm. They wore camouflage. They proceeded to a mine known as Golden Etolpacks, ARDA Endeavour Mhangura where they threatened the security guards, tied their hands and legs and took their cellphones.

The appellants proceeded to the carbon room, broke the doors and packed 400 kilograms of pregnant carbons into sacks which they loaded into the Nissan Caravan. They drove off with the loot. Along the way the motor vehicle developed mechanical problems. The applicants offloaded the sacks of pregnant carbons into a Honda Fit Registration number AFI 2763. They proceeded to Tynwald elution plant in Harare for processing of the pregnant carbons. The police, acting on a tip off raided the Tynwald  elution plant  and recovered the 400kilogrammes of pregnant carbons.

In the Form 242 and the affidavit from the investigating officer used to place the accused persons on remand, bail was opposed for the following reasons;

That the applicants have a propensity to commit similar offenses. They are wanted on two armed robbery cases under Kwekwe Rural CR 07/04/22 and 104/22 and CID Kwekwe DR 13/04/22 and 42/04/22.

The applicants are of no fixed abode since they are tenants where they reside.

The applicants are likely to abscond as they went into hiding in Gadzema mining area Chegutu.

There is overwhelming evidence against the applicants. They are likely to be convicted and sentenced to a lengthy custodial term.  This may motivate them to abscond.

When the applicants filed this application for bail pending trial in its response the State attached another affidavit recorded a month later from the same investigation officer Detective Constable Hungwe. The affidavit is generally similar to the initial affidavit

Section 115 (c) (2) (a) (i) of the Criminal Procedure and Evidence Act places the onus on a balance of probabilities on the State to show the existence of compelling reasons for denying bail in respect of offences other than those specified in the third schedule. Thus the State must justify continued pre conviction detention by placing before the Court compelling reasons.

The legislature deemed it fit to cast the onus on the applicant where an applicant faces an offence listed under Part I and Part II of the Third Schedule. In terms of s 115 (c) 2 (a) (ii) the list of offences under Part I and Part II of the Third Schedule are serious offences. The applicant shall bear the burden on a balance of probabilities, that it is in the interests of justice that he or she be released on bail. In respect of Part II of the Third Schedule offences the applicant must show that exceptional circumstances exist in the interests of justice to permit his or her release on bail.

In this case, the applicants face one count of armed robbery which is listed under Part I of the Third Schedule. The onus therefore is on the applicants to show that it is in the interests of justice that they be admitted on bail.

What constitutes the interests of justice is not defined. However, the legislature set out some of the considerations that the Court must take into account in assessing where the  interests of justice  lie in section 117 (2) of the Act. Obviously the list is not exhaustive. The Court is entitled to take into account any factor which in its opinion must be considered. The overarching consideration is to balance the interests of justice against the accused’s right to personal freedom.

Since the applicants bear the onus, the court must consider if the applicants have discharged the onus placed on them.

In their application the applicants have not shown on a balance of probabilities individually or cumulatively that it is in the interests of justice that they be admitted on bail. In their bail statement they indicate that they have fixed places of abode and they were actually arrested at their places of residence in Chegutu and deny hiding or escaping from the police.

The applicants submit that there is no evidence against them. The Court at this stage only assesses the strength of the state case. The assessment per se does not turn the bail court into a trial court. The bail court is required to assess the strength of the state case taken cumulatively with the seriousness of the offence and the likely sentence to assist the Court to consider if there is a likelihood to abscond trial motivated by the likelihood of a conviction.

The affidavit by the investigating officer lacks detail to assist the Court to come to an informed decision on where the interests of justice lie in this case. It is expected that where there are a number of applicants, the affidavit deals with issues on evidence and other issues in respect of each applicant.  I demonstrate the casual approach in this case. It is said that the accused have no fixed abode yet on the Form 242 the applicants’ addresses are indicated. It is not explained why the investigation officer is of the view that the applicants are of no fixed abode. It cannot be a basis to deny bail to an applicant because they do not own immovable property. Such an approach is not provided in the law and could surely result in an influx of pre-conviction detention since most people generally do not own immovable property.

That said, the court must assess if the applicants have established that it is in the interest of justice that they be released on bail. There is no doubt that the applicants are facing a serious offence. However seriousness of the offence alone is not a basis to deny bail. See S v Hussey 1991 (2) ZLR 187, which has been followed as good law to date. The seriousness of the offence is taken into account together with the strength of the State case. The applicants indicated that there is no evidence linking them to the commission of the offence yet the State is of the view that there is overwhelming evidence.

In my view there is ample evidence against the second applicant. There is evidence of the witness who saw the second applicant Emmanuel Nerwande driving the red Honda Fit registration number AFI 2763 which was used when Chamunorwa Mudzimuirema went to hire the Nissan Caravan. The same car was used to rescue the Nissan Caravan when it broke down carrying the pregnant carbons. The tolling information from ZINARA confirmed that at around the date of the commission of the offence the red Honda Fit passed through Lionsden tollgate which is along the way to the place where the offence was committed. When he was arrested he was found in possession of polythene strings similar to those used to tie the guards’ hands and legs. He also made indications to the police.

The same does not apply for the first and third applicants. These were implicated by the second applicant. As matters stand they have no links with the Nissan Caravan that was used in the commission of the offence. There is evidence that the motor vehicle was hired by Chamunorwa Mudzimuirema one of the accomplices still at large. The first and third applicants are not implicated. It is said they were identified by independent witnesses but clearly no identification parade was conducted. The State case stands on shaky ground in respect of the two applicants.

I agree with the submissions made for the applicants that pending matters do not show a propensity to commit similar offences. The leading case on this issue is the case of  A-G  v Siwela SC20/17.In that case the court considered a number of authorities and synthesized what the main considerations as ,

‘(a)	the credibility and substance of the evidence establishing the propensity to commit similar crimes;

(b)	the offences must be of a similar nature in their essential elements;

(c)	the offences need to be more than one or two; and

(d)	the accused is incorrigible or unrepentant.’

The evidence relied on in this case are pending cases. The applicants have not been convicted. The applicants did not commit the offences whilst on bail which may indicate the propensity to commit similar offences whilst on bail. A pending matter remains an unproved allegation. In this case the investigation officer was not helpful. When the applicants appeared for remand the same reason that they were wanted by Kwe Kwe police was stated. This was on the 27th of April 2022.The same reason was stated in the affidavit dated 10 May 2022.One wonders why they were not arrested and placed on remand in respect of those cases in April. The applicants indicated that they had no knowledge of the said cases and they were not invited to the respective Police Station in the cases. One wonders if these are real cases or if they do exist, the Police are not properly discharging their duties. This casts doubt on the evidence on propensity.

In the final analysis, the first and third applicants have shown that they have fixed places of abode and the State case is weak against them therefore they have no reason to abscond. In other words they have discharged the onus placed on them. The second applicant has failed to do so. There is evidence against him that the likelihood of a conviction is real and this can prompt him to abscond trial. The interests of justice would be compromised.

Accordingly the following order is made.

The application for bail in respect of the second applicant be and is hereby dismissed.

The 1st and 3rd  applicants are admitted to bail on the following conditions

That each applicant deposits with the Clerk of Court Chinhoyi Magistrates Court the sum of ZW$10-000

That the applicants reside at number B27 Giant Mine, ZMDC, Gadzema Chegutu until the matter is finalized.

The 1st and 3rd applicants be and hereby ordered to report at Chegutu Central Police station once every Friday between 6am and 6pm until the matter is finalized.

Matsika Legal Practice, applicants’ legal practitioners.

National Prosecution Authority, respondent’s legal practitioners.