Chamakandiwona Nyahunda v The State

### Preamble
1
HH 286-21
HACC (B) 23/21
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CHAMAKANDIWONA NYAHUNDA

versus

THE STATE

HIGH COURT OF ZIMBABWE

CHIKOWERO J

HARARE, 3 June 2021 & 11 June 2021

Bail Appeal

B. M Machanzi, for the appellant

F. I Nyahunzvi, for the respondent

CHIKOWERO J: This is an appeal against bail refusal in a matter wherein the appellant is facing one count each of smuggling as defined in s 182 of the Customs & Excise Act

[Chapter 23:02] and criminal abuse of duty as a public officer as defined in s 174(1)(b) of the Criminal Law (Codification & Reform) Act [Chapter 9:23].

FACTUAL BACKGROUND

The allegations are simply that the appellant participated in smuggling twenty-three pieces of gold. The annexure to the Request for Remand Form sets out the circumstances as follows.

The appellant resides at a certain address in Harare. He is employed by the Central Intelligence Organisation and is stationed at the Robert Gabriel Mugabe International Airport in Harare.

On 8 May 2021 he was on duty at the airport, attached to the Aviation Ground Services. His duty was to inspect and clear goods for export at the airport.

On the same day at around 0946 hours, the appellant entered the Departure Terminal wearing a jacket and pair of trousers whose pockets were visibly laden with heavy objects. Instead of using the authorised entry route, he avoided detectors fixed at the strategic points and proceeded through the Arrivals Terminals which is not allowed to be used at all when getting into the terminal.

At around 1100 hours on the same date, his accomplice (Tashinga Nyasha Masinire), (who is still at large) arrived at the airport driving a white Ford Ranger Double cab registration number AEK 3911. The accomplice disembarked from the vehicle. An unidentified passenger took charge of the vehicle and drove away.

The accomplice was carrying a visibly light bag. He went through the clearance procedures at the airport without incident. Thereafter, he proceeded to the Duty Free Shops while waiting to board a South Africa bound Air-Link Flight number 4Z105 which was due to depart at 1300 hours.

The accomplice then entered the smoking room at the waiting area. He was carrying his light bag. He was joined there by the appellant. The latter was now carrying a black satchel that appeared to be heavy.

After about two minutes, the appellant exited the smoking room. On his person was his satchel. It now appeared lighter. The accomplice later also exited the smoking room. His bag was now heavy to such an extent that he had to use both hands to lift it up when he boarded the plane.

The accomplice was arrested by the South African Police on the same day upon arrival at the Oliver Tambo International Airport for possession of twenty-three pieces of gold without an export permit.

On 12 May 2021 the police commenced investigations at Robert Gabriel Mugabe International Airport.  The following day the appellant was arrested.

The value of the smuggled gold is ZW$65 772 000 (US$ 783 000). Nothing was recovered.

Being a security officer, the appellant’s participation in smuggling the gold was inconsistent with his duty as a public officer.

THE BAIL PROCEEDINGS IN THE MAGISTRATES COURT

The respondent opposed the bail application. It led evidence from the investigating officer.

Thereafter, Counsel presented oral argument.

In dismissing the application, the court concluded that:

the respondent had failed to establish that there is a likelihood that if released on bail the appellant will interfere with witnesses.

The respondent had established that there is a likelihood that the appellant, if released on bail, will not stand his trial or appear to receive sentence.

The court’s decision to refuse bail was premised on these findings. Firstly, that the appellant is facing serious offences which attract long custodial sentences. Secondly, the prosecution had a strong case against the appellant. Since the appellant was likely to be convicted and, if that happens, the prospect of receiving harsh custodial sentences loomed large, there was a correspondingly high incentive of the appellant to flee.

The court discussed legal principles applicable in a bail application. In this regard, it referred to the Constitution of Zimbabwe Act, 2013; the Criminal Procedure and Evidence Act [Chapter 9:07] and pertinent case law.

Thereafter, it applied those principles to the grounds on which bail was opposed in light of the circumstances of the matter before it.

Its analysis led it to this conclusion. Suitable bail conditions would have sufficed to allay the state’s fears that appellant will, if released on bail, interfere with witnesses. As I have already said, bail was not denied on the basis that appellant, if released on bail, will interfere with witnesses.

Relative to the strength of the State’s case, the court acknowledged that the presumption of innocence operated in favour of the appellant. It referred to the case of Attorney-General v Phiri 1987 (2) ZLR 33 (H) for the point that the presumption of innocence must not be over-emphasised for the ends of justice would not be served if the appellant were to be granted bail when there was some “cognizable indication” that he would not abide by the conditions of the bail recognizance. In assessing the risk of abscondment, the court sought further guidance from S v Jongwe 2002 (2) ZLR 209 (S), Mbambo v S HB 168/11 as well as Aitken and Anor v AG 1992 (1) ZLR 249 (SC). Turning to the circumstances of the case before it, the court said at pp 5-6 of the judgment:

“I will start with what I perceive to be the long and short of the facts against the accused. An accomplice Tashinga Nyasha Masinire (Nyasha) is captured in the CCTV entering the airport heading to the departure section. He goes through all departure protocols and is cleared. He has nothing on him. This shows that the gold he was later found with was already inside the premises, or yet still in the possession of someone else. Nyasha proceeded to the waiting area (smoking room) where he is joined by the accused, who, from the CCTV appear to be carrying something heavy on him. The accused is seen leaving the rendezvous, this time with a light (in weight) looking bag suggesting he had deposited the contents in the smoking area. By that time, Nyasha is then seen carrying a now “heavy” bag and had to use 2 hands to carry it. Nyasha is later arrested at OT International Airport with 23 pieces of gold. The circumstances as they appear herein would clearly point towards a case of at least 2 people carrying a smuggling job, with one being the accused.

The sequence of the movements as captured by the CCTV clearly point towards a well-orchestrated and possibly well thought smuggling exercise. Though the accused denies the charge, the Court believes he ought to have given an innocent explanation of his conduct especially involving his movement past the restricted areas and his link to Nyasha in the waiting area. His silence in the face of this strong evidence would not help his case. With the above, the court, without any pre-emption agrees that the evidence for the state is quite strong. The facts before Court shows that the applicant allegedly participated in the commission of the offence. I find that the prosecution has a strong prima facie case against the applicant.”

The court found that the two offences are undoubtedly fairly serious. It married that fact to the strength of the case for the prosecution and the likelihood of a long prison term on conviction. Consequently, it found that this may induce the appellant to abscond.

Thrown into the scales in assessing the likelihood of appellant taking flight were these further factors. The gold was smuggled into South Africa. Whether that country was the intended destination or simply a transit point did not matter for purposes of the bail application. What was critical was that the appellant has refuge there should he decide to flee. Our borders are porous, rendering the surrendering of a passport an insufficient safeguard against abscondment.

Ruling out the efficacy of bail conditions in view of the totality of the material placed before him, the magistrate said:

“This is not a case that can simply be addressed by imposing so called stringent bail conditions. Whether or not a person is likely to abscond is often a matter of common sense and not just the law. There is, therefore, a high probability, owing to the above circumstances, that he will abscond if he is released on bail.”

THE ISSUES ON APPEAL

Ms Machanzi, correctly in my view, conceded that the finding by the court a quo that the offences are serious is beyond reproach.

This leaves me to determine this narrow issue.

Did the magistrate misdirect himself in a material way in finding that the state case against the appellant is strong? In the absence of a misdirection or irregularity in this regard was there an unreasonable exercise of discretion in the court’s decision refusing bail occasioning a substantial miscarriage of justice? The court’s discounting of bail conditions will also be subjected to the same test. See Aitken and Another v AG (Supra) and S v Makamba (3) 2004 (1) ZLR 367(S).

DISPOSITION

The magistrate’s finding that the prosecution has a strong case against the appellant is firmly anchored on the material that was placed before him. A reading of his judgment, the relevant portion of which I have extensively quoted, informs my position. The contents of the annexure to the Request for Remand Form, relied upon by the court below, is based on the CCTV footage. The Investigating Officer viewed that footage. There is digital evidence linking appellant to the commission of the offences. In the face of such evidence, and for purposes of determining the bail application, I do not see how the magistrate misdirected himself in exercising his discretion. Further, there was nothing outrageous in the decision that he rendered. It must not be forgotten that the appellant did not state his defence. Had he done so, the same would have been considered in assessing the strength of the case for the prosecution. He simply denied committing the offence. Yet he did not deny using the Arrivals Terminals to access the smoking room in the waiting area for departing passengers. Appellant was not arriving at Robert Gabriel Mugabe International Airport. He was already there. He did not deny entering the smoking room. The digital evidence traverses the movement of both the appellant and the accomplice at the airport and the interaction between the two. Having arrived at the airport with no gold pieces on his person the accomplice was arrested at Oliver Tambo Airport in South Africa with twenty-three pieces of gold, and this after interacting with the appellant at the Robert Gabriel Mugabe International Airport. There is no break in the chain of events. I think the magistrates court was justified in concluding that there is strong evidence, on a balance of probabilities, establishing that the appellant participated in the smuggling. The appellant is a public officer, hence he was also charged for criminal abuse of duty as a public officer.

I have already quoted the reasons why the magistrate, in the exercise of his discretion, decided that even the imposition of bail conditions would not secure the appellant’s availability for trial. I see no irrationality in that regard. There is no basis for me to substitute my own view for that of the magistrate. It was him who had the discretion, not this court.

ORDER

In the result, the appeal against bail refusal be and is dismissed.

Maruwa Machanzi Attorneys, appellant’s legal practitioners

The National Prosecuting Authority, respondent’s legal practitioners