David Zungura v The State

### Preamble
1
HH 184-21
B 502/21
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DAVID ZUNGURA

versus

THE STATE

HIGH COURT OF ZIMBABWE

CHITAPI  J

HARARE, 8 April 2021 & 21 April 2021.

Bail Pending Trial

B Taruvinga, for applicant

V Mtake, for the respondent

CHITAPI J: The applicant applies to be admitted to bail pending trial. He is facing charges of robbery committed in aggravating circumstances as defined in s 126(1)(a)(b) of the Criminal Law (Codification and Reform) Act [Chapter 9:23] on which he was remanded in custody by the magistrate at Harare on 25 November, 2020. The applicant was co-charged with accomplices Mbonisi Ndlovu and Alex Mathew Murira. Mbonisi Ndlovu who were admitted to bail by Chinamora J on 15 February, 2021.

The details of the allegations against the applicant were that acting in connivance with his two accomplices; the applicant unlawfully entered the complainant’s house in Riverside Chitungwiza on 20 July, 2020 around 03:00 hours. They proceeded to and entered the complainant’s bedroom where the complainant was asleep. They were armed with a crowbar and a pistol. The gang fired a shot in the direction of the complainant who was screaming for help in order to silence him. One gang member hit the complainant with the crow bar and demanded for cash. The complainant pointed to his trousers where the money was. One accomplice searched the complainant’s trousers, took out the money and counted it. The money totaled US$1 100. The gang demanded for more money and threatened to kill the complainant’s 4 years old son. They fired a second gunshot which broke the bedroom window. The complainant’s wife, in fear for the lives of herself and her family advised the gang that there was some money in a handbag. The gang members stole the sum of US$2 150 which was in the handbag. In addition to the money, the gang ransacked the house and stole three cellphone handsets, two rolex watches, a Samsung 62 inch television set, an APBRO watch and Mercedes benz car keys before the gang members escaped.

Upon their remand, it was alleged that the fire-arm used in the commission of the robbery was recovered from the gang members. The spent cartridges recovered at the scene of the robbery matched test cartridges fired from the recovered fire-arm. It was averred that there were witnesses who would testify against the applicant and the co-accused in the matter. It is significant to record that the applicant did not challenge the allegations made against him. The failure by the applicant to challenge the grounds for his placement on remand implied that he agreed with the allegations or at least accepted that there was a link between him and the commission of the offence such as grounded a reasonable suspicion that the applicant committed the offence charged. The finding that there are grounds to remand the accused and to order an accused’s remand are final judgments which will not be changed by the bail judge. They can only be altered on appeal or review if there is a challenge to the magistrate’s order to place the accused on remand.

In the bail statement, the applicant averred that the prosecution evidence was very weak because the facts on which he was placed on remand did not specify which of the gang members had possession of the fire-arm on arrest. The applicant alleged that to his knowledge the fire-arm

was recovered in the possession of Mbonisi Ndlovu, his co-accused who was arrested earlier in September, 2020. The applicant averred that he is already on remand for another case and that he was charged for this offence when he was already in custody. In this regard, I should comment that the applicant did not disclose the details of the pending case. The applicant is required to disclose pending cases and provide references therefore by virtue of the provisions of s 117A(5) of the Criminal Procedure & Evidence Act which reads as follows:

“(5) 	In bail proceedings the accused is compelled to inform the court whether-

The accused has previously been convicted of any offence; and

There are any charges pending against him or her and whether he or she has been 	released on bail in respect of those charges”

In terms of the provisions of s 117A(8), if the applicant in a bail application willfully fails

or refuses to provide the information required by s 117A(5); the applicant commits an offence punishable by a fine not exceeding level 7 or imprisonment not exceeding 2 years or both. The applicant in casu mentioned in passing that he was arrested at remand prison in respect of this matter, which means that he has a pending case or cases. The applicant was required to make full disclosure of his crime record status vis-à-vis pending charges and any previous convictions. The cursory disclosure  was hardly informative and amounted to a nondisclosure for all practical purposes. I am entitled to draw an unfavorable impression of the applicant’s bona fides by his failure to make full disclosure as required by law.

The investigating officer gave evidence during the bail application. He testified that the fire-arm used in the commission of the offence was recovered from the applicant’s accomplice, Mbonisi Ndlovu at Mbonisi’s residence in Chitungwiza. The applicant was at that time at large. Police only arrested the applicant at remand prison where he was remanded in custody for other cases. He did not deny them under cross examination of the investigating officer by the applicant’s counsel. The investigating officer averred that the applicant was facing five (5) more cases of robbery committed in aggravating circumstances (armed robbery as colloquially referred to). In relation to the involvement of the applicant in the commission of the offence, the investigating officer averred that police had gathered evidence of communications in the form of the call history involved the applicant and his accomplices which showed that they were all within the vicinity of the crime scene and were in communication.

Bail was opposed mainly on the grounds of the likelihood of abscondment given the seriousness of the offence and the attended penalty upon conviction. The punishment for robbery committed in aggravating circumstances is quite steep. The court is obliged to impose a sentence of imprisonment ranging from imprisonment for life to a lesser definite term of imprisonment. There is no provision for the imposition of a fine alternative except where the robbery was not committed in aggravating circumstances. The seriousness of the offence does not on its own justify a denial of bail. There has to be other factors like the strength of the prosecution case to contend with. The court will also consider the accused’s explanation or defence which the accused alleges without necessarily proving it. It must appear that the defence is prima facie plausible. The applicant averred that he was at home with his wife and children on the day and time in question. The applicant needed to allege more. He did not give details of the home or even relate to the alleged time of the offence which was 0300 hours on 20 July 2020.

The applicant bears the burden to show on a balance of probabilities that it is in the interests of justice to admit him to bail pending trial. This is so because of the provisions of s 115C of the Criminal Procedure & Evidence Act which casts the burden aforesaid upon an accused charged with a Part 1 Third Schedule offence who applies for bail. Secondly where the State opposes bail on the ground of the likelihood of abscondment by the accused, the court in determining whether the ground of abscondment has been established is required to consider the factors listed in s 117(2) (a)(ii) as read with s 117(3)(b) of the Criminal Procedure & Evidence Act. The factors are listed as

“(i)	the ties of the accused to the place of trial

(ii)	the existence and location of assets held by the accused.

(iii)	the accused’s means of travel and his or her possession of or access to trial documents

(iv)	the nature and gravity of the offence or nature and gravity of the likely penalty therefor

(v)	the strength of the case for the prosecution and the corresponding incentive of the accused to flee

(vi)	the efficacy of the amount or nature of the bail and enforceability  of any bail conditions

(vii)	any other factor which in the opinion of the court should be taken into account.”

It is imperative that the applicant should relate to the listed factors where bail is opposed on the grounds of the likelihood of the applicant to abscond or not stand trial. The applicant did not make specific reference to the listed factors. He only averred that he was aged 30 years, married with two minor children aged 10 and 5 years old respectively. He stated that he was resident at house number 13853 Unit 0, Seke Chitungwiza since 2012. The applicant did not establish his ties to the house and hence to the place of trial. It is not known whether or not he owns the house or leases it. The nature of his tenure at the house was not established. Other than that, the other factors relevant to abscondment were not addressed yet their interrogation is what assists the court to gauge the likelihood of abscondment.

The applicant did not show on the balance of probabilities that he is a proper candidate for bail. There is reasonable cause to hold that the applicant is likely to abscond. He faces other similar charges and did not disclose them nor indicate whether he is on bail for the other offences. The grant of bail is largely dependent upon trust which the court reposes upon the applicant to appear for trial. The applicant must be forthright and candid with the court. Where the applicant fails to disclose material facts which impact upon the determination whether or not bail be granted, then the bona fides of the applicant will be doubtful and bail may not be granted in such a scenario. It is so in this case. There is also no explanation as to why the material disclosures of pending cases was not made.

Under the circumstances, there are compelling reasons to deny the applicant bail pending trial. He came nowhere near to discharge the onus to establish that it is in the interests of justice to admit him to bail. The following order is therefore made—

The application by the applicant for his admission to bail in case No HREP 10868/20 be 	and is hereby dismissed.

Tafireyi & Company, applicants’ legal practitioners

National Prosecuting Authority, respondent’s legal practitioners