Douglas Mutenda v The State

### Preamble
1
HH 80-21
B 118/21
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DOUGLAS MUTENDA

versus

THE STATE

HIGH COURT OF ZIMBABWE

CHITAPI  J

HARARE 27 & 29 January 2021, 4 & 2 March 2021.

Appeal Against Order Revoking Bail

C Maheya, for the Appellant

T Mapfuwa, for the  respondent

CHITAPI J: The background to this matter is that the appellant appeared before the magistrate at Harare on initial remand on 12 October, 2020. He was co-charged with an accomplice, one, Carrington Marasha. The two were facing allegations that they committed two counts of the offence of “Armed robbery” as defined in s 126 of the Criminal Law (Codification and Reform Act, [Chapter 9:23]. I should pause briefly to observe that there is no offence in the Criminal Law (Codification and Reform) Act called “Armed Robbery”. In terms of s 126 of the said Act, the offence is described as:

“126	Robbery

(1)	Any person who steals or does any act constituting the crime of unauthorized borrowing 			or use of property shall be guilty of robbery if he or she intentionally uses violence or the threat of immediate violence-

(a)	immediately before or at the time he or she takes the property, in order to induce the person 		who has lawful control over the property to relinquish his or her control over it; or

(b)	immediately after he or she takes the property, in order to prevent the person who had 			lawful control over the property from recovering his or her control

(2)	A person convicted of robbery shall be liable

(a)	to imprisonment for life or any definite period of imprisonment, if the crime was committed 		in aggravating circumstances as provided in subsection (3) (own underlining); or

(b)	in any other case-

(i)	to a fine not exceeding level fourteen or not exceeding twice the value of the 				property that forms the subject matter of the charge; whichever is the greater; or

(ii)	to imprisonment for a period not exceeding fifty years;

or both

Provided that a court may suspend the whole or any part of a sentence of imprisonment for 		robbery on condition that the convicted person restores any property stolen by him or her 			to the person deprived of it or compensates such person for its loss

(3)	For the purposes of subsection (2); robbery is committed in aggravating circumstances if 			the convicted person or an accomplice of the convicted person-

(a)	possessed a fire-arm or a dangerous weapon; or

(b) 	inflicted or threatened to inflict serious bodily injury upon any person; or

(c)	killed a person on the occasion of which the crime was committed.”

There is therefore no crime called “armed robbery” or “plain or ordinary robbery.” The crime is called robbery. It is robbery committed in aggravating circumstances if any one or more of the circumstances outlined in subs (3) of s 126 are shown to be present in the commission of the robbery. Where one or more of the circumstances noted in subs (3) aforesaid are present, the charge should allege the commission of robbery as defined in subs (1) (a) or (b) as the case may be as read with subs (3) (a) (b) as the case may be of  section 126 of the Criminal Law Codification and Reform Act. The distinctions I make are important because in terms of s 70 (1) (b) of the constitution, any person accused of an offence must be “informed promptly of the charge (own underlining) in sufficient detail to enable the person to understand the charge. “The magistrate has a duty to inform the accused of the charge for which a remand is being applied for by the prosecutor at the initial remand hearing. The form 242 if it is used as the basis  for seeking the remand of the accused should properly describe the offence as it is described in the Criminal Law (Codification and Reform) Act or any other statute which creates the offence. The accused must at all times be made aware of the correct charge on which he or she is brought before the court on initial remand. Such awareness having been brought to his attention, the accused will be placed in a position to informatively consent to the remand or challenge it as he or she is entitled to. See S v Blumears 1991 (1) ZLR 118 (S); Martin v Attorney General & Anor 1993 (1) ZLR 153 AT 159.

I acknowledge that I have digressed to comment on the correct formulation of the charge of robbery. The digression is justified in my view because the whole record of the magistrates court wherein the anomaly is noted constitutes the appeal record which I have to deal with in this appeal. Secondly, the duty of the judge to exercise review powers over magistrates court proceedings are exercisable whenever it comes to notice of the judge that an irregularity which may adversely impact on the rights of the accused as constitutionally provided has occurred. It is necessary as well that judges develop our jurisprudence and this cannot be done by disregarding apparent irregularities  in record which is before the court and letting them pass. The digression I have made will hopefully ensure that the magistrate concerned and others, police and counsel are informed on the proper citation and description of the charge of robbery. The appellant was not prejudiced by the misnomer because the detailed allegations in the form 242 on which a remand was granted reveal the aggravating circumstances in the commission of the robbery being the use of firearms. Additionally the appellant applied for bail on the wrongly cited charge before chikowero j in the bail application which was granted, the details of which I will allude to later.

Reverting to the background of the matter, the appellant and the accomplice having appeared before the magistrate on initial remand on the aforesaid charge were duly remanded in custody. The details of the allegations for which they were placed on remand were that on 5 April, 2020 the two in the company of nine accomplices whilst they or their accomplices were armed with fire arms unlawfully gained entry into Mashwede Towers, in Arcadia Harare where they overpowered security details on guard, broke into offices and stole cash and other property including a pistol.

The appellant in consequence of the remand having been granted filed an application for bail pending trial to this court. The application was granted by Chikowero j under case No. B 2086/20 on 9 December, 2020. The bail order was in respect to three cases under case Nos.  CRB 9202/20; CRB 9204/20 and 9207/20. It is not clear to me on the papers why this was so. The bail conditions imposed on the appellant were as follows:

“(a)	He deposits RTGS$5 000 with the Clerk of Court, Harare Magistrates Court.

(b)	He resides at 24 Sebakwe Road, Glen Norah B, Harare until this matter is finalized

(c)	he reports at Glen Norah station every Friday between 6:00 am and 6:00 pm

(d)	he does not interfere with any state witnesses.”

Having been released on bail, the appellant was supposed to attend court  at Harare Magistrates Court on dates he was ordered to appear for subsequent remands and ultimately trial. It is common cause that the appellant defaulted court attendance on 17 December, 2020 which date was eight days after the grant of bail by chikowero j. The magistrate before whom the appellant was supposed to appear issued a warrant for the arrest of the appellant and for the appellant to be brought before the magistrate to enquire into the reason for the appellant’s default. The appellant was in due course arrested in Mhondoro on 24 December, 2020. On 28 December, 2020, the appellant was brought before the magistrate who enquired into the default. On 29 December, 2020, the magistrate after considering the submissions made on the appellant’s behalf by his legal practitioner and by the prosecution on the States behalf, determined that the appellant had willfully defaulted court. The operative part of the magistrate’s judgment read as follows:

“His default was willful. His warrant of arrest is confirmed and he is henceforth remanded 	in custody. The state will do the necessary procedures to have the High Court estreat his bail 	money.”

I again digress briefly to comment on the magistrates order as regards its reference to giving a directive to the State to carry out procedures for the High Court to estreat the appellant’s bail deposit. The directive is not necessary and has no legal basis. In this respect it is necessary to refer to s 133 of the Criminal Procedure and Evidence Act. It reads as follows:

“133	Provision in case of default in conditions of recognizance

If it appears to the judge or magistrate who admitted the accused to bail that default had 			been made in any condition of the recognizance or if it appears to a judge or magistrate of 		the court before which an accused has to appear in terms of any recognizance that default 			has been made in any condition of such recognisance, such judge or magistrate may-

(a)	issue an order declaring the recognizance forfeited and such order shall have the effect of 			a judgment on the recognizance for the amounts named against the person admitted to bail 		and his sureties respectively

(b)	issue a warrant for the arrest of the person admitted to bail and afterwards upon being 			satisfied that the ends of justice would otherwise be defeated commit him when so arrested 		to prison until his trial.”

From the quoted provision the judge or magistrate before whom the accused has to appear in terms of the bail recognizance can exercise the powers given in subs (a) and (b) of s 133 aforesaid. It does not matter that bail was granted by the High Court in regard to the exercise of the powers aforesaid. The magistrate in this case had jurisdiction to order forfeiture of the bail deposit notwithstanding the fact that the bail deposit had been ordered by a judge of the High Court as part of bail conditions granted by the High Court. Forfeiture of the recognizance if granted as a final order and is appealable. Forfeiture may only be ordered after due enquiry and upon the magistrate being satisfied that it is in the interests of justice to order forfeiture. The bail recognizance may where the interest of justice dictate so, be remitted by the  Prosecutor General in terms of s 134 of the Criminal Procedure and Evidence Act. In casu, the question of forfeiture or estreament of bail will be referred back to the magistrate to make a determination thereon. The referral back to the magistrate does not unless this appeal succeeds affect the order of confirmation of the warrant of arrest and committal of the appellant into custody which is subject of this appeal.

Reverting to the issue which I must determine, the appellant was not satisfied by the order to revoke the appellant’s bail, hence this appeal. The appeal papers are drafted in a clumsy and inelegant manner. The appellant starts by making submissions of law and fact as appears in paras 3 -6 of the appeal papers. The appellant thereafter in para 7 purports to allege a misdirection by the magistrate in a very circuitous, serpentine and argumentative manner. A ground of appeal should be clear and concise. A ground of appeal which is not clear and concise is invalid and would ordinarily result in the notice of appeal being declared so and the appeal struck off the roll. The Supreme Court judgment per Garwe JA in Dr Norbert Kunonga v The Church of the Province of Central Africa SC 25/17 is very instructive on the issue of the requirement that grounds of appeal should be clear and concise. A number of past decided cases are cited therein. The appellant’s counsel is advised in future to separately list grounds of appeal without punctuating them with argument. The individual grounds of appeal should then be developed and motivated in turn in argument. The two should not be conflated or fused.

Notwithstanding the clumsy manner in which the purported first ground of appeal was drafted, I will not declare it invalid. I have exercised a discretion in the interest of justice to make out what the appellant’s criticism of the magistrate’s judgment is. I should also not be misunderstood as laying a rule that where a ground of appeal is circuitous, the judge in exercising appeal powers in a bail appeal is obliged to make out what the appellant’s criticism of the judgment is. I am motivated to act as I have done by the need to ensure that the interests of justice are served given that bail relates to pre-trial incarceration of a person who is presumed innocent until proven guilty. The taking of a person’s liberty pre-trial is a delicate and sensitive issue and courts must always be alive to the balance between the individual’s right to liberty and the need to ensure the smooth administration of justice. In regard to the approach I have adopted I do so persuaded by the remarks of curlewis ja in R v Hepworth 1928 AD 265 at 227 where the learned judge stated obiter dictum

“A criminal trial is not a game.. and a judge’s position … is not merely that of an umpire to see that 	the rules of the game are observed by both sides. A judge is an administrator of justice, he is not 	merely a figurehead, he has not only to direct and control the proceedings according to recognized 	rules of procedure but to see that justice is done.”

It is a fundamental principle of the law that justice must not just be done but it should be seen to be done by all concerned in the proceedings, the accused, now appellant being the prime focus. I was also motivated to adopt the robust approach to determine this appeal on the merits in that the High Court of Zimbabwe (Bail Rules) 1991 are themselves not specific on the procedure for appeal in relation to orders for revocation of bail. There is therefore no instrument in place which is specific to the nature of the appeal before me. Lastly I was additionally motivated to adopt the approach I took after considering the provision of s 165 (1) (c) of the Constitution which provides as follow

“165	Principles guiding judiciary

(1)	In exercising judicial authority, members of the judiciary must be guided by the following 		principles-

(a)	……..

(b)	………

(c)	the role of the courts is paramount in safeguarding human rights and freedoms and the rule 		of law.”

I therefore considered it appropriate despite the inelegantly  drafted grounds of appeal to determine whether or not the magistrate was correct or misdirected herself in revoking the appellant’s bail thereby taking away his freedom.

The appellant’s criticism of the magistrate ‘s decision was firstly that the magistrate erred in fact in making a finding that the appellant had relocated to Mhondoro with his two wives because neither the appellant’s counsel or the prosecutor had asserted so. This much appears from the distillation of the circuitous and argumentative submission made in para 7 of the appellant’s appeal papers. Secondly the appellant alleged that the magistrate misdirected herself in failing to appreciate that the onus to verify that the appellant’s address existed was with the police. Thirdly the appellant alleged that the magistrate erred in her finding that the appellant should have produced proof of the death of his child whom he alleged to have gone to bury resulting in his failure to attend court, without the magistrate asking for such proof from the appellant. The appellant lastly alleged that the magistrate ought to have found that the appellant was not in willful default and cancelled the warrant of arrest leaving the bail to stand.

The respondent’s counsel in his response submitted that the magistrate was not misdirected in fact or law to make a finding that the appellant was in willful default because the appellant did not inform the police of his inability to attend court nor surrender himself to the police until his arrest. Counsel pointed out that the appellant was arrested a week after defaulting his court attendance. Counsel argued that the magistrate properly exercised her discretion to commit the appellant to prison as the appellant had defeated the ends of justice.

The details of the default enquiry were simple to comprehend. The appellant defaulted court on 17 December, 2020. He was arrested a week later at a business centre in Mhondoro. He claimed through his counsel that Mhondoro was his rural home. The appellant again through counsel submitted that his son fell ill in Bocha and upon his release on bail on 10 December, 2020 he went to Bocha. The child died and the appellant remained in Bocha to arrange for and superintend the burial of his son. There was poor network but he contacted his legal practitioner to attend court on his behalf to explain to the court the appellant’s absence on 17 December, 2020. The appellant again through submissions by his counsel averred that he resolved to attend court after the holidays. I assume its Christmas holidays.

The state called evidence from a police officer involved in the investigations. He testified that the appellant defaulted court following which a warrant for his arrest was issued. The officer stated that although the appellant was ordered in terms of the bail order to reside at 24 Sebakwe Road, Glen Norah B, until the matter was finalized, the appellant did not abide the condition as he was traced to Mhondoro and arrested there. He also testified that the appellant did not report to Glen Norah police station as ordered every Fridays. An affidavit by a police officer in charge of the reporting persons register at Glen Norah police station was produced by consent. Therein, the officer stated that the appellant did not report to the police as he was supposed to. I have noted that if appellant was released from prison upon depositing bail on 10 December, 2020 which was a Thursday, he was required to report to the police station on the following day which was Friday, 11 December, 2020. He also did not report on the following Friday, 18 December, 2020.

The police officer further testified that the appellant was arrested in Mhondoro following information obtained by the Police Special intelligence Unit. An affidavit deposed to by a police officer who was part of the team which arrested the appellant was produced by consent. The police officer deposed that they arrested the appellant at his house situated at Monera Growth point in Mhondoro. The appellant tried to resist being handcuffed but was subdued and handcuffed before being brought to Harare. The police officer deposed further that the appellant had relocated to Mhondoro with his two wives as one of them grew up in the area. The appellant intended to open a shop. He was arrested three days after he arrived in Mhondoro. The appellant was alleged to have carried his property with him to Mhondoro from Harare.

It was also the testimony of the witness that he checked for the house No. 24 Sebakwe Road Glen Norah B where the appellant was ordered to reside in the bail order but there was no such address. It was upon the failure to locate the address that focus was turned to searching for the appellant elsewhere. The appellant’s legal practitioner in cross examination suggested that the address was in Glen Norah C and that the appellant had been arrested at that address on initial arrest. The witness responded that the address was non-existent.

The appellant did not testify in the default enquiry. He was ill advised not to testify. The appellant had defaulted court. The onus was upon him upon a balance of probabilities to show or prove to the magistrate that he was not in willful default. The appellant was required to advance a reasonable and probable explanation for the default. The explanation given should be reliable and be based on proven facts. In the case of S v Bruintjies 2003 (2) SACR 575 (SCA) at p 577 para 7, Shongwe AJA when dealing with a bail appeal noted as follows:

“(f)	the appellant failed to testify on his own behalf and no attempt was made by his counsel to 		have him testify at the bail application. There was thus no means by which the court a quo 		could assess the bona fides or reliability of the appellant save by the say-so of his counsel”

The same can be said about the default enquiry proceedings held before the magistrate subject of this appeal. Counsel for the appellant made submissions not backed by facts or evidence. The state counsel led sworn oral evidence given by a police detail. Affidavits were produced sworn to by the records police officer to prove that the appellant did not report to the police and the other affidavit detailing how the appellant was arrested. Without the appellant giving evidence in rebuttal, there was no means to assess the bona fides of the over the bar submissions made by the appellant’s counsel.

The magistrate accepted the State witness evidence that the appellant did not report to the police station as ordered by Chikowero J. The appellant also relocated to Mhondoro and was arrested there. The magistrate found that there was no evidence placed before her as proof that the appellant’s child died. The magistrate took note of the appellant counsel’s submissions that the appellant instructed counsel to appear at court on 17 December, 2020 and explain the appellant’s predicament. The appearance of counsel would in my view not discharge the onus on the appellant to show that he was not in willful default. A credible explanation was still required to be given to the court by the appellant on enquiry. Counsel does not substitute the accused for purposes of court appearance. Counsel’s appearance was simply to relay a message from the appellant  about the appellant failure to attend court. The default by the physical absence of the appellant remained a fact despite counsel’s appearance. The magistrate also found that the appellant did not comply with the order for him to reside at 24 Sebakwe: Glen Norah. In this regard the appellant even assuming that he resided at the disputed address if it exists, and that he indeed had a funeral of his child to deal with, needed to seek leave of the court to reside wherever the funeral was to be held if it was a different place. If seeking an urgent variation in that regard was not feasible, the appellant could at least have visited the police station at which he was required to report to explain his temporary absence from the residence as well as the concomitant impossibility of reporting to the police as ordered in the bail conditions. Such actions would have shown the appellant’s bona fides and that he did not intend to deliberately breach his bail conditions

The magistrate therefore found the State evidence to be credible and without evidence from the accused in rebutta, it was proper for the magistrate to conclude that the appellant was in willful default. There was no credible evidence adduced by the appellant to support his acclaimed reasons for default. It follows that the criticism that the magistrate erred in finding that the appellant had relocated to Mhondoro has no merit because the applicant did not give evidence to the contrary. In any event even if the appellant did not relocate to Mhondoro, he was still in breach of the residence condition because he was supposed to stay at 24 Sebakwe Glen Norah house. He resided in Mhondoro whether by reason of a visit, funeral or otherwise for whatever period, without the leave of the court. That resolves the issue of breaching the residence condition. It is not necessary to delve into the issue of who had the onus to verify the residence of the appellant as submitted by appellants Counsel. All that needs to be said is that the appellant was not in Harare when police were looking for him, and arrested him. He was in breach of the residence condition and no argument should arise on that.

The ground of appeal that the magistrate erred in making a finding that the appellant should have produced proof of the death of his child has no merit. The State proved that the appellant defaulted court on 17 December, 2012. The State led evidence to support its assertion that the default was wilful. It is the appellant who averred that the default was not wilful. The appellant relied on an occurrence or event which made it impossible for him to attend court. The event relied upon by the appellant was the alleged death of his son. He who avers must prove. The appellant bore the evidential onus to prove on a balance of probabilities that he was not in wilful default but was burying his son on the date that he should have been at court. The magistrate was entitled to regard the failure by the appellant to lead evidence or produce any documentary evidence of the death of the alleged child as indicative of the fact that the appellant’s’ story was false. The appellant is not justified to claim that he was not given an opportunity by the magistrate to produce the proof. There is nowhere on record to indicate that the appellant offered to produce the documentary evidence if given a chance to do so. The appellant’s counsel who inadvisedly did not lead evidence from the appellant did not find it necessary to request for time to produce the proof. The magistrate cannot be faulted in her findings that the appellant was in willful default. From an analysis of all the facts and circumstances of the case, no other finding other than one that the appellant was in wilful default would have been justified. The appellant decided to default court, reside in Mhondoro and to default reporting at the police station as ordered by the court. The applicant’s situation was not desperate. He could have advised police of his predicament. He did not have to wait to be arrested.

In the result, the appeal has no merit. The magistrate’s judgment cannot be impugned. The judgment was well reasoned by the magistrate after taking account of the facts, evidence and probabilities. The appeal must be thrown out. Resultantly I make the following order-

The appeal against the order of revocation of bail made by the magistrate on 29 December, 2020 to revoke the bail order granted by Chikowero J in case No. B 2086/20 and in relation to case No. CRB 9202/20; CRB 9204/20 and CRB 9207/20 is hereby dismissed.

Through the exercise of the review powers of this court as provided for in s 29 (4) of the High Court Act, [Chapter 7:06], the following part of the magistrate’s order is set aside and must be deleted-

“The state will do the necessary procedures to have the High Court estreat his bail money.”

Maseko Law Chambers, appellant’s legal practitioners

National Prosecuting Authority, respondent’s legal practitioners