Given Mupambirei v The State

### Preamble
1
HH 357-21
B 1095/21
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GIVEN MUPAMBIREI

versus

THE STATE

HIGH COURT OF ZIMBABWE

FOROMA

HARARE, 17 June and 8 July 2021

Bail application

B. Mupwanyiwa, for the appellant

S. Maunganidze, respondent

FOROMA J: This is an appeal against the decision of the Harare magistrate’s Court in terms of which the appellant was denied bail. Appellant was charged with unlawful entry into premises in aggravating circumstances as defined in s 131 (1) (a) of the Criminal Law (Codification and Reform) Act [Chapter 9:23] as read with s 131 (2) (e) of the said Act. The allegations were that on the 13th October 2020 the appellant unlawfully intentionally and without authority from Mahmud (complainant) entered using duplicate keys to open the locked warehouse and stole property therefrom consisting of coffee mugs, dinner plates, water glasses, flasks, forks, table spoons, carpets, satchels and travelling bags and washing baskets worth US$12 000. According to allegations in the request for remand (Form AZRP 242) the applicant and his accomplices (still at large as at the time appellant  was placed on remand) were caught by the CCTV Footage committing the crime and some of the stolen property was recovered from the accused persons and was positively identified by the complainant.

Applicant’s application for bail was successfully opposed by the State (respondent) and the court a quo’s reason for denying appellant bail was that the applicant was likely to abscond. It is appropriate to quote the relevant and dispositive paragraph of the court a quo’s ruling-“Unlawful entry into premises being a serious offence and prospect of an effective custodial sence being there accused can be motivated to abscond and flee from the court’s jurisdiction that makes accused not a proper candidate for bail” In short the court found the appellant to be a flight risk.

Dissatisfied with the ruling of the court denying appellant bail the appellant noted an appeal against the court’s ruling. The grounds of appeals were crafted as follows

The court erred at law in denying the accused person bail when there was no sufficient evidence to substantiate the existence of cogent and compelling reasons to deny him bail.

The court a quo erred at law in denying the accused person bail on the sole account of the seriousness of the offence alleged against the accused person.

The court a quo erred at law in concluding albeit without justification that the accused was not a proper candidate for bail.

It is significant to note from the first instance that an appeal court can only interfere with the court a quo’s decision refusing an appellant bail pending trial on two grounds namely misdirection and/or irregularity. This is because the court of appeal cannot and ought not without justification seek to substitute its own discretion for that of the lower court as the grant or denial of bail by the magistrate’s court (or court a quo) is a matter of the exercise of discretion by the judicial officer.

Appellants noting appeals against refusal of bail should always be mindful that their grounds of appeal should aver either misdirection or irregularity. An allegation in the ground of appeal that the court erred at law raises an invalid ground of appeal at law. Any error of law must therefore be averred as a misdirection for the ground to be valid.

Ground one suggest that the court a quo dismissed the appeal on the sole ground that the charge against accussed (appellant) was serious. If such were the facts then indeed the court would have misdirected itself as indeed on the authority of S v Hussey 1991 (2) ZLR 187 (S) the seriousness of the offence alone cannot be a basis for denying an accused bail. In reality however and as is clear from the reasons for denying bail as quoted the above court  found that the offence was serious and the prospect of imprisonment existed thus the accused could be motivated to abscond for the prospect of imprisonment exists only when the state case is strong. In his submissions at the hearing of the appeal appellant’s counsel criticized the learned magistrate for finding that the appellant had been found in possession of some of the stolen goods. In other words he attacked the finding that the state case in his view was strong as it was based on an erreneous finding that stolen goods identified by the complainant were found in appellant’s possession.  Counsel reasoned thus-police details i.e. Simeon Sandati in an application for further detention testified that extension of detention was required to enable police to search appellant’s premises for the stolen property whereas Detective Sergeant Mtisi at the bail application testified that police had recovered substantial stolen property from the appellant. These were apparently inconsistent positions by police according to applicant’s counsel which the court ought to have used as a basis for dismissing the claim that the State’s case against the appellant was strong. Counsel considered his argument to be fortified by the fact that there could have been no recoveries as alleged by Sergeant Mtisi regard being had to the fact that immediately the application for extension of applicant’s detention had been dismissed appellant had been placed on remand (in terms of Form 242 which contained an allegation that some of the stolen property had been recovered from the accused person) which allegation counsel considered could not possibly have been true as Simeon Sandati had just testified in the dismissed application for further detention that they wanted appellant’s detention extended in order to search his premises where the stolen property was believed to be hidden. Counsel’s argument is not supportable on the evidence on record. A perusal of the record of the hearing of the application for the extension of appellant’s detention which application was dismissed shows that Simeon Sandati in his evidence in chief said “I wish to further detain accused it is because after arresting the co-accused we had established that the bulk of stolen property was hidden by accused at his place of residence to whom he refused to give details.” As applicant had objected to indications presumably including search of his premises) no recoveries had as yet been done. Sandati’s evidence quoted above was led on 5 May 2021. That evidence does not mean that no recoveries had been made at all as at the time of the hearing of the appellant’s bail application at which Sergeant Mtisi testified to recovery of some property. Defence counsel made the wrong conclusion that any recoveries ought to relate to recoveries as at or before 5 May 2021. The learned magistrate found that recoveries that Sergeant Mtisi referred to were made between 5 May 2021 and 7 May 2021 bearing in mind the police had indicated that “property was then recovered before accused was brought for bail application.” For the avoidance of doubt the learned magistrate in his ruling commented as follows – “Here State insists that it has a strong case since some property was recovered. The Investigating Officer is the one who is saying that. The officer who gave evidence during application for further detention had indicated they wanted to recover property which application was dismissed. The investigating officer then indicated that property was then recovered before the accused was brought for bail application. That is understandable”. Out of an extra abundance of caution I observe that appellant’s remand in custody took place on 5 May 2021 and his bail application took place on 7 May 2021 and it is between the two dates that recovery of property relied upon by the State (for the contention that the State case was strong as testified by Sergeant Mtisi) took place. Clearly therefore appellant’s criticism of the court a quo is misplaced. No misdirection has been proved on the part of the court a quo.

In the circumstances the court a quo was well justified in the finding that the prospects of a custodial sentence existed thus making appellant not a proper candidate for bail. The appeal is accordingly without merit and it is hereby dismissed.

Mufadza & Associates, appellant’s legal practitioners

National Prosecuting Authority, respondent’s legal practitioners