Jainos Mushoriwa Sengweni v The State

### Preamble
1
HH 117-21
B 1945/20
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JAINOS MUSHORIWA SENGWENI

versus

THE STATE

HIGH COURT OF ZIMBABWE

FOROMA J

HARARE, 26 February 2021 & 19 March 2021

Bail Application pending trial

N Chikono, for the applicant

D. H Chesa, for the respondent

FOROMA J: The applicant is charged with contravention of s 126 of the Criminal Law Codification and Reform Act [Chapter 9:23] i.e. to say robbery of a motor vehicle. The summary of the allegations is that on 29 July 2020 applicant and an another robbed complainant of his Toyota Sienta Vehicle Registration No. AEV 7893 engine No IN26665781 with chassis No NCP 810104251 which complainant used as a pirate taxi after pretending to the complainant that they wanted to be taken to some address in Waterfalls Harare. The robbery allegedly   took place in the night as a result of which complainant could not identify his assailants. Applicant was arrested in possession of the complainant’s vehicle at Gutu. He claims that he was sold a stolen vehicle unbeknown to him since it had recently been imported into the country by the seller.

Applicant on arrest was remanded in custody. He applies for bail which bail is opposed by the respondent on the basis that the charge against him is not only serious but attracts an imprisonment sentence on conviction which conviction the respondent considers to be inevitable as the case against him is solid. The respondent called the investigating officer one Jezel Tonderayi Takabinga to testify in support of the grounds of opposition to bail. The Investigation Officer’s evidence confirmed the robbery having taken place in the night and for that reason complainant could not identify his assailants. He further testified that the accused could not lead police to the alleged seller and that on arrest he could not produce any agreement of sale or evidence of ownership. On being asked to take police to the address where the transaction took place applicant could not do so. Instead he claimed that he was introduced to the seller by an acquaintance whom he could also not bring to the police.

The claim by applicant that the vehicle was not registered betrays a guilty mind. How could he purchase an unregistered vehicle and part with good money without clearing the vehicle with the police. Besides if he had believed that the vehicle had recently been imported into the country he should have insisted on evidence of such importation such as customs clearance documents. It is also significant to note that the accused did not produce evidence that he paid any amount to the alleged seller. Although a bail court does not convert itself into a trial court it is irresistible on the basis of the circumstantial evidence available in casu to accept the respondent’s assessment of its case against applicant as solid. At the very least applicant will be convicted of receiving stolen property in contravention of s 125 of the Criminal Law (Codification and Reform) Act.

I accordingly find that the case against applicant is quite strong and that applicant risks a substantial imprisonment term on conviction. The risk of imprisonment will no doubt provide an incentive for applicant to abscond. The fact that he is on bail on a stock-theft charge does not make matters any lighter for applicant. In the circumstances the respondent’s fears that applicant will abscond if released on bail are well grounded. The application for bail is accordingly dismissed.

Ngarava Moyo & Chikono, applicant’s legal practitioners

National Prosecuting Authority, respondent’s legal practitioners