Marlvin Magumura and Tonderai Nyamukondiwa v The State

### Preamble
1
HH 640-25
HCHCR 5564/25
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MARLVIN MAGUMURA

and

TONDERAI NYAMUKONDIWA

versus

THE STATE

HIGH COURT OF ZIMBABWE

MUCHAWA J

HARARE; 9 October and 13 October 2025

Application For Bail Pending Trial

W Sengweni, for Applicants

A Masamha, for Respondents

MUCHAWA J:  This is an application for bail pending trial.  The two applicants stand accused of:

(i) robbery as defined in s 126 of the Criminal Law (Codification and Reform) Act, [Chapter 9:23]

(ii) contravening s 4(1) as read with s 4(2) (b) of the Firearms Act [Chapter 10:09] being unlawful possession of firearms

(iii) contravening s 3 (1) of the Explosives Act [Chapter 10:08] being unlawful possession of explosives.

The allegations against the applicants are that on 28 May 2025 around 2200 hours, they, in the company of their accomplice who is in custody and two others who are still at large hatched a plan to rob the complaint.  They then  confronted the security guard who was manning at Ellis Robins High School at 144 Sherwood Drive Mabelreign, Harare.  They pointed a pistol at him and force marched him to a dark place, tied his hands from the back using a cloth and his legs using a cable.  They used iron rods, bolt cutters and grinders to access the headmaster’s office.  They ransacked the room and used explosives to blast a strong room. They stole an itel p40 cell phone, A03 Samsung cellphone, airtime worth US$25-00 and cash amounting to US$ 685 from a small cash box. Groceries worth $74.00 were stolen from the tuckshop.  Attempts to use explosives to blast open the school safe were unsuccessful.  The complainant was kicked in the face using booted feet and he became unconscious.  When he regained consciousness, he informed the school authorities and a report was made to the police.

Investigations led to the arrest of one Jeremiah Makaza on 10 July 2025, the accused’s accomplice.  He was found in possession of a yellow handled bolt cutter, a crowbar, 1 pair binoculars, 1 pair catapult, a grey woolen balaclava, a blue, brown side cutter and a pair of gloves.  Upon being interviewed he said he was on his way to meet the accused persons at Masimbi intersection along High Glen and Glen Norah Road. The police proceeded there and when they approached the vehicle in which the accused persons were, they tried to bolt out.  The police officers fired at the vehicle and the accused persons retaliated by firing back.  They were subdued and arrested.

A search in the vehicle led to the recovery of a .38 revolver with erased name and serial number with 1 x 9.65 mm spent cartridge in the chamber, a BT4 Combat Gas operated rifle, 10 detonator fuses, 6 dynamites, 1 pair sport gloves, 1 yellow cutter, 1 black satchel bag, 1 catapult, 1 grey balaclava and 1 brown silver spring.

The two applicants were in the motor vehicle and were arrested then

In their application for bail, the applicants aver that they are good candidates for the granting of bail.  They deny the allegations levelled against them and state that the police have made certain misrepresentation.  The first applicant says that he resides at Mutyakareva Village, Chief Makoni, Rusape and second applicant in Glen View 1.  It is explained that the two applicants were only in the motor vehicle to meet late Jeremiah Makaza who was first applicant’s uncle and second applicant is his step brother whom he had visited a week before his arrest.  Jeremiah Makaza had allegedly called first applicant and arranged to meet at Masimbi (place of arrest) It was first applicant who then invited the second applicant and his young brother Kudakwashe Nyamukondiwa. It was Kudakwashe who then drove them there in his mercedes benz motor vehicle.  They had been surprised to hear gun shots targeted at their vehicle and had attempted to run for dear life.  They had not heard any warning shots and the people shooting disembarked from a white Toyota Fortuner and a white Probox Toyota vehicle.  They had been parked by the roadside waiting for Jeremiah Makaza.  It was reasonable to flee as they thought they were being robbed.

They deny having exchanged gun fire with the police nor did they retaliate at all.  They challenge the police to produce the guns used in retaliation.

It is the applicants’ case that they were mere passengers in Kudakwashe Nyamukondiwa’s motor vehicle and had no knowledge of the presence of any firearms and explosives.  They deny leading the police to the recovery of a Samsung A03 cellphone stolen during the course of the robbery.  It is alleged that it is one Tinashe Tagwirei who led to the recovery of the cellphone and he is unknown to them.  The applicants also say they are not known to another accused person Tichaona Museruka.  It is argued that there is no tangible evidence connecting them to the commission of the offences.  They prayed for the granting of bail contending that the State case against them is tenous and they will not be induced to abscond.  They say they have no facility to cross the borders of Zimbabwe into another country.  They say they have not interfered with any prosecution witnesses and will not do so.  It is alleged that there is no risk of committing further offences as the applicants are not known to the so-called accomplices.

On the contrary the State is opposed to the granting of bail because the applicants are facing serious offences.  In addition, it is averred that there is a strong case against the applicants as an unlicensed firearm and explosives were recovered from their vehicle.  Cellphones stolen during the robbery are said to have been recovered from them.

Bail is also opposed on the reason that the applicants tried to flee upon arrest and had a gun fire exchange with the police before being subdued and arrested.  They are said to be a flight risk therefore.

It is also argued that the instruments of violence recovered from the motor vehicle show that the applicants are a danger to society.  As some of the co-accused/ accomplices have not been accounted for, it is argued that if released on bail, the applicants may regroup and commit other offences.

The State called the investigating officer Tawanda Marara to give evidence.  He confirmed that the applicants had been arrested after a shoot out with the police. He stated that the first person to be arrested is Tinashe Tagwirei after a follow up of a cellphone theft.  He then implicated Jeremiah Makaza and Kudakwashe Nyamukondiwa.  When Jeremiah Makaza was arrested at his house he implicated the two applicants and Kudakwashe Nyamukondiwa and Tonderai.  With the help of Jeremiah Makaza, the police managed to lure the applicant’s and co-accused to the Masimbi area.  The applicants were arrested after a shoot-out and a search in the vehicle led to the recovery of the already listed items.  There were 4 occupants in the vehicle being Kudakwashe Nyamukondiwa, Tonderai Nyamukondiwa. Malvin Magura and Tichaona Rutsvara.  The shoot out had been prompted by the motor vehicle occupants resisting an attempt to arrest them.  They shot at detectives who then returned fire.  Two firearms had been recovered but only one, the .38 revolver had been fired.  The combat gun is mainly used for painting but to a layman it looks like a real gun.

The witness further stated that though it had been assumed that the motor vehicle belonged to Kudakwashe Nyamukondiwa, further investigations had shown irregularities in the registration of the motor vehicle.  Two people were injured in the shoot out being Tonderai Nyamukondiwa and Tichaona Rutsvara leading to their hospitalization Jeremiah Makaza had died in a separate incident.

It was explained that when Jeremiah Makaza was arrested, he had said that the weapons used were in the custody of his accomplices whom he led the police to and same were recovered.

The witness also clarified that none of the applicants led to the recovery of the stolen cellphone but one Tinashe Tagwirei.

To prove that the .38 revolver had been fired at the police, it was stated that the recovered cartridge matched through ballistics tests. They were unable to pin point who exactly of the 4 occupants fired but were certain that they were all aware of or had knowledge of the firearm.  The applicants had been implicated by both Jeremiah Makaza and Tinashe Tagwirei.

The law on bail applications of this nature is derived firstly from s 50(1) (a) and s 70 of the Constitution of Zimbabwe (2013) where bail is a right unless there are compelling reasons to deny bail.  Section 115 c of the Criminal Procedure and Evidence Act [Chapter 9:07] gives the onus on the prosecution to justify through compelling reasons why bail should be denied.  Where, however the offence, as in casu, is a Third Schedule offence the applicant bears the burden of showing that it is in the interests of justice for him/her to be released on bail.

Section 117 of the Criminal Procedure and Evidence Act then gives guidelines on what the court should consider in an application for bail.  It is stated that it shall be in the interest of justice to deny bail where one or more of the following grounds are established as a likelihood;

that the applicant will endanger the public safety or a particular person or will commit an offence referred to in  the First Schedule, or

that he will not stand his or her trial or appear to receive sentence

that he will attempt to influence or intimidate witness or to conceal or destroy evidence, or

undermine or jeopardize the objectives or proper functioning of the criminal justice system including the bail system.

In this case can it be said that the applicants have discharged the onus to prove that it is in the interests of justice for them to be released on bail?  I think not.  In the face of the evidence from the investigating officer, their explanation of a relationship between Jeremiah Makaza and first applicant as uncle and nephew has not been substantiated.  Nor has the step brother allegation between the applicants.  They only explained the presence of three occupants in the motor vehicle and were mun about Tichaona Rutsvara.  The investigating officer was clear that Jeremiah Makaza led them to where the applicants and co-accused were waiting.  He even said the weapons and explosives would be with these.

It turned out so. Nothing was said to dispel that the applicants also had knowledge of the firearm.  The denial of there having been a shoot-out was countered by the alleged ballistics match.

This is a case where the applicants are facing serious offences of robbery, possession of explosives and possession of firearms.  Their conduct of trying to flee upon arrest and an exchange of gunfire with the police before the arrest makes them flight risks and unsuitable candidates for bail.

The fact of having been found in possession of instruments of violence such as firearms and explosives make the applicants a danger to public safety.

The evidence of the investigation officer makes clear that the state has a strong case against the applicants.  They were found in possession of the firearms and explosives in a motor vehicle whose ownership has been investigated further and found to be unclear. They were also implicated by their co-accused and their claim of being mere passengers is shaky. In such circumstances because of the likely lengthy sentence, they will be induced to abscond.

In addition, some of the co-accused person are still to be accounted for.  The applicants may regroup with them and commit other offences.

In the circumstances, the application for bail pending trial is dismissed.

Muchawa J: ...................................................................

The Legal Aid Directorate, Applicants’ Legal Practitioners

The National Prosecuting Authority, Respondent’ s Counsel