Mind Makona and Tempson Dhauramanzi and Paul Pisu Ndlovu v The State and Edmore Huni v The State

### Preamble
1
HH 134-21
B 429/21
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MIND MAKONA						B 429/21

and

TEMPSON DHAURAMANZI

and

PAUL PISU NDLOWU

versus

THE STATE

EDMORE HUNI						B 494/21

versus

THE STATE

HIGH COURT OF ZIMBABWE

CHITAPI J

HARARE, 17 March 2021 & 26 March 2021

Appeal against refusal by magistrate to grant appellants bail – Section 121 (1) (b) Criminal Procedure & Evidence Act, [Chapter 9:23]

T Machinga, for the 1st, 2nd & 3rd appellants

L Gono, for the 4th appellant

R Chikasha & K Kunaka, for the respondent

CHITAPI J: The first – third appellants filed their joint appeal under case No. B 429/21. The fourth appellant separately filed his appeal under case No. B 494/21. The bail applications were set down for hearing on the same date. The appellants are all co-accused in the case for which bail was refused by the magistrate and is now subject of this appeal. By agreement of counsel, the applications B 429/21 and B 494/21 were consolidated for purposes of hearing and judgment. This explains why the fourth appellant has been cited as such.

The appellants appeared before the provincial magistrate at Harare on 16 February 2021 on initial remand. They were facing allegations of theft as defined in s 113 of the Criminal Law (Codification and Reform Act [Chapter 9:23]. The appellants were placed on remand. They did not challenge the allegations which were placed before the court as grounding a reasonable suspicion that the appellants committed the offence charged. In that regard it stands to reason that there is no disputation by the appellants of the allegations aforesaid.

The appellants applied for bail pending trial after the prosecutor had indicated to the magistrate that bail was opposed.  The prosecutor called the investigating officer to give evidence to support the opposition to the grant of bail to the appellants. I will deal with the summary of his evidence later. The magistrate dismissed the bail application for all the four appellants herein. She stated as follows in the ruling on p 4 thereof—

“The court is of the view that the reasons raised for keeping the accused persons in custody outweigh release on bail. It is not in the best interests of grant the 4 bail who have a high chance of –

endangering society

absconding

interfering with witnesses or evidence.

Bail is hereby dismissed.”

The first, second and third appellants raised the following grounds of appeal –

“1.	The court erred by denying the appellants bail because of the seriousness of the offence when they (sic) was no other compelling reasons to support such a finding.

2.	The court a quo erred in finding that the appellant are likely to abscond and evade the jurisdiction of this honourable court even though they (sic) was no evidence that was led to support such a finding.

3.	The court a quo erred when it ruled that the appellants might interfere with witnesses even though they stay in different areas.

4.	The court a quo also erred in stating that the appellants are a danger to society merely because they are trained by the Zimbabwe National Army.”

The appeal by the fourth appellant is made as if it is a fresh bail application. I have carefully gone through the appellant’s papers. The application in the heading is described as “NATURE OF APPLICATION –  This is an application for bail pending trial.” It is however common cause that the appellant was denied bail by the magistrate and was dissatisfied with the decision to deny him bail. The fourth applicant did not list the grounds of appeal nor seek to demonstrate how the magistrate misdirected herself. A demonstrated misdirection in the decision of the magistrate is a condicio sine qua non for the interference by the judge with the decision of the magistrate. The fourth appellant’s papers here and there list the reasons for bail denial. However, there is no argument on the important question. “in what way did the magistrate err in reaching the decision which she arrived at? In the light of the fourth appellant’s notice and grounds of appeal being incurably defective for want of both form and substance, the fairest order to grant which does not close the door of the court to the appellant to file a fresh appeal in proper form is to strike the application off the roll and this order will ensue. Fourth appellant’s counsel is expected to be fully conversant with the procedure and process in bail appeals. In this regard, the judgment S v Malunjwa HB 5/03 where NDOU J stated as follows on p 2 of the cyclostyled judgement–

“Approach

The approach in this matter is whether the magistrate misdirected herself when she refused the appellant bail. I need to emphasize this aspect because the matter was argued as if I am hearing the bail as a court of first instance. The appeal should be directed at the judgment of the court a quo.it is the findings of the court a quo that the appellant should attack...”

is instructive.

In relation to the appeal by the first, second and third the respondents counsel submitted that the magistrate did not commit any misdirection or irregularity in her decision and that the appeal judge could not therefore interfere with the magistrate’s decision. He submitted that the State had a strong case against the appellants because stolen, exhibits were recovered from “some of the appellants’ girlfriends. Counsel also argued that the appellants abused the trust bestowed on them by stealing from their employer. He further argued that the appellants could interfere with their girlfriends who witnesses. He submitted finally that upon conviction, a custodial sentence was a likelihood and that the prospects of imprisonment would induce the appellants to abscond. Counsel pointed out that the appellants did not outline their defences. The issue of the alleged failure by the appellants to outline defences was not a matter that arose for argument or determination before the magistrate. It cannot be introduced on appeal.

The facts of the matter as alleged were that the appellants were employed in various capacities at an entertainment centre called Orchid Gardens situate along Domboshava road, Harare. The first appellant was employed as a guard. The second and third appellants are attested members of the Zimbabwe National Army (ZNA) on deployment to Orchid Gardens from the Presidential guard.

It was alleged that during the period from October 2020 to February 2020, the appellants and others separately charged, whilst on duty unlocked the warehouse at Orchid Gardens and stole property listed as

“4 x boxes folding chairs

10 x 50 kg bags cement

3 x sewing machines

1 x carpet

3 x wheelbarrows”

It was alleged in the facts that the recovered property included the following items:

10 x 50 kg bags cement

1 x 15 metres floor carpets

4 x singer sewing machines

2 x pink satchel bags from another accomplice Edmore Huni’s place of abode

2 x boxes of 8 folding plastic chairs

9 x 9 inch brick force

1 x wheel spanner

2 x butchery cranes

2 x wheel barrows

11 x 6 metres table clothes

2 x wheelbarrows from second and third appellants’ room

10 gold dinner plates

6 x whole dinner places

3 wine glasses

The total value of stolen property was put as ZWL$1 620 000 of which property worth ZWL$650 000 was recovered. It is not clear from the judgment whether the five items listed as having been stolen by the three appellants do not form part of the recovered property. If the property allegedly stolen by the appellants was all recovered, the fact that the appellants did not benefit from the theft would have a bearing on the decision of the trial on the nature and amount of punishment to be imposed in the event of a conviction.

The magistrate in denying bail on the three grounds of endangering society, absconding and interference with witnesses was not alive to the need to relate to factors which the law requires her to relate to first before determining the existence of the grounds on which bail was denied. The magistrate was required in regard to endangering the safety of the public to relate to the factors in s 117 (3) (a) of the Criminal Procedure and Evidence Act [Chapter 9:07]. The factors are listed as

“(i)	the degree of violence towards others implicit in the charge against the accused

(ii)	any threat of violence which the accused may have made to any person

(iii)	the resentment the accused is said to harbor against any person

(iv)	the disposition of the accused to commit offence referred to in the first schedule as evident 	from his or her past conduct;

(v)	any evidence that the accused previously committed an offence referred to in the First 			Schedule while released on bail

(vi)	any other factor which in the opinion of the court, should be taken into account;”

After consideration of the record of proceedings and judgment, it is clear that the magistrate did not properly take into account the above factors thereby misdirecting herself in reaching a decision that the release of the appellant would endanger the safety of the public or any person. It was therefore not established by the state as a compelling reason to deny bail that the appellants if released on bail would endanger society or any person. Bail ought not to have been denied on that ground.

In regard to risk of abscondment, the magistrate was required to take into account factors listed in s 117 (3) (a) of the same Act as applicable. These 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 travel documents.

(iv)	the nature and gravity of the offence or the 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 condition

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

The magistrate did not directly relate to the factors. I suggest that in order that there is sequence or chronology in dealing with the aforesaid factors, they must be individually dealt with where applicable after which their cumulative effect is then determined. The magistrate cited the judgment in S v Makuyana HMT 11/18 to properly note that factors set out in s 117 (2) as read with s 117 (3) had to be cumulatively considered. The magistrate also noted that where the offence merits a custodial sentence in the event of a conviction, then there would be a likelihood of the risk of abscondment present or to be inferred.

The magistrate stated that the appellants were accused of stealing from their employer. She ended there. I assumed that she meant to reason that theft from employer is seriously viewed by the court. However, notwithstanding that indeed a theft from employer being conduct which amounts to a breach of trust is viewed seriously by the court, there is no rule of thumb that a theft from employer attracts an effective custodial term in all instances. The circumstances of each case determine what in each case is an appropriate sentence. The sentence for theft under s 113 of the Criminal Code is a fine not exceeding level 14 or twice the value of the property stolen whichever is the greater or imprisonment not exceeding twenty-five years or both. The court may suspend the whole sentence or part thereof on condition of restitution or compensation to the victim of the theft. The magistrate ought to have taken into account the fact that although the theft allegation being against the employer were serious, the sentence provided for included the imposition of a fine. Without more, it was thereof too presumptuous to infer a risk of abscondment on the likely penalty being one that induces abscondment.

In relation to interference with witnesses, the magistrate was required to consider the factors listed in s 117 (3) (c) of the Criminal Procedure and Evidence Act. These are

“(i) 	whether the accused is familiar with any witness or evidence

(ii)	whether the witness has made a statement

(iii)	whether the investigation is completed

(iv)	the accused’s relationship with any witness and the extent to which the witness may 		be influenced by the accused

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

(vi)	the ease with which any evidence can be concealed or destroyed

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

In relation to this ground for refusing bail, the magistrate simply indicated that not all accused had been accounted for and nothing was stated further. For this reason, the magistrate concluded that the release of the appellants would complicate and compromise investigations. The provisions quoted above do not provide that bail may be refused on account that some suspects in the commission of the offence have not been arrested yet. It was also not suggested how the arrest and investigation of the suspects still at large would be compromised by the release of the appellants on bail. The failure by the magistrate to consider the factors above to the extent of their application was a further misdirection that entitled interference with the magistrate decision.

The appellants’ grounds of appeal that there was no evidence from which to infer that the appellants were a flight risk, were a danger to society and would interfere with witnesses have merit. Without taking account of the factors in s 117 (3) (a) (b) and (c) into account, it could not be said that the magistrate was properly directed to consider or apply her mind to peremptory factors to reach an informed decision to deny bail to the appellants. I must therefore deal with this appeal in the wider sense. Since the investigating officer gave evidence and counsel for both the appellant and the state addressed the magistrate and subsequently the judge on and all the above issues, I am properly informed to consider whether or not the State in terms of s 115 C (2) (a) (1) of the Criminal Procedure and Evidence Act, discharged the burden of showing that on a balance of probabilities, there are compelling reasons to justify the continued detention of the appellants.

The investigating officer agreed in his evidence that the appellants were men of fixed abode and Zimbabwe citizens in the case second and third appellant, the first appellant being a Mozambican. They do not possess travel documents. The second and third appellants are members of the Zimbabwe National Army who can be counted for. The two are married with young families. The first appellant was said to have collected his belongings from the farm where he was staying and did not have proper documentation. The investigating officer also testified that three witnesses whom he did not name were girlfriends of the appellants. The investigating officer also states that the appellants could have duplicate keys to the warehouse from where goods which were allegedly found in possession of the appellants were recovered. The evidence was however that the exhibits alleged to have been stolen had been discovered from those witnesses. It was not suggested that the same witnesses were being investigated for further recoveries. The investigating officer also testified that he feared that the second and third appellants would use their army training to survive in a tough environment and to abscond and still survive away from their homes. He also averred that they were from Nkayi which is outside the court’s jurisdiction. The Constitution out laws discrimination on the basis of regionalism and tribalism among other factors. The appellants were not asked to address on how the facts of their place of origin would impact on their attending court if granted bail.

The investigating officer testified to the unreliability of the addresses given by the appellants. The appellants before me brought relatives who undertook to house then within Harare pending trial. I have noted the admission by the investigating officer in his evidence that it was third appellant who reported a missing tank to the police. Prima facie such conduct would be inconsistent with guilt. Further the investigating officer was asked the following questions to which he responded as below on p 30 of the record in relation to second and third appellants

“Q. Where were they residing?

At the premises whilst on duty

Q. They removed the property from the place to then room

A. Yes but not to outside farm

Q. Explain further

A. The property had been in locked warehouse and they had no authority to put in their rooms

Q. was there a stores manager

A. Yes, complainant’s representative

Q. Did they have the property

A. Yes

Q. Did they try to sell it

A. Not to my knowledge.”

A reading of the above evidence leads one to believe that the appellant did not in fact remove the property from the work place but were in possession of the property within the same workplace where it was allegedly stolen. There was no suggestion that the property recovered had been tempered with. There will be need for the State at trial to prove intention to permanently deprive the owner of the property. Sureties willing to stay with the appellants were Munyaradzi Kuverengwe-who is employed by and stays at Seedco Farm, 149 Highlands, Harare. He offered to stay with first appellants. Kempton Mpofu who is a maternal cousin with the third appellant offered to house the third appellant at 2259 Chomira Crescent, Ruwa where Kempton Mpofu has been a tenant for 10 years. Nyaradzo Dhauramanzi who owns a property 8095 Southlea Park, Harare and is a brother to second appellant offered to house the second appellant pending trial.

After considering all factors which are proper to take into account, there are objectively no compelling reasons to deny the appellants bail. Sufficient safeguards in the form of reasonably tight bail conditions will allay the respondent’s fears of abscondment and interfering with witnesses albeit the fears not having been sufficiently established. The appeal is disposed of as follows:

IT IS ORDERED THAT-

The bail appeal NO. B494/21 being and is hereby struck off the roll for want of

proper form.

In relation to case NO. B 429/21, the appeal succeeds and the following order is made-

The judgment of the magistrate dated 16 February, 2021 under case no HREP CRB 1132-34 is set aside and substituted with the following order:

Each accused is admitted to bail pending trial.

Each accused shall deposit $5 000.00 with the Clerk of Court, Harare Magistrates Court.

The first accused Mind Makona shall reside with Munyaradzi Kwerengwe at Seedco Farm, 149 Highlands, Harare and shall report twice a week on Mondays and Fridays at Highlands Police Station between 6:00am and 6:00pm.

The second accused Thompson Dhauramanzi shall reside with Nyaradzo Dhauramanzi at house 8095 Southlea Park, Harare and shall report at Southlea Park Police Station every Mondays and Fridays between 6:00am and 6:00pm.

The third accused Paul Pius Ndlovu shall reside with Kempton Mpofu at house No 2259 Chombira Crescent Ruwa and shall report a Ruwa Police Station twice a week on Mondays and Fridays between 6:00pm.

Each accused is ordered not to interfere with State witnesses and investigations.

Each accused shall not attend their workplace Orchid Gardens save upon invitation by the employer.

Mudzonga Law Chambers, appellant’s legal practitioners

National Prosecuting Authority, respondent’s legal practitioners