Sean Andile Dhlomini v The State

### Preamble
1
HH 158-21
B 336/21
---------


SEAN ANDILE DHLAMINI

versus

THE STATE

HIGH COURT OF ZIMBABWE

FOROMA J

HARARE, 25 February 2021 and 9 April 2021

Bail ruling

T. Muzawa, for the applicant

Ms V. Mtake, for the respondent

FOROMA J: The applicant has been charged with 4 counts of armed robbery as defined in s 126 (1) (a) of the Criminal Law Codification and Reform Act. The allegations are as detailed in the form 242 wherein it is alleged that he and his co-accused persons are alleged to have

On the 24 July 2020 around 2220hrs robbed a family at 40 Longfords Street Queensdale Harare whilst armed with a shot gun and pistols and stole cash in the sum of US$1473-00 a Samsung cellphone with an Econet line/indicated a Huawei YG cellphone Sonny Ericsson cell phone and various other personal belonging including a Zimbabwean passport and National Identity card.

On the 25th July 2020 accused in the company of about 9 of his co-accused persons robbed Trauma Centre Borrowdale whilst driving a Toyota Fortuner vehicle registration No. AFD 1048. In the course of the robbery the accused fired 3 shots at the guards who were fleeing from the robbers. They stole cell phones from staff.

On the 9th February 2021 applicant and his co accused robbed the complainant at Tichagarika Shopping Centre and stole complainant’s Huawei Met Pro cell phone and cash amounting to US$$200-00 before ordering the complainant to drive them to his house at Houghton Park where they robbed complainant’s wife of a cash box containing US8 000 and various blankets and clothes shoes and groceries; Samsung cell phone before they left with complainant whom they dumped in a maize field at Graniteside.

On the same day i.e. on 9 February 2021 applicant and his co-accused broke into medical pharmacy after subduing the security guard guarding the premises at Kuwadzana Shopping Centre. They stole from Medical Pharmacy an Asus cell phone and empty cash safe.

Applicant was arrested as a result of a high speed chase and shoot out in the High Glen Area involving the police wherein applicant sustained an injury to his ear and hand. Applicant was then driving a Nissan Caravan in which he is alleged to have been carrying his co-accused.

Applicant has applied for bail to the High Court which has been opposed by the State.

The State called Detective Sergeant Brian Maigeta who is the investigation officer of the allegations against applicant to bolster its opposition to bail.

In his testimony under oath Brian Mageta highlighted the involvement of applicant in the robbery at Trauma Centre where the applicant escaped leaving behind a Toyota Fortuner involved in an accident which had been rammed into by Dr Solanki in a speed chase. The vehicle a Toyota Fortuner had been hired by applicant from Okey Travel and Tours.  Detective sergeant Brian Mayigeta the Investigating Officer produced an agreement obtained from Okey Travel and Tours headed Motor Vehicle Rental Agreement which was accepted as Exhibit 1. Exhibit 1 reflects that the applicant entered into the agreement around 15:33 hours on the 23 July 2020 and was scheduled to return the vehicle at 16:00 on the 24 July 2020. The vehicle hired as recorded in Exhibit 1 is a silver grey Toyota Fortuner vehicle registration No. ACC 7829 which matched the vehicle recovered by police as abandoned by robbers after the Trauma Centre robbery as aforesaid. At the hearing applicant’s counsel sought to discredit the Exhibit 1 on account of some over writing of the date on which the transaction was signed. The date 23 July 2020 is overwritten suggesting an attempt to change the original date. Applicant’s counsel argued that the document Exhibit 1 could not be relied upon as evidence of the hire of the vehicle used in the robbery. I do not agree with this argument as the witness indicated that he was not involved in the recording of the transaction as police only received it from Okey Travel and Tours. Surely the Investigating Officer would have no interest in forging the vehicle rental agreement.

Nigel Makono who released the vehicle rental agreement to police as a director of the lessor Company would have had no interest in misleading the police by forging the lease agreement. After all the lease agreement was not conclusive evidence of applicant’s involvement in the robbery. I therefore find that the vehicle rental agreement establishes a link between applicant and the armed robbery at Trauma Centre. Sight should not be lost that according to the witness Maigeta when the Toyota Fortuner was searched some stolen goods were found which were identified by complainants. It is also significant to note that the address supplied by applicant as his residential address namely No 1 Broadmead Lane Chisipite was found by police to be false as applicant was never found there. The Investigating Officer also testified that applicant’s co-accused one Taj Abdul’s finger prints were matched to finger prints uplifted by police forensics and was found to match. The investigating officer testified that when the applicant was arrested after a high speed chase and shoot out with the police the applicant confessed that he resided in Johannesburg South Africa and that he occasionally came into Zimbabwe on his criminal escapades and would go back to Republic of South Africa.

According to the Investigating Officer the applicant led police to the recovery of a Mercedes Benz used in the robberies of the 9 February 2021 from which complainants’ property was recovered namely several pairs of shoes, sub-hoover speaker. The witness also indicated in his evidence that the applicant made indications under camera showing how the crimes were perpetrated. Although the indications were not produced, the Court did not hear defence to deny making of the indications by the applicant save alleging that the indications were not freely and voluntarily made.

It is significant to note that at the initial remand of applicant complaints were raised against the police who it was alleged fired 3 shots on applicant after he had been hand cuffed and that generally applicant was beaten by the police in an effort to make him confess to the allegation.

I note that the magistrate directed that the prosecutor investigate the allegation that applicant had two bullet lodged in his leg. The court also ordered that he receive medical examination at a government institution and have the bullets extracted form his body.

In his bail application applicant admits that when the Nissan Caravan he was driving hit a tree he managed to leave the vehicle and started running before the pursuing police details shot at him. He also describes how the police shot him 3 times one bullet on his hand and two on his feet. The remand Court record does not speak to being shot on his ear and his hand. One wonders why these injuries were omitted at the initial remand hearing.

It is not disputed by applicant that he resides in Johannesburg and that he is linked to the high speed chase and shootout with police. The alleged confession and indications made to the police when coupled with the recoveries of stolen goods and get away vehicles make the State’s case a very strong one.

While the applicant will ascribe the shots on himself to wanton cruelty by police as the shots were unnecessary as he had already been arrested and subdued his version is disputed by the police. It is not the duty of this Court as a bail court to decide who between applicant and his alleged assailants is telling the truth. These matters should be left for determination by the trial Court. The undisputed fact that applicant resides in South Africa makes him a real flight risk. For these reasons I find the applicant not be a proper candidate for bail. I accordingly decline applicant’s application for bail.

Tapera Muzana & Partners, applicant’s legal practitioners

The Prosecutor General’s Office, respondent’s legal practitioners