Steward Tatenda Urombo and Brian Goto v The State

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STEWARD TATENDA UROMBO
and
BRIAN GOTO
versus
THE STATE


HIGH COURT OF ZIMBABWE
FOROMA J
HARARE, 18 June 2021


Bail application – Judgment


C. Chipetura, for the Appellant
Y. Mtalie, for the State


       FOROMA J: Applicants were arrested and charged with (i) contravening s 126 (1) (a)
and (b) of the Criminal Law (Codification and Reform) Act [Chapter 9:23] ie. Robbery and
(iii) rape as defined in s 65 1 (a) and (b) of the said Code.
       Briefly the facts alleged against them per form 242 ie. Request for remand was that
the two accused persons in the company of their accomplices still at large connived and
robbed complainant and his wife at the complainants’ residence of an assortment of goods
after tying the complainants with shoe laces and cello tape. Among stolen goods were cell
phones one of which a Samsung Galaxy S+ which was recovered one from 2 nd applicant.
Another cell phone stolen in the robbery of complainant in count 2 namely a Nokia 1205 was
traced to the 1st applicant who it is alleged disposed of it as soon as he learnt that it would
cause him to be linked to the robberies alleged. Applicants are alleged also to have stood
guard on the husband (complainant in count one) as one of the accused dragged his wife into
a nearby bush where he raped her. Applicants applied for bail pending trial which the State
opposed. The State opposed bail and called the investigating officer one detective Sergeant
Never Milton Lisita. In summary the police witness testified that police opposed bail being
granted to the applicants as they believed that applicants were linked to the robberies. In the
case of 1st applicant he acknowledged having disposed of the Nokia 1205 cell phone which is
one of the items that one of the complainants was robbed of. As it happens 1 st applicant had
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used the said mobile phone and so the applicant could not dispute having possessed it. He
however claimed that he had bought it from the 2 nd accused. 2nd accused claimed that the said
Nokia cell phone and Galaxy S cell phone had been left in his possession by one Zunde a
member of ZNA. None of the applicants mentioned the Zunde to the police which made it
suspicious that he was only mentioned at the time of their application for bail. The State can
be excused for believing that the reference to Zunde in the explanation of the source of the
cell phones was a recent fabrication. 1st applicant did not dispute the assertion that he had
disposed of the Nokia 1205 cell phone both in his application nor through the defence
counsel when the witness Lisita testified and yet the applicant was already aware of this
allegation as contained in the form 242 aforesaid.
       One of the reasons the State opposed bail was that second applicant lied to the police
that he resided in Hopley in Harare yet in truth he resided in Chitungwiza as police eventually
established.
       This ground of opposition to bail was also related in the Form 242 but the applicant
did not challenge it. The link of the applicants to the criminal allegations of robbery coupled
with the fact that the applicants were difficult to apprehend as well as the attempt to mislead
police as to the residence of second applicant significantly tipped the scales. As a matter of
fact, the disposal of the Nokia 1205 cell phone strongly suggests an attempt to destroy
evidence. But for the night raid on one of them (first applicant) who led to the arrest of the
second applicant the applicant could have been difficult to arrest. The link to the offence
presents a strong incentive for the applicants to abscond in order to escape a long prison
sentence on conviction. Although the applicants claim that the cell phones were left in second
applicant’s custody pending payment of the $30 debt there is no indication that second
applicant was authorised to find buyers for the phones as no price was indicated in the event
he got interested buyers. While both applicants claim that they sold each other the Nokia
1205 cell phone none of them indicates the purchase price in their affidavits in support of the
application for bail. For these reasons I did not find the applicants’ explanations as to how the
mobile phones stolen from the complainants in the robberies ended up in their possession to
be improbable. The fact that first applicant disposed of the evidence i.e. Nokia 1205 puts paid
to the apparent innocent explanation that he innocently purchased it. While a bail court is not
a trial court with responsibility to determine the veracity of an accused’s defence the court
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needs to be satisfied that the explanation of the accused to the allegations are probable
especially against the recovery of stolen goods in their possession where the allegations are
robbery as in casu.
       The respondent is well justified in the view that the disposal of stolen property by first
applicant betrays a guilty conscience on his part. If he was an innocent purchaser, he would
have not needed to dispose of the Nokia 1205 cell phone for which he paid value.
       Second applicant on the other hand claimed that the cell phones were left with him as
some kind of security for the US$30 debt. No explanation was given why 2 nd applicant chose
to use the phone instead of keeping the phone pending return of the alleged debtor. The state
contends that the mention of Zunde was a recent fabrication. If Zunde was the “owner” of the
2 mobile phones and being a person known to second applicant whose residence or
workplace was known to second applicant it would have been an easy matter on 2 nd
applciant’s arrest to indicate that Zunde was the owner of the phones and assist police to
arrest/interview him as this would likely result in him being cleared of any links to the
robbery.
       When the respondent’s witness testified it was not suggested to him that the person to
explain how stolen property ended up in applicant’s possession was Zunde. Besides second
applicant did not take precautions considering that he might have been left in possession of
stolen property before deciding to use the Galaxy as alleged. The Samsung belonged to the
rape victim and did not belong to Zunde. For the forgoing reasons I considered that the
applicants were flight risks as the prospect of conviction was strong and the risk of a long
prison term in their case was a strong incentive for them to abscond if they were granted bail.
The misrepresentation of the residential address to the police tipped the scales as far as
second applicant was concerned. For these reasons I dismissed the applicants’ application for
bail as I did not consider them to be proper candidates for bail.
       A word of caution to legal practitioners practicing their profession in the bail court.
Applicants were represented in their initial application. Despite the legal practitioners being
aware of the ex tempore ruling and reasons for the dismissal of the applicants’ application for
bail no appeal was noted nor were detailed reasons sought from the court to enable their
clients to consider whether to appeal or not. Instead the correctness of the extempore
judgement was not placed in issue. Instead applicants must have been advised to accept the
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correctness of the judgment as is apparent from the fact that the applicants only returned to
bail court on an application for bail based on changed circumstances about 3 months later
which is an indication that no appeal had been contemplated. It was after the application for
bail based on changed circumstances was struck off the roll twice for default that applicants’
legal practitioner requested for reasons for the dismissal of the original application for bail.
Legal practitioners should appreciate that it is in the interests of their clients that if reasons
were not fully captured in court when the ex tempore judgment was delivered that the court is
requested to give detailed reasons while the matter is fresh in the court’s mind regardless of
whether or not an appeal will be pursued. After all detailed reasons will only make it easier
for the clients to appreciate why their applications were dismissed as invariably if legally
represented their applications are argued in the applicants’ absence. Requesting the court for
detailed reasons for judgment long after everyone including the accused persons have moved
on with their lives is clearly an abuse of the court. Although the court will oblige and
provide the reasons it will be at the expense of other pressing tasks both in court and in
chambers. In cases where applicants are represented particularly in bail applications legal
practitioners should avoid unnecessary revisiting of matters otherwise considered closed.




Maringe and Kwaramba, Applicant’s legal practitioners
The Prosecutor General’s Office, respondent’s legal practitioners