Judgment record
Takudzwa Godfrey Ngadziore v The State
HH 132/21HH 132/212021
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HH 132/21
B 467/21
TAKUDZWA GODFREY NGADZIORE
versus
THE STATE
HIGH COURT OF ZIMBABWE
CHITAPI J
HARARE, 17 March, 2021; 23 March 2021 & 26 March 2021.
Bail appeal Section 121 (1) (b) of the Criminal Procedure & Evidence Act, [Chapter
9:07] as read with Rule 6 (1) of High Court of Zimbabwe, Bail Rules 1991.
A. Muchadehama, for the applicant
K. Kunaka, for the respondent
CHITAPI J: The background to this appeal is that the appellant and his co-accused
Tapiwanashe Chiringa appeared before the Provincial Magistrate at Harare Magistrates Court
on 27 February, 2021 on allegations of contravening contravened s 5 (3) (a) of the Public
Health (Covid 19 Prevention, Containment and treatment) National Lockdown consolidation
and Amendment Order of S. I 200/2020 as read with S. I 42/2021 (Partakes or convenes a
gathering). The details of the charge were that on 25 February, 2021, the appellant in the
company of accomplices still at large who included one Joana Mamombe and Cecilia Revai
Chimbiri attended the magistrates Court, at Harare in solidarity with one Makomborero
Haruzivishe, an accused person who was appearing in Court. After the case of Makomborero
been dealt with by the Court, it was alleged that the appellant left the Court house and was
part of a group of about nine persons who gathered outside the Court house building in front
of the Court house entrance. The appellant and other persons constituted a gathering with
Joan Mamombe and others as Joan Mamombe addressed the press and made a press
statement. During the gathering, the appellant allegedly made statements denouncing the
arrest and detention of Makomborero Haruzivishe and further castigated alleged police
brutality and called upon the Commissioner General of Police to resign. It was alleged that
the police had evidence of video footage showing the appellant outside the magistrates Court
whilst in the gathering and also making his utterances.
The prosecutor applied to the Court for the placement of the appellant on remand. The
grounds for remand were not challenged by the appellants’ counsel. Counsel advised the
Court a quo that the remand would be challenged on a later date. It is not clear to me as to
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why an accused person who is brought before the Court on initial remand but believes that his
or her placement on remand is not well grounded chooses not to challenge the remand at first
instance but later. The choice not to challenge the remand on the initial appearance implies
that the person whose remand is sought does not take issue with the facts alleged against him.
Such person must be taken as not contesting the factual allegations as set out in the request
for remand form. The question whether or not the facts as alleged ground a reasonable
suspicion that the person committed the offence charged is in such instance resolved in
favour of the State. The Court will in such a scenario proceed to place the person on remand
unless the Court is in doubt that the allegations ground any cognisable offence in which case
the Court should invite the prosecutor to make submissions on the points which the Court
may require clarification on. In casu, the application to place the appellant on remand was
consented to by the appellant. It followed then and must follow now that any challenge as to
whether or not the allegations against the appellant grounded a reasonable suspicion that the
appellant committed the offence could not be entertained during the bail application hearing
because an application for bail is preceded by a successful application by the State to have the
accused person to be placed on remand. Once that decision to place the accused on remand is
made, it is final and is subject to review or appeal. The accused however is free to challenge
subsequent remands if trial remains pending.
I have briefly discussed the process and procedure for remand and related it to bail
applications made after the placement of the accused on remand because the record of
proceedings is replete with improper questions put to the investigating officer who gave
evidence in the bail application. The questions seek to challenge the uncontested facts on
which the remand application was granted. The remand Court cannot in one breath determine
in the initial remand that the allegations made ground a reasonable suspicion and then make a
contrary finding in the bail application.The accused must use the initial remand hearing to
challenge the grounds on which the State seeks the accused’s placement on remand if he does
not agree with them. In the subsequent bail application, the issue becomes whether or not in
the light all the facts and circumstances proper to consider in a bail application, the accused is
a suitable candidate to be granted bail. It was improper to indirectly challenge the grounds for
remand in the bail.
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It is common cause that subsequent to the placement of the appellant and his co-
accused on bail, the co-accused was granted bail. The appellant was denied bail. In the case
of the co-accused the magistrate noted that apart from the allegations by the State that bail
should be refused because of overwhelming evidence, there were no other cogent reasons to
deny the co-accused bail. The magistrate distinguished the appellant and his co-accused on
the basis that whilst the appellant had pending cases before the court, the co-accused did not
have such a history. The magistrate considered that it was the interest of justice to admit the
co-accused on bail on stringent conditions and to deny the appellant bail.
The appellant has noted this appeal against the magistrate’s decision to deny him bail.
The grounds of appeal appear in the notice of appeal. The notice of appeal refers to the
judgment made by the “learned Provincial magistrate Vongai Pamela Muchuchutu-Guwuriro
Esq”. In my view, etiquette must be observed in regard to citing the identity of the judicial
officer. The appeal rules do not provide for the necessity to provide the full names of the
judicial officer. The rules require that the court whose decision is appealed against should be
indicated. In casu, I noted that at best the record of proceedings shows the magistrate’s name
as V.P. Guwuriro. I am not sure as to which archives the appellant’s counsel visited to obtain
the full first names of the magistrate concerned. The point is made for future guidance of
counsel and does not affect the decision I will make on appeal
The grounds of appeal are as follows”:
“1. The court a quo grossly misdirected itself in denying appellant bail on the basis that
the appellant might commit other offences if granted Bail, a finding which is contrary
to both evidence and the dictates of s 117 (3) (a) of the Criminal Procedure and
Evidence Act [Chapter 9:07] as well as established case law on the subject binding
the court a quo.
2. The court a quo grossly misdirected itself in shifting the onus to and placing an
onerous burden on the appellant to prove that he would not commit any Appeal
against Refusal of Bail – Takudzwa Ngadziore v State HreP 2357/21 further offences
on bail when the State had not led any credible evidence that appellant would commit
similar offences whilst on bail.
3. The court a quo misdirected itself in making an adverse finding against appellant with
respect to the alleged existence of overwhelming evidence, that appellant may team
up with outstanding accused person who were alleged to be on the run and abscond,
and that the offence was serious, when similar considerations were not made with
respect to appellant’s co-accused who was since admitted to bail. In doing so, the
court a quo failed to treat like accused alike and in addition, arrived at a decision that
was not supported by the established evidence.
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4. The court a quo grossly misdirected itself in failing to find that the imposition for bail
conditions could sufficient take care of the fears of the State given that they have
religiously complied with their bail conditions in respect of the other pending cases.
In this respect, the court a quo failed to take into account a relevant consideration on
bail, being the appellant’s past response to bail, and that he had been arrested on his
way to comply with his bail conditions on another matter and had also cooperated
fully with the police and had not resisted arrest. These factors distinguished appellant
as a person who was not a flight risk.
5. The court a quo misdirected itself in finding to consider that bail conditions could be
imposed to secure the attendance of the appellant at the trial.”
It is important before interrogating the grounds of appeal to set out the reasons or
grounds on which bail was denied by the magistrate. Upon a careful consideration of the
judgment of the magistrate, the magistrate stated as follows on p 17 of the record in her
ruling;
“However this court is of the view that the committing of further offences whilst someone is
on bail of similar nature to the ones they are already facing shows a disregard for the law despite the
fact that these are mere allegations”
The magistrate also states as follows:
“With such a clear position, the 1 st accused needed to do more to explain to this court that
once granted bail he will not commit further offences…..
“In essence nothing has been advanced to the effect that the accused is likely not to commit
further offences whilst on bail. That ground stands possible.”
The magistrate then continued:
“The state spoke of overwhelming evidence and the accused also did not meaningfully rebut
that. It is not in dispute that there appears to be other accomplices on the run whom the state
fears they may connive with the accused to commit further offences. Be that as it may, the
offence is also serious and in the 1 st accused’s case considering that he is facing other
offences lies may add to the build up and the ordinary human inclination may come into play
prompting him to abscond court and not stand trial.”
It is trite that the judge on appeal can only interfere with the magistrates judgment if
the appellant has established that the magistrate committed a misdirection or an irregularity
which vitiates the decision. The principle is expressed in simple terms by HEFER J in S v
Barber 1979 (4) SA 218 (D) at 220 E-H where the learned judge stated-
“It is well known that the powers of this court are largely limited where the matter comes
before it on appeal and not as a substantive application. This court has to be persuaded that
the magistrate exercised the discretion which he has wrongly. Accordingly, whatever this
court’s own views are, the real question is whether it can be said that the magistrate who had
the discretion to grant bail exercised that discretion wrongly.”
In the event that the misdirection is established of either fact or law, the appeal judge
is at large to consider whether bail ought, in the particular circumstances of the case to have
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been granted or refused, if no misdirection is established, the appeal must fail. See
Chimaichimwe v S SC 18/13, Ticharwa Muzivisa v State HMA 7/18.
It is not my intention to deal with every ground of appeal raised because it is not
necessary that more than one misdirection or irregularity committed by the magistrate be
established by the appellant before the appeal Court can interfere with the proceedings on
appeal. The establishment of one misdirection suffices to untie the appeal judge’s hands to
interfere with the judgment of the magistrate. In casu, the second ground of appeal is
established.
As quoted from the extract of the magistrate’s judgment the magistrate stated that the
appellant had not advanced anything “to the effect that the accused is likely to commit further
offences whilst on bail”. The magistrate referred to my judgment in the case of S v Chapfika
HH 76/21 as authority that the applicant in a bail application had to make supported factual
allegations to establish his suitability for bail. I believe that the magistrate must have failed to
distinguish that the case of S v Chapfika deals with a Third Schedule offence where in terms
of s 15 C (2) (a) (ii) (A) of the Criminal Procedure and Evidence Act, the applicant/accused
bears the burden to show on a balance of probabilities that it is in the interests of justice to
grant him or her bail. For non Third Schedule offences, it is the prosecution which bears the
onus to show on a balance of probabilities that there exists compelling reasons to justify the
continued detention of the accused. It follows that in this case, the onus to establish that the
appellant was likely to commit further offences or at best an offence referred to in the First
Schedule rested upon the prosecution as provided for in s 117 (2) (a) (i) of the same
enactment.
Having found that the magistrate misdirected herself I must determine whether or not
bail be granted or refused. The magistrate found that the appellant had pending cases whose
essential elements could be categorized in the same bracket with the current charge. The
appellant listed the cases. In case No. HRE P 4518/20 the appellant faces a charge of criminal
nuisance. Trial commenced in April, 2020 when the state led one witness. The trial stalled
and is still to be resume. I must comment that it is necessary that simple uncomplicated trial
are speedily completed to maintain the integrity of the criminal justice system. The appellant
is on bail. The appellant was on 11 September, 20202 admitted to bail in case No. CRB HRE
P 8141/20 on a charge of participating in a gathering with intent to promote public violence,
breach of the peace and bigotry. No trial date has been set. On 19 September, 2020 the
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appellant was admitted to bail in case No. HRE CRB 8360/20 on a similar charge as in case
NO HRE P 814/20.
The appellant is therefore not a stranger to the court which has become some kind of
playing ground for him. The issue is the impact on the objectives of bail in the eyes of the
public and the interests and administration of justice. When an accused person is granted bail,
he is expected to remain as a law abiding citizen and should remain deterred by the fact of his
being on bail for engaging in conduct deemed criminal at law. It clearly undermined the
objectives of the bail system where a person whom a court has reposed confidence in by
granting him or her bail continues to engage in conduct which is adjudged by the court to
constitute a reasonable suspicion that the accused committed the offence charged. These
appears to be confusion on the part of counsel for the appellant to hold that the presumption
of innocent precludes the court from making a finding which is adverse to the accused person
in relation to the alleged commission of the offence. Being on remand means that there are
reasonable grounds to conclude that the accused committed the offence. Therefore being
placed on remand in more than case where the court has determined that there is a reasonable
suspicion that the accused committed the offence charged has a bearing on the character of
the appellant as a non-law abiding citizen or a character who is likely to engage in conduct
which prima facie is found to violate the law. I think that what is important is not merely the
fact that the accused should have previous convictions although this is determinant. It is also
important to appreciate that pending cases show that the accused is given to engaging in
conduct which is found to violate the law albeit proof thereof being based on a reasonable
suspicion basis.
Bail is not an unqualified right. Bail does not only benefit the accused. It is a process
of the court in terms of which the court manages the case before and the accused in terms of
the freedom status of the accused. The accused should not expect that for each case that he or
she comes to court, bail will be granted because it is a constitutional right. It is a qualified
right. Depending on the circumstances of each case, the fact that an accused is no stranger to
the court in that he is in and out of court on allegations of having committed an offence whilst
on bail may be determined to constitute a compelling reason to deny the accused bail. The
Criminal Procedure and Evidence Act in s 117 (3) lists the factors which the court must
consider in determining the existence of any of the listed grounds for denying bail as set out
in s 117 (2). It is provided therein that the court may take into account any other factor which
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in the opinion of the court should be taken into account. It would be unreasonable to expect
the court to be oblivious to the history of the accused in regard to matters before the court
pertaining to the accused wherein the court trusted him to lead a trouble free life as far as the
law is concerned and stand trial in due course but the accused is soon back to Court on other
charges. There is no doubt that the pending cases become a matter of serious concern where
bail has been granted and the appellant continues to offend, is arrested and is brought to court
and adjudged to have a case to answer. This history of the appellant paints a bad picture of
him before the eyes of the court especially in matters such as bail where the question of trust
is an issue. The appellant is trusted by being granted bail and coming back to court on a
different case whilst on bail impact negatively on that trust and brings into focus the
objectives of the bail system and the undermining of the system.
That said, I take note of the provisions of subs (4) of s 117 of the Criminal Procedure
and Evidence Act. It provides that in considering whether bail be granted or denied on the
grounds set out in subs (2) of the same section-
“…….the court shall decide the matter by weighing the interests of justice against the right of
the accused to his or her personal freedom and in particular the prejudice he or she is likely to suffer if
he or she were detained in custody. Taking into account where applicable the following factors
namely:
(a) – (e)……………..
(f) any other factor which in the opinion of the court should be taken into account”
I have agonized on the appellant’s personal circumstances. The applicant is a
University student at Great Zimbabwe University. He is 22 years old and stays with his
parents. He has no savings or assets. He is said to be the President of the Zimbabwe National
Students Union (ZINASU). He is clearly an over enthusiastic youth who is still to mature. I
say so because he appears to have a penchant for engaging in conduct which places him in
trouble without prior reflection. The Covid-19 regulations are clear in regard to the
requirement that there should be no gathering exceeding a certain number. The allegations
made against him without rebuttal was that he joined a gathering and addressed it. Whether
by design or without thinking, it is clear that the appellant was simply enthusiastic. I have
also considered that if the appellant remains in custody this impacts on his right to education
although he is to blame for this by choosing to engage in conduct which place him in
collision with the law. I also considered that the offence charged is finable and that there
would on that account be no basis to infer that the appellant is likely to abscond.
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The fact that the appellant is on bail on pending cases would have been a sufficient
ground to hold that compelling reasons exist for denying the appellant bail. However, as the
law empowers the judge to consider any other factors that in his or her opinion may properly
be considered, I am persuaded upon consideration of the factors I have noted that the interests
of justice will be best met if I give the appellant a last chance to use his bail freedom to stay
as a law abiding citizen and attend his trial. I therefore resolve to and hereby issue the
following order:
(a) The appeal against the refusal by the Provincial Magistrate to grant the
appellant bail pending appeal in case no. HREP 2357/21 by that court’s judgment dated 4
March, 2021 succeeds.
(b) The magistrate’s judgment aforesaid is hereby set aside and substituted with
the following order:
(i) The accused is admitted to bail
(ii) The accused shall deposit $5 000 with the Clerk of Court, Harare Magistrates Court.
(iii) The accused shall report at C.I.D Law and Order, Harare every Fridays, fortnightly
between 6:00 am and 6:00 pm.
(iv) The accused shall reside at house number 10 Mclaren Road, Milton Park, Harare
(v) The accused shall not interfere with witnesses or investigations
Mbidzo Muchadehama and Makoni, appellants’ legal practitioners
National Prosecuting Authority, respondent’s legal practitioners