Tendekai Madongorere and Julius Punungwe v The State

### Preamble
1
HH 363-21
B1270/21
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TENDEKAI MADONGORERE

and

JULIUS PUNUNGWE

versus

THE STATE

HIGH COURT OF ZIMBABWE

CHAREWA

HARARE, 30 June & 8 July 2021

Bail Application

H Chitima, for appellants

Ms S Maunganidze, for respondent

CHAREWA J: The appellants are being charged with fraud as defined in s 136 or alternatively, forgery as defined in s 137(1)(a) of the Criminal Law (Codification and Reform) Act [Chapter 9:23]. Their application for bail pending trial was refused by the magistrates court sitting at Chitungwiza on the basis that

The circumstances of the case are such that if convicted, no court can consider a non-custodial sentence in circumstances where, this, coupled with the gravity of the offense is likely to induce applicants not to stand trial.

The case against them is strong given that the computer seized from first appellants residence and documents seized from both appellants homes and for which they signed seizure forms demonstrate a high probability of incrimination which may lead to abscondment.

Further the nature of the allegations against appellants is inimical to public peace and security given that appellants are alleged to have been found in possession of fake state security identity cards and national documents normally issued by key government departments.

Therefore even stringent bail conditions may not suffice given the likely jeopardy to ongoing investigations and the likelihood for appellants not to stand trial, thus the interests of justice far outweigh the presumption of innocence and personal circumstances of the appellants. (see p.24-25 of the record).

Save to emphasise that regardless of whether or not the appellate court, in the same circumstances, might have granted bail, refusal of bail can only be set aside where the court a quo misdirected itself, the law in relation to appeals against refusal of bail is trite and requires no restatement.

In appealing against the decision of the court a quo, the appellants submit that the court a quo misdirected itself in denying them bail on the basis of their being a flight risk by considering the seriousness of the offence and failing to give due weight to the personal circumstances of the appellants and that they have arguable defences. Moreover, the seriousness of the offences is predicated on an improper splitting of charges. And in any event, this is an offence where a non-custodial  sentence may be appropriate. In any case the investigating officer did not deny that astringent bail conditions could suffice, more so since there was no evidence of past abuse of bail conditions.

I cannot agree with the appellants. The court a quo did not consider seriousness of the case in isolation, which would have been a misdirection. The court was careful to encompass all the circumstances of the case: that it involved the generation of identity documents of security operatives of the state and other national documents and did not disagree with the State that this was an offence which impact was likely to endanger the safety of the public. Clearly, it goes without saying that where non-security agents can pose as such because of fake documentation allegedly generated by appellants, it is but a short step to undermining peace and security which would render the public unsafe. For instance, the production and dissemination of fake drivers’ licences are likely to lead to persons without the necessary driving skills on the roads, causing road carnage. The production and dissemination of fake Covid19 certificates exposes the public to the pandemic and dissemination of fake national cards and state security agents’ identity may result in undesirable elements gaining access into the country and fermenting unrest. I cannot therefore agree that the issue of peace and security is not a by-product or offshoot of public safety.

Further, while acknowledging that the unlawful splitting of charges would made the offence look more serious, the decision of the magistrate on the gravity of the offence was not predicated on the number of counts. Rather it was predicated on the insidious nature of the offence where fake national and security documents are generated to the detriment of public safety. It is for this reason that the magistrate opined that it is unlikely that any court would render a non-custodial sentence, thus raising a reasonable apprehension of abscondment.

While an investigating officer may not deny that stringent bail conditions will suffice, at the end of the day, the decision rests with a judicial officer whether, on a balance of probabilities, the interests of justice outweigh the presumption of innocence and personal circumstances of an applicant to warrant the grant or denial of bail. It is for this reason that any concession to bail must be scrutinized by the judicial officer to establish whether it finds favour with the court. The opinion of the investigating officer, while important is therefore not decisive.

Consequently I cannot find that there was any misdirection by the court a quo, that appellants are a flight risk given that they were found with the wherewithal and proof that they are alleged to have the skill and knowledge to generate security documents, are likely to receive lengthy custodial sentence, and on balance, their personal circumstances are outweighed by the exigencies of the interests of justice.

In the premises, I agree with the court a quo that, in the interests of justice, appellants are not suitable candidates for bail.

The appeal against refusal of bail is dismissed.

Mutandiro, Chitsanga and Chitima, appellant’s legal practitioners

National Prosecuting Authority, respondent’s legal practitioners