The Prosecutor General v Ali Mohammad

### Preamble
1
HH 44-21
HACC (B) 31/20
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THE PROSECUTOR GENERAL

versus

ALI MOHAMMAD

HIGH COURT OF ZIMBABWE

KWENDA J

HARARE, 6, 8 and 12 January 2021 & 8 February 2021

APPEAL AGAINST GRANTING OF BAIL

G Ziyadhuma & E Makoto, for the appellant

P Tanyanyiwa & A Rubaya, for the respondent

KWENDA J: This is an appeal against the decision of Anti-Corruption Court at Harare Magistrates Court granting the respondent bail pending trial.

Due to manpower constrains during the National lockdown, here are my brief reasons for my decision.

The respondent was admitted to bail on 13 November 2020 on the following conditions: -

to deposit ZAW100 000 as a bail deposit

to surrender his passport to the Clerk of Court at Harare Magistrate Court

not to interfere with State witnesses

to reside at hours No. 6 Devine Road Belvedere in Harare until his trial is

finalized

The State was aggrieved by the decision and appealed against the granting of bail. The grounds of appeal are as follows: -

The court a quo erred and misdirected itself in finding that the State case is weak against the respondent when the evidence of the Investigating Officer established a strong case for the State, regard being had to the available documents forming part of the evidence which show that the gold in question originated from the respondent’s company

It was the respondent who facilitated his co accused’s (Henrietta Rushwaya’s travel arrangements to Dubai and the illegal exportation of the gold.

The Court a quo erred and misdirected itself by making the finding that the respondent is not likely to interfere with witnesses despite cogent indicators to the contrary regard being had to the cogent evidence placed before it that the respondent had already interfered with two Police officers namely Paul Shoko and Paul Chimungu who are on remand for defeating and obstructing the course of justice.

The court a quo erred and misdirected itself by disregarding the fact that the respondent,

a Pakistan National, has an expired business visa, which is cogent evidence of his like hood of his abscond

The court a quo erred and misdirected itself by disregarding the seriousness of the offence of which if taken cumulatively with the above factors is likely to induce the respondent to abscond.

The appellant is facing two charges. Firstly, he is charged with smuggling gold in contravention of s 182 (1) of the Customs & Excise Act [Chapter 23:02]. The State allegation is that one Henrietta Rushwaya was intercepted at the Robert Gabriel Mugabe Airport trying to smuggle slightly above 6 kilograms of gold out of the country to Dubai. The documents recovered by the Police from Rushwaya which she was using to export the gold had been originated by the respondent. The gold was destined for an entity known as Ali Japan 7986, a company domiciled in Dubai which has links with the respondent. The attempted exportation was illegal. The respondent was not authorised to export gold. The respondent was acting in common purpose with Henrietta Rushwaya to export the gold illegally. Secondly, the appellant is charged with unlawfully dealing in or possessing gold in contravention of s 3(1)(a) of the Gold Trade Act [Chapter 21:03] in that he acted unlawfully when he dealt with or gave possession of the 6kgs of gold to Rushwaya contrary to restrictions on his permit. Following the arrest of Rushwaya and her accomplice at the airport and the recovery of documents linking the respondent to the alleged smuggling senior Police officers Paul Shoko and Paul Chimungu went to investigate the respondent’s involvement in the smuggling. For some reason, instead of arresting the respondent, they merely recorded a statement and concealed the facts which linked the respondent with the smuggling. They changed the State outline to expunge reference to the respondent and facts linking him to the smuggling.

At the hearing I explained to both parties that in terms of s 121 (5) of the Criminal Procedure and Evidence Act [Chapter 9:07], in the event that I found a misdirection by the court a quo, I would be at large to consider whether or not bail was properly granted or merited. If not, I could set aside the court a quo’s decision and substitute it with an order denying bail. However, in the event that I decided that notwithstanding the misdirection, bail was still merited, I would be at large to consider appropriate bail conditions. In light of the possibility of this court revisiting the bail conditions, Mr Rubaya reiterated the respondent’s offer of surety in the form of an immovable property. He undertook to submit to the court by way of a Notice of filing, a copy of the title deed for a property in Hatfield offered by the appellant as surety. I reserved judgment pending the production of the titled deed. Mr Rubaya neglected to file the title deed for more than two weeks. The record remained incomplete without the document, thereby delaying this judgment. My assistant had to follow up at my request, whereupon the title deed was submitted with the Notice of filing. That explains the delay in handing down judgment.

After hearing argument by counsel for the parties I make the following findings:

The court a quo misdirected itself in concluding that the basis for the smuggling charge 	was not clear. The documents suggest that the respondent created the documents which 	were used in attempting to take the gold out of the country. It is correct that the respondent 	has links with the company in Dubai where the gold was destined. He is the director and 	shareholder of the company in Zimbabwe with details appearing on the exportation papers. 	His innocent explanation is his defence on the merits but does not at this stage dislodge the 	fact that he has been linked to the offence.  However, smuggling normally attracts a heavy 	penalty of a fine although there is the option of a prison term. The possibility of a non-	custodial sentence is persuasive in favour of the accused in considering bail. The court a 	quo therefore erred in failing to realise that the respondent had been sufficiently linked to 	the crime of smuggling.

The respondent’s alleged conduct has led to the arrest of two senior Police Officers on a 	corruption charge. It is alleged that they changed the State outline to favour the respondent. 	It is a fact that the two Police officers are on remand on the corruption charge and that is a 	relevant factor. The respondent’s defence is a matter to be considered at the trail. This 	factor militated against the granting of bail. The court a quo erred in failing to properly 	take the factor into account.

The respondent is a holder of a permit to possess and deal in gold. He may therefore 	lawfully possess gold provided he deals with it in accordance with the conditions of his 	permit. He contravened the terms of his permit by giving the gold to Rushwaya and also 	by attempting to unlawfully take it out of the country. The State intended to charge him 	with unlawfully dealing with an authorized person. Apparently the State intended to charge 	the appellant with failing to deal with the gold in terms of the conditions of his permit and 	did not word the charge correctly. The charge was in elegantly drafted but that can be 	corrected since the trial has not commenced.

The fact that the respondent is a foreigner will not necessarily lead to the respondents’ 	abscondement because suitable bail conditions can be imposed to discourage him from 	absconding and remaining within the jurisdiction until his trial is concluded. However, 	there is need to ensure that he remains in the country until he is tried. His passport was 	therefore properly impounded. As an incentive to make sure that he remains within the 	jurisdiction the court should have required appropriate surety. As soon as he leaves the 	country there is no guarantee that he will return. An immovable property and impounding 	his passport will therefore discourage him from absconding. The trial is unlikely to be 	delayed because corruption matters are expected to be tried without delay as special anti-	corruption courts have been set out throughout the country to give priority to cases of 	corruption. It is important that such cases be dealt with expeditiously so that those who are 	innocent are quickly cleared of the stigma associated with (a) corruption charge(s) and 	those who are guilty are dealt with swiftly and effectively. It is important that the bail 	system must not injure public confidence in the national resolve to fight corruption. I take 	this opportunity to observe that judicial officers presiding in anti-corruption courts must 	demand that trials should start immediately. A person is arrested on a charge of corruption 	because all the ingredients have already been ascertained to be present. There is rarely need 	for further investigation. Corruption trials have no reason to be delayed. Trial dates must 	be set on the first date of appearance if the trial does not commence immediately on the 	initial appearance in court. Special anti-corruption courts are slowly being turned into bail 	courts. Instead of dealing with the merits of corruption allegations, courts are inundated 	with bail applications and variations of bail conditions without the trials taking place. The 	drama associated with the side shows must be resisted by all those involved in the anti-	corruption courts if the courts are to be effective discharging their mandates of quickly and 	swiftly dealing with corruption matters. Section 117 (1) (iv) is unambiguous in as far as it 	states that bail matters must be handled in a manner uundermine or jeopardise the 	objectives or proper functioning of the criminal justice system, including the bail system. 	The respondent would also be within his rights to demand a quick trial so that the 	restrictions on his freedom can be removed.

The misdirections leave this court at large.  I am of the view that fears of abscondment can be adequately be allayed by the imposition of conditions which will combine to make it unlikely for the respondent to leave the jurisdiction of the court. In the result it is ordered as follows:

The appeal therefore succeeds in part in that: -

It is ordered that the respondent’s bail conditions be set aside and replaced with the following:

(a)	The accused shall deposit the sum of ZW100 000 with the Clerk of Court at Harare Magistrates Court.

(b)	The accused shall surrender his passport to the Clerk of Court at Harare Magistrates Court, Harare to be held until his trial is concluded.

(c )	The accused shall not interfere with witnesses and investigations.

(d) 	The accused shall reside at 6 Devine Road, Belvedere, Harare until his trial is concluded.

( e)	The accused shall report to the Police at Milton Park Police Station once a month on the last Friday of the month.

(f)	The accused shall surrender, as surety, all immovable property known as Lot 1 of Lot 35 A Hatfield Estate measuring 4267 m2 held by Annah Munyanyi under Deed of Transfer number 2360/2020.

(g)	The Clerk of Court shall cause the necessary Caveat to be registered or endorsed against the property.

For the avoidance of doubt, the conditions imposed by the court a quo shall remain and additionally the respondent shall comply with para (f) forthwith and in any event not later than the end of the business day on 9 February 2021.

National Prosecuting Authority, appellant’s legal practitioners

Tanyanyiwa & Associates, respondent’s legal practitioners