Thomas Munyawarara and Jennifer Mangombe v The State

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HH 292-12
B 532/12
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THOMAS MUNYAWARARA

and

JENNIFER MANGOMBE

versus

THE STATE

HIGH COURT OF ZIMBABWE

MWAYERA J

HARARE, 14 June 2012

Bail Ruling

R.T. Mupita, for the applicant

C. Chimbari, for the respondent

MWAYERA J: The applicant sought to be admitted to bail pending appeal and the respondent opposed the application. I must mention that the respondent initially consented to the application but subsequently withdrew the accession and filed papers in opposition. The withdrawal is not an issue in the sense that submissions by counsel are not binding to the court but are mere guidelines.  At the end of this whether there is a consention or not the court has to come up with a decision. It is clear from the record attached to the applicant’s bail statement that the applicant together with a co-accused were convicted of criminal abuse of office as defined in s 174 of the Criminal Law Codification and Reform Act [Cap 9:23].

In applications of bail pending appeal the court has to consider the following factors cumulatively.

Whether there are prospects of success on appeal.

Whether there is a risk of abscondment

The potential delay before the appeal is heard.

The case of S v Williams 1980(2) ZLR 644 and S v Lubuschagne 2003(1)

ZLR 468 ably illustrated the factors.

The applicant was refused bail pending appeal by the court a quo which ruled that there were no prospects of success on appeal. NDOU J in the case of Malunjwa 2003(1) ZLR 275 had this to say in respect of appeal against refusal of Bail Pending Appeal. “The approach in this matter is whether the magistrate misdirected him or herself when she refused the appellant bail. The appeal should be directed at the judgment of court a quo. It is the finding of the court that the appellant should attack”.

In casu the applicant argued that there are prospects of success among other things citing that conviction was based on inadmissible evidence, that is extra curial statements admitted without following rules of admissibility, and that the charge was too wide thus defective.

The respondent on the other hand argued that there are exceptions to the general rule of admissibility of extra curial statements and that s 174 was indeed wide but that the applicant understood the charge which they pleaded to.

It is against this background of argument that the court perused the record of proceeding in the trial court and formulated the following findings.

The wording of the charge as 174 is indeed wide however, the substance outlined on the charge sheet and the outline of the State cases clearly depicted a charge of criminal abused of office. The accused who were legally represented appreciated the charge which they pleaded not guilty to, outlining defence outlines. There was no exception or request for the charge to be amended. The conduct alleged to have been perpetrated that of improperly issuing warrants of liberation and improperly releasing the accused from prison is in line with violation of provisions of s 174(1) of Criminal Law Code and it is that to which the applicant proffered a defence for.  There was no prejudice occasioned to the applicant as a result of the charge being proffered in the manner in which it was formulated. On the aspect of relying on extra curial statement I must hasten to say provisions of s 256 of the Criminal Procedure and Evidence Act [Cap 9:02] are clear that rules of admissibility have to be satisfied before evidence is admitted, that is no statement to a person in authority by an accused person, made outside the courtroom, may be produced or quoted unless the rules have been observed that is to say unless the court is satisfied that it was made freely and voluntarily. There are however exceptions to the general rule.  As correctly observed by the respondent counsel on extra curial statement may be admitted as evidence against a co-accused where the co-accused by his/her words or conduct accepts the truth of the statement so as to make all or part of it his or her own and secondly in case of a conspiracy. The case of S v Sibanda 1992(2) ZLR 438 is instructive. In casu the court did not only rely on the co-accused’s implication of the applicant but on other evidence on record. The applicant teamed up with co-accused. There was documentary evidence of warrants of liberation issued by the co-accused who in the normal course of duty would get instructions from magistrates for effecting court orders. In the case one of the magistrates at the station had passed on. The co-accused implicated the applicant and not Mr Ngweshina who also testified as a State witness. The applicant was on duty at the relevant time and the releases were after Mr Zuze’s demise. There was also evidence of the investigating officer relied on for conviction. The applicant raised the defence of bare denial and only sought to raise alibi as the matter progressed. If this defence was available it could have been raised at the outset for the police to investigate.  A perusal of the record of proceeding intoto does not disclose a misdirection that would warrant interference on appeal. The conviction is well grounded on both direct and circumstantial evidence thus minimising any prospects of success on appeal against conviction. As regards sentence abuse of office by a public officer by its nature is a serious offence. The applicant a judicial officer connived with support staff to improperly release inmates that certainly call for a custodial sentence. The suggestion by the applicant counsel that community service or fine would have been considered would amount to mockery of the criminal justice delivery system. Community service based sentence is for trivial offences and not serious offences such as criminal abuse of office. The trial court thus properly exercised its sentencing discreation when it opted for a prison term in the circumstances. There are no prospects of success on appeal as regards sentence.

Having made a finding that there are no prospects of success on appeal against both conviction and sentence the likelihood of abcondment is high given the applicant has already tested the rigours of prison life. The fact that appeals take too long to be processed and finalised cannot stand in isolation to override the other factors which are weighing heavily against the granting of bail.

Accordingly the court finds no misdirection in the court a quo’s decision not to admit the applicant on bail pending appeal. The application is dismissed.

Dhliwayo & Associates, applicant’s legal practitioners

Attorney General’s Office, respondent’s legal practitioners