Josiah Choga and Joseph Choga and Timothy Choga and Amos Choga v The State

### Preamble
1
HMA 22/19
Case No B106/19
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JOSIAH CHOGA

and

JOSEPH CHOGA

and

TIMOTHY CHOGA

and

AMOS CHOGA

versus

THE STATE

HIGH COURT OF ZIMBABWE

MAFUSIRE J

MASVINGO, 21 & 24 May 2019

Date of written judgment: 12 June 2019

Bail pending appeal

F.R.T. Chakabuda, for the applicants

S. Masokovere, for the respondent

MAFUSIRE J

[1]	This was an application for bail pending appeal. It was opposed. I dismissed it soon after argument and gave reasons ex tempore. The applicants say they want to appeal. So they have asked for written reasons. Here they are.

[2]	The four applicants are all brothers. They were convicted in the Regional Magistrates’ court of attempted murder. Each was sentenced to imprisonment for a period of four years, two of which were suspended for five years on the usual condition of good behaviour. The applicants have appealed to this court against both conviction and sentence. The appeal is pending.

[3]	The charge against the applicants arose from a severe assault perpetrated on the complainant which resulted in serious injuries to his person. Among other injuries noted on the medical report, the complainant suffered a fracture of the forearm bones; scalp skin lacerations; bruises on the back and two teeth dislodged. It was noted that the possibility of a permanent injury was likely. In addition, the complainant alleged he was damaged in the groin resulting in his manhood becoming dysfunctional. This additional injury was not recorded on the medical report. The applicants argue that the court misdirected itself by taking it into account.

[4]	The State alleged that, acting in common purpose with their other brothers Isaac and Peter, who have not yet been accounted for and are still at large, all the applicants assaulted the complainant. They denied the charge and alleged it was Isaac and Peter alone who perpetrated the assaulted. The court a quo believed the State had proved its case beyond any reasonable doubt and convicted.

[5]	The following facts were all common cause. The assault on the person of the complainant did happen. The medical report stated all the injuries except those in relation to the dysfunctional penis. The complainant is a polygamist with eight wives, two of them the applicants’ sisters. The complainant lives in Ganyani village in Zano, under Chief Chikwanda, in Masvingo Province. The applicants live in a cooperative community under Chief Nhema in Shurugwi, in the Midlands Province. Although not stated, there is an appreciable distance between these places, probably around one hundred kilometres.

[6]	The following facts were also common cause. One early morning in October 2018 the complainant’s two wives who are sisters to the applicants, arrived at the applicants’ residences alleging that they had been chased away by the complainant on allegations of adultery and witchcraft. The applicants, together with their other brothers Isaac and Peter, drove all the way to the complainant’s homestead, arriving at between 05:00 hours and 06:00 hours. The complainant was still asleep. The applicants called him out, ostensibly to discuss or resolve his marital dispute with their sisters. He did not immediately come out. One or other of the brothers forced open the door and entered. Two followed inside. There was an altercation. The complainant eventually managed to escape from the house and ran away from the homestead. He had been injured.

[7]	The details of the assault were severely contested. The State’s version, in summary, was this. All the applicants and their other brothers, Isaac and Peter, were armed with pieces of wood or logs, a knife and an axe. On arrival at the complainant’s compound the applicants and their two brothers Isaac and Peter ordered him out of the house. They thought he was taking too long to come out. Isaac or Peter pushed open the door and entered. The first applicant followed. There was an altercation. Peter attacked the complainant with an axe and Isaac with a knife. The first applicant lifted some container with water and poured it onto the complainant. At some point the complainant managed to get out of the house. But outside he was met by the rest of the applicants. They assaulted him indiscriminately with their logs. Efforts to quell the fight by one or two of the complainant’s other wives, Morleen Chitendera (“Morleen”) and Elizabeth, and a neighbour Samuel Matiza (“Matiza”) failed. But eventually the complainant managed to escape and run away.

[8]	The applicants’ version, also in summary was this. Their intention on driving all the way to the complainant’s homestead was so that they could resolve the complainant’s marital dispute with his two wives, their sisters. When they arrived, they called him out but he refused to come out. It was only Isaac and Peter who first entered the complainant’s bedroom. The rest of the applicants remained outside until they heard evident sounds of a struggle inside. The first applicant entered to investigate. He found Peter in combat with the complainant who was armed with an axe. In order to separate the two, the first applicant lifted some container with water and drenched the two in order to separate them. The complainant managed to escape and run away. He must have got injured when he fell down as he ran away.

[9]	The applicants deny that any of them assaulted the complainant. They allege it was only Isaac and Peter who had an altercation with him. They argue that there were discrepancies in the State version. One example is that Morleen, one of the complainant’s wives who gave evidence, purported to testify on what happened whilst Isaac, Peter and the complainant altercated inside the hut yet she herself was not yet at the scene, let alone inside the house. They argue that Morleen’s evidence was biased on account of her marital interests.

[10]	The applicants further argue that the account of the assault differed amongst the State witnesses. They say the complainant himself mentioned three incidents but that none of these was corroborated by any of the other State witnesses. They say Matiza, for example, only mentioned one incident of assault. They say they do not recall seeing him at the scene anyway.

[11]	On sentence, the applicants argue that it was excessive. They claim the court misdirected itself in failing to appreciate that the applicants have heavy family responsibilities. Among them they have over seventy children. Except for one of them, the all have more than one wife, and all have several children. They are first offenders. A prison sentence will bring hardship to their very large families. A non-custodial sentence should have been more appropriate given that the State evidence proved no more than an assault, not attempted murder.

[12]	I refused the applicants bail because I was satisfied that their appeal has no prospects of success. The evidence against them is overwhelming. Even the intrinsic evidence that they themselves admit was enough to convict. At best, they merely acted in common purpose with Isaac and Peter who are both still at large. But that was enough to convict. The assault was brutal and fierce. They used dangerous weapons such as an axe and a knife. The injuries sustained by the complainant could be life threatening.

[13]	At any rate, the first applicant almost admits his involvement. He tries to down play his actions in hurling water at the complainant. He tries to stress that the water was not boiling and that all his intention was to separate Peter and the complainant who were fighting. But even on this version, that was an assault. However, the State witnesses’ evidence was more credible and believable. All the applicants participated in indiscriminately assaulting the complainant. The so-called discrepancies in Morleen’s evidence are trivial. All the State witnesses were consistent on how the assaults happened. The applicants say they did not even see Matiza, the complainant’s neighbour who arrived at the scene in the middle of the scuffle. Matiza was quite credible.

[14]	All the applicants do is to resort to nit picking. Nothing turns on the issue of the complainant’s alleged dysfunctional penis. The medical report alone is evidence of severe injuries. At any rate, the court a quo merely noted what the complainant himself had said concerning the damage to his manhood. I do not see an appeal court upsetting the conviction or the sentence.

[15]	The power of this court to admit a person to bail pending appeal is governed by s 123(1)(b) of the Criminal Procedure and Evidence Act, [Cap 9:07]. This section invokes the same bail factors as listed in s 117 and 117A of that Act.

[16]	Among those bail factors listed in s 117(3)(b) of that Act is whether if  released on bail, there is a likelihood that the accused will not stand trial, in this case, appeal. One of the factors the Act directs the court to take into account is the ties of the accused to the place of trial, in this case, appeal. The applicants say they are all gainfully employed at Unki Mine in Shurugwi. Counsel stresses that coupled with their heavy family ties and responsibilities, and their fixed places of abode, they will not abscond but will wait to prosecute their appeal.

[17]		But the court also has to consider all the factors together. In the present case some of the more relevant ones are the nature of the offence and the gravity of the penalty; the strength of the State case and the corresponding incentive of the accused to flee.

[18]	In a nutshell, in an application for bail pending appeal, the applicant needs not prove good prospects of success of the appeal beyond any reasonable doubt. All he needs do is to show that the appeal is free from predictable failure: see S v Hudson 1996 (1) SACR 431 (W) and Peter Chikumba v State 2015 (2) ZLR 382 (H). If the applicant has a reasonably arguable case on appeal, what I referred to in Chikumba as “some fighting chance”, then all else being equal, bail should be granted.

[19]	That Peter and Isaac are on the run should not on its own be held against the applicants. But what is relevant is that in the commission of the crime they all acted in common purpose. Furthermore, the applicants were arrested at a police station only after they had been lured to go there under the pretext that there were efforts to discuss and resolve the issue amicably. That was the version proffered by the State and accepted by the court. The applicants admit they did not report Isaac and Peter to the police for assaulting the complainant, something they say had been contrary to the original plan. Their reason for not reporting was that as members of an apostolic sect, they believe in resolving family disputes within the family. That is taking the courts for granted. It is unbelievable beyond any reasonable doubt. What is believable is that they all had no intention to submit to the law after the offence.

[20]	I concluded that the applicants have no “fighting chance” on appeal. I concluded that they were as guilty of attempted murder as they come. Admitting them to bail would just compromise the administration of justice. The sentence meted out to them was appropriate for the type of offence with which they were convicted. That is why I dismissed the application.

12 June 2019

Tavenhava & Machingauta, applicants’ legal practitioners

National Prosecuting Authority, respondent’s legal practitioners