Judgment No. HB 126/2002

Case No. B 160 –1/2002

KHULEKANI NCUBE

And

NGONENI MAFU

Versus

THE STATE

IN THE HIGH COURT OF ZIMBABWE

NDOU J

BULAWAYO 9, 15 & 24 OCTOBER 2002

J James for the applicants

Mrs M Cheda for the respondent

Bail Application

NDOU J: This is an application for bail pending extradition to South

Africa (or trial in the event the Zimbabwe Attorney General decides to prosecute the

accused persons in this jurisdiction).

The salient facts of the matter are the following. On 27 December 2001, a

case of armed robbery took place in South Africa at the Johannesburg International

Airport. A number of male assailants, armed with AK 47 assault rifles and pistols

carried out the robbery. The property stolen in this robbery comprised US$9,5million

and jewellery. The total value stolen is estimated at ZAR113 million. A female

security guard was shot and seriously wounded in the course of the robbery. A total

of seven (excluding the applicants) alleged robbers were arrested, some of them in

Zimbabwe. A picture of a well planned and well executed robbery emerges. They

are already standing trial in South Africa. The applicants were allegedly implicated

by those arrested and already standing trial in South Africa.

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They are on the wanted list of the South African police. The South African police

sought the assistance of the Zimbabwe Republic Police to locate, arrest and extradite

these two. The Zimbabwe Republic Police traced the two and arrested them on 23

September 2002. The Zimbabwean police were armed with a warrant of arrest issued

in South Africa in the name of Khulekani Nxobu and Sosha Ndaba Mafu. The two

unsuccessfully challenged their being placed in remand. The latter issue is not before

me in this application. Various issues were raised by counsel. I propose to firstly

deal with the issue of whether the Attorney General can charge the applicants in this

jurisdiction from the facts of this case.

1. Can the State charge the applicant for the armed robbery in this jurisdiction?

As alluded to earlier on, the offences occurred outside the jurisdiction in this

court. For the state to have jurisdiction the armed robbery must have “continued” to

our jurisdiction. In any event, is armed robbery a continuing offence? Robbery is not

a continuing offence, theft is. See S v Makhuta 1969 (2) SA 490 (O) at 493A-B.

Whatever might have been the position in Roman and Roman-Dutch, it has been

decided by our courts that theft is a continuing crime – see S v A 1979 (4) SA 51 (R).

On page 52F-H of the judgment GUBBAY J stated as follows:

“The general principle adopted hitherto by Rhodesian and South African courts is that the laws of a country only to acts committed within its geographical boundaries. See Dugard South African Criminal Law and Procedure Vol 4 at 58-59; Gardiner and Lansdown South African Criminal Law and Procedure 6^th Ed Vol 1 at 26 and 35. The offence of theft provides an exception in that, being an continuing offence, if stolen property is imported into the country by the thief jurisdiction over him will be assumed. See The Queen v Philander Jacobs (1876) 6 Buch 171 at 175; The Queen v Herbet 1880 Kotze’ 187; R v Van Rensburg 1921 SR 1 at 2-3; R v Saal and Another 1933 CPD 13 at 16; Cloete v R 1954(1) PH H95; R v Masupe and Another 1967(3) SA 530 ( R) at 531C; S v Makhutla en’n arder 1968 (2) SA

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768(O) at 772F-G; 1969 (2) SA 490 (o) at 493C; S v Mathebula and Another 1969 (3) SA 265 (N) at 266C-D; S v Muleya 1977 (2) RLR 149 (GD) at 150E-G. None of these decisions suggest that an alternative basis for assuming jurisdiction would be where the consequences of depriving the owner of his property outside the jurisdiction was harm felt by him within the jurisdiction. The assumption of jurisdiction is based fairly and squarely on the premises that theft is a continuing offence."

It would seem to me that it is appropriation in the theft that is a continuing act.

Robbery, as charged in casu, is not a continuing offence – see S v Makhutla supra; R

v Von Elling (1945) AD at 245; Principles of Criminal Law – J Burchell and J Milton

1^st Ed page 497E; Hale (1978) 68 Cr App Rep 415; Pitman’s Criminal Law 1^st Ed at

page 150 and Criminal Law – Smith and Hogan, 6^th Ed page 504. In the

circumstances, at most, the state can only charge the applicants with theft of US$400

on the basis that they brought it into the jurisdiction of this court. The factual basis

for bail pending trial in this jurisdiction would be the theft as opposed to the armed

robbery.

2. Bail Pending Extradition

Extradition is governed by the Extradition Act [Chapter 9:08]. The Act

provides for two main forms of extradition. The first concerns extradition under

agreements between Zimbabwe and foreign states – see section 5(1) of the Act and

Constitutional Law of Zimbabwe – Greg Linington at page 501.

The second form of extradition is that to and from designated countries – section 5(2)

of the Act. The underlying principle in extradition is the return of a fugitive criminal

from the country where he is found to the country he is accused of, or has been

convicted of an offence. The objective of extradition is to prevent criminals from

escaping justice by placing themselves beyond the jurisdiction. The background has

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to be highlighted in order for one to appreciate the issues involved in this application.

Coming to bail pending extradition I agree with the observations made by the late J K

Magunhu in his article entitled “The Law of extradition in Zimbabwe” published in

the Legal Forum, 1993 Vol 5 No. 3. At page 22 the learned writer stated:

“Bail and legal representation

The concept of state sovereignty includes the ideal that all persons who are

lawfully within the geographically territory of a given state are subject to its laws.

There are, of course, exceptions such as diplomats and visiting heads of state who are

largely not subject to the laws of the host state. In the context of extradition the

objective is that all persons, regardless of their nationality or residence status within a

country are entitled to the protection of its laws and to be treated as equals in the eyes

of the law. … It is in recognition of the above ideals that the Act in section 26(1)

provides that a person who has been arrested for the purposes of extradition shall have

the same “right” to bail as a person arrested in connection with a criminal offence

committed within Zimbabwe.”

It, therefore, follows that there is no material difference between the principles

Governing bail pending trial and bail pending extradition. The state opposes this

application and I propose to deal with each reason for such opposition.

1. That the applicants have dual citizenship

I have already indicated above that according to the Act nationality of the

fugitive is immaterial as it allows the Minister to enter into agreements which permit

the extradition of “any person whatsoever, whether or not they are nationals of both

Zimbabwe and the foreign country concerned – section 3(2)(b). The fears of the state

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would be understandable if the matter did not involve South Africa. In casu, the

arrest of the applicants is at the behest of the South African police. The question of

them absconding to the country of the other nationality does not arise. Although the

question of dual citizenship may be a factor in bail applications, in this case it does

not count against the applicants.

2. Applicants facing a serious offence

The offence for which extradition is sought, is very serious both in

Zimbabwe and South Africa. The court can take judicial notice of this notorious fact

from a reading of reported judgments of the South African courts. In this case if the

applicants are convicted of armed robbery as outlined in the facts there is a real

likelihood of lengthy prison terms being imposed and thus the applicants will be

tempted to abscond. The inducement to abscond is real - see S v Hudson 1980 (4) SA

145 (D); S v Ito 1979 (3) SA (w) 740 and Dumisani Ndlovu v State HH 177-01 at

page 4. This is a relevant factor in a bail application but on its own not a ground for

refusing bail – see State v Hussey 1991 (2) ZLR187 (S) at 190 A-B; State v Mambo

HH-47-92 at page 2 and Aitken and Ano v The Attorney General 1992 (1) ZLR 294

(S). The seriousness of the offence should be considered in relation to the inducement

of abscondment. If there is no likelihood that this factor will induce abscondment

then the court should lean in favour of and not against the liberty of the applicant.

2. Interference with evidence

The allegation in this regard is that the applicants attempted to bribe members

of the South African police with US$80 000. If these allegations are proven, then this

is a clear and strong case of interference. The South African police gave details of

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this allegation. The applicants, it is alleged, know the police witnesses and

informants. In such a case, the possibility is real that they will interfere or temper

with evidence see S v Chiadza 1988 (2) ZLR 19 (SC); S v Maharaj 1976 (3) SA 205

(C & CLD); S v Maratera SC-93-91; S v Aitken and Another supra. The other factor

listed by respondent are covered by what I have outlined above.

Mr James, for the applicants criticised the piecemeal fashion in which the

respondent produced its opposing documents. I agree that this is a less than ideal way

of presenting evidence in court and should be discouraged. I, however, cannot refuse

the respondent an opportunity to use such evidence received after the commencement

of the bail application. Bail applications are sui generis. There is no prescribed

format or procedure. It is the duty of the presiding officer, with due allowance for the

circumstances of each case, to determine the way in which each party must submit its

evidence. In this regard, in S v Nichas 1977 (10 SA 257 (C) DIEMONT J remarked as

follows;

“It is a notorious fact that in a majority of cases exparte statements are made by both the defence and by the public prosecutor who intimates what the police objections are. There are no formalities; no evidence is led, no affidavits are placed before the court and the record is so meagre that there may be little or nothing to place before the superior courts if the matter is taken on appeal. This easy-going procedure has both advantages and disadvantages.”

This procedure is informed by, inter alia, the fact that bail applications are

usually urgent applications – see also S v Pienaar 1992 (1) SACR 178 (W) and

Dumisani Ndlovu v State supra at page 8.

Mr James also pointed out what the Assistant Commissioner S D Schutte,

Head of Serious and Violent Crime of the South African police stated in his

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correspondence to Senior Assistant Commissioner Mandizha. The relevant portion

reads, “After the arrest of the two above mentioned suspects in Zimbabwe the

investigating officer Captain Olivier discussed their arrests with the state advocate,

who came to the conclusion that the two suspects currently arrested in Zimbabwe

cannot be charged with the accused already standing trial on the Johannesburg CAS

338/12/2001 and that at this stage there is insufficient evidence against the arrested

suspects to ensure a conviction. It will however be of immerse value if the

fingerprints of the mentioned suspects would be made available to this office in order

to test their prints against these (sic) retrieved at the relevant crime scene.”

From documents before me the prints of the applicants were sent to the South

African police. This resulted in the latter requesting the extradition of the applicants.

Whatever their views were when they wrote the initial letter it seems that they have

since changed. They now believe they have a case against the applicants. This is the

context in which the above statement should be understood. Looking at the totality of

the facts before me I am satisfied the applicants have not discharged the onus, on a

balance of probability, that the court should exercise its discretion in favour of

granting them bail. In discharging this burden the applicants, in casu, must show that

the interests of justice will not be prejudiced, namely, that it is unlikely that they will

not be available for extradition or otherwise interfere with the administration of

justice – see De Jager v Attorney-General, Natal 1967 (4) 143 (D).

An attempt to bribe the South African police details indicates a real possibility

of interference with evidence. Further, the seriousness of the offence point out there

is a real possibility of inducement for the applicants to abscond. If convicted they are

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likely to face lengthy imprisonment as firearms were used and a female security guard

was seriously wounded in the course of the robbery. Applicants moved from South

Africa to Zimbabwe after the offence.

On these facts, the applicants have failed to establish, on a balance of

probability, that they are suitable candidates for bail and I, therefore, dismiss their

applications.

James, Moyo-Majwabu & Nyoni, applicants’ legal practitioners

Office of the Attorney-General, respondent’s legal practitioners