Judgment No. HB 34/2003

Case No. HCB 5/2003

ABRAHAM THOMAS MALUNJWA

Versus

THE STATE

IN THE HIGH COURT OF ZIMBABWE

NDOU J

BULAWAYO 24 JANUARY & 6 MARCH 2003

C.T. Hikwa for the applicant

Mrs M. Cheda for the respondent

Bail Application

NDOU J: The appellant applied for bail pending trial before a Bulawayo

Magistrate and on 26 November 2002 and the latter dismissed the application. He

now appeals against such dismissal. The appellant is facing two charges of theft by

conversion and another charge of contravening section 3(1)(a)(I) as read with section

15(2)(e) of the Prevention of Corruption Act [Chapter 9:16]. It is alleged that

between 8 January 2002 and 31 July 2002 and in Bulawayo, the appellant, who then

was a Detective Inspector, was part of a team of Zimbabwe Republic Police detectives

assigned to look for suspects Khulekani Ncube, Ngoneni Mafu, and Sidingumuzi

Sibanda. The latter were being sought in connection with an armed robbery that

occurred at the Johannesburg International Airport, South Africa, on 27 December

2001 where cash and jewellery worth ZAR117 million were stolen. In the course of

his duties, it is alleged, the appellant, on or about 8 February 2002, recovered

Z$950 000 suspected to be proceeds from the robbery from Thabile Dube of number

B 214 Njube who is one of the suspect’s aunt. The appellant allegedly converted the

said amount to his own use. On 6 February 2002 the appellant recovered Z$3 million

suspected to be proceeds from the robbery from one Sithembiso Dube, who is suspect

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Sidingumuzi’s mother. He allegedly converted part of that amount, i.e. around

Z$936 500, to his own use. In July 2002 the appellant allegedly made several calls to

suspect Sidingumuzi and his sister Ntokozo Sibanda, soliciting for a bribe of

US$15 000 in order not to arrest Sidingumuzi for the South African armed robbery

case.

In the court a quo, the appellant was content with limiting his application to

oral submissions by his legal practitioner. He did file an affidavit in support of his

application. Procedurally, there is nothing with that. In Dumisani Ndlovu v The State

HH-177-01 at page 8 of the cyclostyled my judgment I referred to what DIEMONT J

said in S v Nichas 1977(1) SA 257 (C):

“It is a notorious fact that in a majority of cases ex parte statements are made both by 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 drawbacks.”

This approach by the appellant, however, impacts on the quality of the

evidence in support of the application. This is so such cases where the other party

decides to call viva voce evidence in opposing the application.

Approach

The approach in this matter is whether the magistrate misdirected herself when

she refused the appellant bail. I need to emphasise this aspect because the matter was

argued as if I am hearing the bail as a court of first instance. The appeal should be

directed at the judgment of the court a quo. It is the findings of the court a quo that

the appellant should attack. From her judgment, the learned trial magistrate made a

positive finding on the credibility of the sole witness who testified, the investigating

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officer, Chief Superintendent Nyathi. This finding, in my view, is unassailable. In

any event the appellant does not seem to challenge such a finding on the demeanor of

Officer Nyathi. Such a positive finding does not necessarily mean that the appellant

should have been refused bail. That decision is for the court to make after weighing

all the facts at its disposal. It seems to me that the learned trial magistrate arrived at

her decision on the basis of risk of abscondment and interference with the

administration of justice. I propose to examine each of these findings to determine

whether or not there were misdirections. The primary question for determination by

the court a quo, was whether the appellant will stand trial or abscond. Of equal

important was whether he will influence the fairness of the trial by

intimidating/influencing witnesses or tampering with evidence. It is trite that in bail

applications the court has to strike a balance between the interest of society (the

applicant should stand trial and there should be no interference with the

administration of justice) and the liberty of an accused person (who pending the

outcome of his trial is presumed to be innocent) – see Attorney-General, Zimbabwe v

Phiri 1988 (2) SA 696 (ZHC); R v McCarthy 1906 TS; S v Mhlauli and Ano 1963(3)

SA(C) at 796B; S v Hussey 1991(2) ZLR 187 (SC) and S v Aitken (2) 1992(2) ZLR

463 (SC)

Risk of Abscondment

There are factors which may, either on their own or on a cumulative basis,

assist the court in making a proper assessment of the risk. The court a quo, referred to

the seriousness of the offences as a source of inducement to abscond on the part of the

appellant. In casu, the appellant was a detective inspector who is alleged to have

stolen sums of money recovered during the course of his duties. In the first count the

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stolen large amount is Z$950 000 and in the second count Z$936 500. On the third

count he is alleged to have corruptly tried to solicit a bribe of US$15 000 from a

person who he knew was wanted for a very serious crime of armed robbery

committed outside our jurisdiction. Each of these three offences would attract

imprisonment if the appellant is convicted. Cumulatively they would attract a very

lengthy term of imprisonment. By virtue of his position and experience in the police

force the appellant is obviously aware of these possible consequences. In the

circumstances, the court a quo did not misdirect itself in this regard. On its own, this

factor, in the circumstances of this case, would not justify refusal of bail. It seems to

me that the court a quo took it cumulatively with other factors as evinced by the

remark on page 3 of the judgment.

“The other reason was the seriousness of the offence.” (emphasis is mine)

The likelihood of a lengthy prison term being imposed (i.e.seriousness of the

offence) is a factor to be taken into account in assessing the risk of abscondment – see

S v Hudson 1980(4) SA 145 (D); S v Ito 1979(3) SA (w) 740 and Dumisani Ndlovu v

S (supra). There is no misdirection in the court a quo’s finding the offences are

serious and that this may likely be inducement to abscondment on the point of

appellant. This is one of the factors taken into account in refusal of bail.

Interference with the administration of justice

The court a quo found that the likelihood of interference with evidence by the

appellant was high. It also found that there had already been attempts to do so. It was

found that the appellant works with most of the witnesses who were his subordinates.

The court a quo also found that there was evidence of interference with the

administration of justice attributable to the appellant. First, in respect of the arrest and

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subsequent release of supsect Sidingumuzi’s mother (the learned trial magistrate

erroneously refers to Sidingani). Second, the disappearance of Ntokozo. In the

circumstances, the court a quo, after making reference S v Maratera SC 93-91,

held that it has been shown that there has already been attempts (page 2) to interfere

with evidence. I agree that it is trite that where is has been shown that the accused

had interfered with evidence, a court is justified in denying him bail – see also S v

Chiadzwa 1988(2) ZLR 19; S v Murambiwa SC 62-92; S v Maharaj 1976(3) SA 205

(D). The court should, however, not refuse bail on the bare assertion of the state,

there must be enough reason for such a conclusion – see Sahumani v S HB-91-84 and

S v Hussey (supra). In other words, grounds for refusal of bail should be reasonably

substantiated – see Mbele v Prokureur-General 1966(2) PH, H 272 (T). The court a

quo, did not misdirect itself in this regard.

As I am unable to find any misdirection on the part of the court a quo I cannot

interfere with its determination. The court a quo took into account the cumulative

effect of the above two factors and arrived at a decision that the appellant is not a

suitable candidate for bail at that stage. The said finding is unassailable and the

appeal must, therefore fail.

I accordingly, dismiss the appeal against the magistrate’s decision to deny the

appellant bail.

Mabhikwa, Hikwa & Nyathi appellant’s legal practitioners

Criminal Division of the Attorney-General’s Office respondent’s legal practitioners