3
HCC 39/24
REFS: HCCR 402/24
KACC 17-18/24
HCCR404/24
JOSEPH NYAGWETA
And
CHISTOPHER GARANDE
Versus
THE STATE
HIGH COURT OF ZIMBABWE
MUZOFA J
CHINHOYI,22 April 2024
Appeal against refusal of bail pending trial
U. Saizi, for 1st appellant
S. Muyemeki, for the 2nd appellant
R. Nikisi & D. T. Dhamusi for the respondent
MUZOFA J: I allowed the this appeal against refusal of bail pending trial in the Magistrates Court made in terms of section 121 of the Criminal Procedure and Evidence Act [Chapter9:07] on the 19th of April 2024. These are the reasons for my decision. The two appellants appeared before a Magistrate sitting at Karoi Magistrates Court on initial remand and bail was denied. They appealed on separate records. For convenience one judgment has been written.
The 1st appellant is an Agronomist in the Hurungwe District of Mashonaland West. The 2nd appellant is farmer in Karoi. They were jointly charged with fraud in contravention of s136 of the Criminal Law [codification and Reform] Act (Chapter 9:23).
The offence relates to fraud in respect of agricultural inputs supplied by the Government. The allegations are that, in December 2023 the Ministry of Lands, Agriculture, Fisheries, Water and Rural Development rolled out a programme to contract eligible farmers through the Agricultural and Rural Development Authority (ARDA).The process involved identification of eligible farmers, who would receive agricultural inputs for the 2023/2024 agricultural farming season. The programme aimed to boost food security.
The 2nd appellant applied to be considered for the programme. It is alleged that in his application he misrepresented that he had capacity to farm 100 hectares of maize in Nebo Farm, ward 21. The 2nd appellant recommended the 1st appellant as eligible for the inputs. As a result, the complainant, which is the State entered into a contract with 1st appellant. When the 1st appellant applied for the inputs he knew that he did not have the said land for farming. He only had 30 hectares. The State dispatched compound D fertilizer for 85 hectares.
In January 2024, the two acting in common misrepresented to ARDA that the 2nd appellant had planted 85 hectares of maize. As a result of the misrepresentation, ARDA authorised the disbursement of 680 bags of top-dressing fertilizer which was received by the 2nd appellant in February 2024. ARDA suffered prejudice to the amount of compound D fertilizers and ammonium nitrate equivalent to 55 hectares and chemicals. At the time of placement on remand, the actual figure had not been ascertained.
The appellants denied the allegations. The 2nd appellant averred that he did not misrepresent any facts. He conducts his farming activities at Nebo Farm which has a dam and has capacity to irrigate 100 hectares. He only used part of the farming inputs the rest he kept for future use. These were recovered by the investigating officer. There was no prejudice to the State.
When the appellants appeared before the court a quo on initial remand, their legal practitioners applied for bail pending trial. The State opposed the application, it filed a detailed response and the investigating officer gave evidence.
After hearing submissions, the court a quo dismissed the application. In a brief, two-page judgment, the Magistrate summarised the facts, referred to the sections in the Constitution1 and the Criminal Procedure and Evidence Act2 that relate to bail. Without further ado on the applicability of the sections to the facts before it the court then highlighted that the investigations were still underway the police needed to record statements. The appellants were likely to interfere with witnesses. The Court decided not to deal with the strength of the State case leaving it for the trial court.
Dissatisfied by the decision of the Court a quo the appellants appealed under separate covers. The grounds of appeal though prepared by separate legal practitioners raise the same issues. The grounds of appeal for both appellants were inelegantly set out but raise the following issues for determination,
Whether the court a quo misdirected itself in denying bail on the basis that the appellants are likely to interfere with evidence.
Whether the Court a quo misdirected itself by failing to appreciate that with appropriate conditions imposed the State’s fears on interference by the appellants can be curtailed.
The written and oral submissions placed before this Court to motivate the appeals are that the Court a quo misdirected itself in finding that the appellant was likely to interfere with witnesses. No evidence was placed before the Court a quo that the appellants attempted or even interfered with witnesses.
Since the appeals were filed separately different officers of the State filed responses. Despite that, the State opposed the appeal. It was submitted that, this Court sitting as an appeal Court can only interfere with the lower Court’s decision where it appears from the record of proceedings that the Court aquo exercised its discretion injudiciously. This arises where the Court may have acted on a wrong principle, allowed extraneous or irrelevant considerations to affect its decision or made mistakes of fact or failed to take into consideration relevant matters in the determination of the question before it. This Court was referred to the cases of See Barros & Anor v Chimponda 1991 (1) ZLR 58 (S); Aitken & Anor v Attorney General 1992 (1) ZLR 249 (S) on that correct point of law.
Notwithstanding the pointed shortfalls in the judgment of the Court a quo, the State submitted that there was no misdirection. The 1st appellant’s workmates would be witnesses in this case. Since there is a work relationship he is likely to interfere with them. Also that this Court as an appeal Court is at large to consider the facts and come to a judicious decision despite the scanty judgment of the Court a quo.
Before addressing the merits of the case, I comment on the ruling by the court a quo. The ruling is just but the bare bones. There was a passing reference to s117 (2) of the Criminal Procedure and Evidence Act, the Court a quo failed to apply the law to the facts before it. No analysis was made of both the State case and the appellants’ cases to come to a judicious decision.
The court was swayed by a bare averment on the investigating officer’s affidavit. The investigating officer did not give oral evidence, an affidavit was filed which is also proper. The first misdirection was the approach by the Court in coming to its decision. I must mention the elementary requirements of judgment writing. In this case the Court must have considered the appellants’ case, the State case, the applicable law and apply it to the facts. The substance of the judgment must show that the Court applied itself to both parties’ cases and why it was not persuaded by the appellants’ submissions. In this case the Court a quo simply related to the State’s submissions and did not even assess the appellants’ cases.
That as it maybe, this Court is at large to consider the facts as a whole and assess whether for the reasons given by the Court a quo it misdirected itself.
The court a quo denied the appellant bail based on s117 (2) (a) (iii) that they “will attempt to influence or intimidate witnesses or to conceal or destroy evidence.”
To assist a Court to come to a judicious decision, the legislature provided some guidelines on what should be considered. These should be the guiding principles for both the investigating officers as to what to look out for in their investigations and evidence to place before the Court. Most crucially for the Court in coming to its decision. These factors are,
(i) whether the accused is familiar with any witness or the evidence;
(ii) whether any witness has made a statement;
(iii) whether the investigation is completed;
(iv) the accused’s relationship with any witness and the extent to which the witness may be influenced by the accused;
(v) the efficacy of the amount or nature of the bail and enforceability of any bail conditions;
(vi) the ease with which any evidence can be concealed or destroyed;
(vii) any other factor which in the opinion of the court should be taken into account;
It was said for the State that the appellants were linked to the witnesses and they were likely to interfere with them since some were the 2nd appellant’s subordinates.
The Court a quo overlooked pertinent facts on the investigating officer’s the affidavit. The investigating officer literally blew hot and cold which must have cast some doubt on the veracity of his evidence. In paragraph 6 of the affidavit it was stated.
“The State had so far gathered overwhelming evidence against the accused [ARDA Joint Venture Contract, GMB Dispatch Vouchers and witnesses’ statements] which might result in the conviction of the accused if the matter is properly prosecuted and as such it might induce the accused the abscond.”
This was said to motivate that the State had a strong case against the appellants and therefore were likely to abscond. In a complete round about turn, in paragraph (ii) it was stated,
“The investigations are still underway and we are yet to record statements from witnesses and if the accused is released on bail he might interfere with evidence and witnesses thereby compromising the outcome of the entire investigation. Accused 1 is linked to the Agritex office so he can interfere with witnesses and temper with evidence. Accused 2 is the Agronomist for Agritex office Hurungwe District with subordinates under him so he can interfere with his subordinates whom we are yet to record statements.”
The two paragraphs refer to investigations and evidence. The State case in one breath was said to be strong in view of the evidence. This certainly means statements had already been recorded. Surprisingly in the next paragraph, to justify interference, the investigating officer said statements were still to be recorded.
The court was not told which statements were outstanding if any. The Court was not told which records were still to be recovered if any particularly in view of what the officer said that they had recovered the documentary evidence. The Court was not told the ease with which the appellants can access evidence albeit already recovered and interfere with. It did not consider whether any bail conditions may safeguard the interests of justice.
If the statements were recorded the risk of interference would have ceased. It might be correct that recording a statement is one thing but also there is a risk that a witness maybe persuaded to change his or her evidence in Court in the event the accused is granted bail. The problem with the reasoning is that it is all based on assumptions. That would certainly be a bare averment. In S v Hussey 1991 (2) ZLR 187 (SC) the Court discouraged the approach to rely on a bare averment in coming to a decision. All averments must be substantiated. In S v Bennett 1976 (3) SA 652 at 655G-H it was held that interference with witnesses must be real interference not possible interference. It is a likelihood that is assessed holistically from the case as a whole. In this case there was no evidence of interference but a likelihood which seem very remote.
The bail system involves limiting an accused’s right to liberty. It is now trite that the right to be released on bail is provided in the Constitution. Indeed it is not an absolute right, but it can only be limited where there are compelling reasons. Courts therefore must seriously consider all the factors to come up with a judicious decision.
As correctly pointed for the respondent, the issue of interference must be considered prospectively derived from the appellant’s past conduct too. In Nguwaya v The State HH199/17 the Court upheld the Magistrate’s decision to deny bail on the basis that the appellant was likely to interfere with witness based on the appellant’s past conduct that he had threated the complainant during investigations. In this case the investigating officer conceded that the appellants had not interfered with witnesses. So it was not established that they had a propensity to interfere with evidence.
Secondly, the court a quo having taken the view that there were statements to be recorded, it must have considered if imposition of appropriate conditions would not safe guard the interest of justice particularly in view of the inherent contradictions in the evidence before it.
I agree with the submissions made for the appellant. The court did not consider that safe guard measures could be imposed to alleviate the fears by the investigating officer. This I say bearing in mind that all the relevant documents have already been confiscated. Proper conditions could be attached.
From the evidence placed before the Court a quo, it was not in dispute that the appellants have fixed places of abode. It was also not in dispute that the 2nd appellant had invested in a farming enterprise that would tie him to the jurisdiction of the Court. Although the investigating officer had opposed bail on the basis that they are likely to abscond due to the seriousness of the offence the Court decided not to delve on that issue. In my view the offence that the appellants face was said to be serious because of its potential to affect food security in the Country. However the fact that the financial prejudice had not been assessed left the likely sentence to be imposed a figment of imagination especially in view of the fact that the balance of the inputs were recovered.
The appellants are proper candidates for bail subject to relevant conditions to safeguard the interests of justice.
Accordingly, the following order is made:
The appeal be and is hereby allowed.
The decision of the court a quo is set aside and substituted as follows:
The applicants be and are hereby admitted to bail pending trial under CRB KACC 17-18/24 subject to the following conditions:
Each applicant shall deposit US$300.00 with the Clerk of Court at Karoi Magistrates Court.
The 1st applicant shall reside at number 23 Harris Street, Karoi until the matter is finalised.
The 2nd applicant shall reside at house number 6264 Valley Crescent Karoi until the matter is finalised.
The applicants shall not interfere with witnesses and evidence until the finalisation of the matter.
The 1st applicant shall not visit his workplace at AGRITEX Karoi until the matter is finalised.
The applicants shall report every Friday at ZRP Karoi Rural between the hours of 6am and 6pm until the matter is finalised.
Saizi Law Chambers, 1st appellant’s legal practitioners
Mapaya & Partners, 2nd appellant’s legal practitioners
National Prosecuting Authority, the Respondent’s legal practitioners
1 Section 50 (1) (d) of the Constitution
2 S 117 (2) of the Criminal Procedure and Evidence Act (Chapter 9:07)