2
HH 220-24
HCHCR 1855/24
HCHCR 1830/24
TAWANDA MACHINGAUTA
and
TIMOTHY MAREMBO
and
BLESSING RONALD KACHIDZA
versus
THE STATE
HIGH COURT OF ZIMBABWE
MUREMBA J
HARARE, 30 May 2024
Bail Application
S Zvavanoda, for the applicants
A Masamha, for the respondent
MUREMBA J: The three applicants who are facing one count of theft of motor vehicle and one count of robbery as defined in s 113 and s 126 of the Criminal Law (Codification and Reform Act [Chapter 9:23] are applying for bail pending trial.
The allegations against them are as follows. On 22 March 2024 at around 1245 hours, the applicants and their accomplices who are still at large approached a parked White Toyota GD6 Hillux single cab motor vehicle registration numbers AGE 8573 outside VID Belvedere, Harare yard. They damaged the driver’s door locking system and opened the door. They took a brown laptop bag, three plastic bags containing US$38 900 and a CZ pistol with two magazines loaded with 14 rounds which were in a red small bag which the complainant had placed under the driver's seat. On the same day at around 1800 hours, the applicants and their accomplice dropped the brown bag containing some documents and the firearm at house number 468 Cedrella Avenue Lochinvar, Harare where it was eventually recovered.
In respect of the second, it is alleged that on 13 April 2024 at around 0100 hours, the appellants and their accomplice who is still at large confronted the complainant who was on guard duty at Amanat Hardware situated at number 8 Westbrough, Mt Pleasant Harare whilst armed with pistols. They manhandled the complainant and his workmate. They robbed them of their whistles, paper sprays and button sticks. Three of them remained guarding the complainant and his workmate whilst the others went on top of the roof where they removed some roof tiles and gained entry into the Hardware shop. They ransacked the whole shop searching for cash but failed to find any. During the search they triggered the alarm which went on. They took a bolt cutter, 5 x pairs of gloves and finder left tin snip before escaping. On the 17 April 2024, detectives from CID Homicide received information to the effect that it is the applicants who had committed these offences. A follow up of the applicants was made leading to their arrest after a shootout at Engen Service Station, in Glen Norah A, Harare. The applicants were interviewed and they implicated their accomplices who are yet to be arrested.
The defences the applicants proffer to the allegations are alibi defences. Their explanations are that they were nowhere near the scenes of crime. They each mentioned where they were on the dates the offences were committed. They said that this could be a case of mistaken identity since the police did not disclose who had supplied them with information that it was them who committed the offences. There is no witness who identified them as the perpetrators of the said offences and no identification parade was conducted by the police for the robbery charge. The robbery charge is a trumped-up charge so as to cover up for shooting the first applicant on the rib cage without firing any warning shot during the arrest. The first applicant is in a critical condition and is admitted at Sally Mugabe hospital where he is battling for his life. The police did not recover any firearm from the applicants upon arresting them. There was no shoot out at the time of their arrest. It is the police who just shot at them without warning and injured the first applicant. The first applicant stated that he was shot from the front which is an indication that he was facing the police detectives and not fleeing as alleged by the police.
In opposing bail, the State indicated that it was incorporating the affidavit of the investigating officer and that its reasons for denying bail are as follows. Upon their arrest the applicants attempted to flee from the police resulting in a shootout which is an indication that the applicants are a flight risk. The shootout resulted in the first applicant being shot in the process of being arrested. The applicants are facing serious charges which attract a lengthy period of imprisonment in the event of a conviction. This may induce the applicants to abscond. In addition, the police recovered gadgets that can be used in breaking into motor vehicles were recovered from the applicants’ motor vehicle. The three applicants have pending cases at Harare Magistrates Court.
The State counsel went on to lead viva voce evidence from the investigating officer, Detective Constable Kudakwashe Kanyemba who is stationed at CID Homicide, Harare. It was his evidence that he was opposed to bail on the basis of the following. The police faced challenges in arresting the applicants on the day they were arrested. The police had received a tip off or information to the effect that the applicants were the persons who had committed the first count of theft from a motor vehicle in Belvedere. An informant whose name was not disclosed is said to have said that the applicants had been heard bragging about it. On the 7th of April 2024, police officers who were on patrol then came across the applicants’ motor vehicle, a Toyota Fortuner at Engen Service Station in Glen Norah. The three applicants were seated inside the motor vehicle whilst their accomplice only known as Makhule was outside the motor vehicle changing its number plate. Makhule upon seeing the police shouted to his colleagues saying, “Police” as he fled from the motor vehicle. He managed to escape. The three applicants bolted out of the motor vehicle intending to run away as well but it was too late for them. As they were fleeing, the first applicant was shot in the back and the bullet came through the stomach and he was apprehended. The police chased the second and the third applicants and also managed to apprehend them at the service station. The three applicants confessed to the police that indeed they were the ones who had committed the offence of theft from motor vehicle in Belvedere. The applicants went on to mero motu confess that they were the ones who had committed the second offence of robbery that had happened in Mt Pleasant. The investigating officer said that had it not been for the confession the police would not have known that it was the applicants who had committed the robbery that happened in Mt Pleasant.
It was the investigating officer’s evidence that after the police had arrested the three applicants at Engen Service Station in Glen Norah, they took them to station. Upon arrival they found the applicant’s legal practitioner waiting for them. The applicants’ legal practitioner told the police that the applicants were now denying the charges. The investigating officer said that he could no longer remember the name of the said legal practitioner, but he was certainly not the current legal practitioner for the applicants. The investigating officer said that one of the complainants in the robbery charge indicated that he was able to identify the robbers if he saw them but the applicants refused to participate in an identification parade. So, no identification parade was conducted. Their refusal was documented by the detective who was responsible for conducting the identification parade. The applicants’ legal practitioner also advised the police that the applicants were not going for indications. So, no indications were done. The investigating officer said that from the time the applicants’ legal practitioner became involved in the cases, the police were not able to gather any further evidence from the applicants. All they managed to recover were objects that they recovered from the applicants’ Toyota Fortuner which was a rented or hired car. The objects that were recovered are used in breaking into motor vehicles. The objects were a home-made door unlocker, two specified knives, a file and a gate remote control.
Asked for his attitude towards bail the investigating officer said that he was opposed to it because he fears that the applicants might team up with their accomplice Makhule who is still at large and continue to commit further crimes. He said that as police they believe that Makhule ran away with the firearm they were using to commit offences. The investigating officer said that investigations are near completion. What is outstanding are the GPRS results from the network service providers showing the location of the applicants at the times the two offences were committed. The cell phone numbers that the applicants were using are the ones that were provided to the service providers for the investigation to be made. Asked what evidence the police have against the applicants as at the present moment, the investigating officer said that it was just the oral confessions that the applicants made at the time of their arrest before they were taken to the police station and before their legal practitioner became involved in the cases. The investigating officer made an admission that if the GPRS results do not place the applicants at the places of scene of the two offences, the State case will flop. Asked how long it takes for the GPRS results to come out, he said two weeks yet it was almost a month after the applicants were arrested without the results being availed. Under cross examination the investigating admitted that he had not said anything in the Form 242 and in his affidavit about the applicants having made oral confessions to the police and that the police were awaiting GPRS results as his reasons for opposing bail.
The investigating officer said that all the three applicants had pending cases and that they had refused to participate in an identification parade. He also said that there was documentary evidence at their offices that showed that the applicants refused to participate in an identification parade. I allowed a postponement of the matter to enable the investigating officer to bring proof of the applicants’ pending cases and proof that they had refused to participate in an identification parade. When the matter resumed, he brought a document from the police which showed that each applicant once had three pending cases. However, there was an endorsement by the Clerk of Court that further remand was refused in all the cases because witnesses did not come to court. So, the investigating officer made an admission that none of the applicants has live pending matters in the courts. The investigating officer went on to explain that he had also failed to get documentary proof that showed that the applicants refused to participate in an identification parade. He said that the detective who was responsible for conducting the identification parade told him that he could not find the documents in question. The investigating officer therefore adduced no evidence that shows that the applicants refused to participate in an identification parade. It is a mystery that such documents could not be found.
The applicants’ counsel submitted that it is apparent from the investigating officer’s evidence that the State case is weak. There is no causal link between the offences and the applicants. The only evidence the investigating officer spoke about are the oral confessions which the applicants are even disputing. The investigating officer even said that in their warned and cautioned statements the applicants denied committing the offences. So, it can be safely said that there is no evidence of any confessions made by the applicants. This means that the only evidence the State will seek to rely on against the applicants at trial is the GPRS results, yet as we speak these results are not yet out. If they come out negative, there will not be any evidence to place the applicants at the places of scene. In any case the issue of the oral confessions and the GPRS results must have come as an after thought as the investigating officer mentioned them for the very first time during the bail hearing. The applicants’ counsel further submitted that the State did not produce any previous convictions or pending cases for the applicants which shows that there is no proof that the applicants have a propensity to commit crimes. In summation the applicants’ counsel submitted that the applicants had managed to show that it is in the interests of justice that they be granted bail as the State case is very weak against them.
In response the State counsel initially maintained the State’s opposition to bail arguing that the State case is relatively balanced. He submitted that the GPRS results which are not yet available can go either for the State or against it. So, it will be unsafe to release the applicants on bail before the GPRS results are out. He however admitted that if the results come out negative, the State case will be further weakened. Mr Masamha further submitted that it was worrisome that further remand was refused in all the 9 pending cases the applicants had. It was Mr Masamha’s submission that the applicants be denied bail until the GPRS results are out. If the results come out negative the applicants can reapply for bail.
In the context of bail decisions, it is essential to consider the principles of justice, fairness, and the specific circumstances of the case. Accused persons are presumed innocent until proven guilty. Section 70(1)(a) of the Constitution of Zimbabwe, 2013. Denying bail should therefore not be a punitive measure but rather a precautionary one to ensure the safety of the public and the accused’s appearance at trial. See s 117(2) of the Criminal Procedure & Evidence Act [Chapter 9:23]. In casu the State’s case appears weak based on the investigating officer’s testimony. The only evidence currently available is oral confessions, which the applicants dispute. The fact that the applicants denied committing the offences in their warned and cautioned statements further weakens the case against them. The absence of any physical evidence or eyewitness accounts adds to the uncertainty. The State intends to rely on GPRS (Global Positioning System) results at trial. However, as of now, these results are not available. If the GPRS results turn out to be negative (i.e., not placing the applicants at the scenes of the crime), it would significantly weaken the State’s case. Bail decisions involve balancing the interests of justice, and the rights of the accused hence s 50(1)(d) of the Constitution of Zimbabwe provides that any person who is arrested must be released unconditionally or on reasonable conditions pending trial unless there are compelling reasons justifying their continued detention. In light of this I put it to Mr Masamha that the court was concerned about a number of issues: that the investigating officer had not furnished any evidence to the court to show that he was awaiting some GPRS results. He had not mentioned this issue in the Form 242 and in his affidavit. He had not even mentioned that he was opposed to bail on the basis of some outstanding GPRS results. It is something he mentioned for the very first time when he was giving viva voce evidence during the bail hearing. This left the court with the impression that this could have been an afterthought. This is more so when one considers that the investigating officer did not even explain why the results were not yet available yet it only takes two weeks for the results to come out. He did not even tell the court whether he had made any follow ups or not and when he was expecting to get the results. Over and above this, the investigating officer had failed to furnish proof of any live pending cases of the applicants. He was not able to explain why in all the nine matters the applicants had in the Magistrates Court further remand was refused on account of the State witnesses having failed to come to court to testify against the applicants. The investigating officer had also failed to furnish proof to show that the applicants had refused to participate in the identification parade. Why would such documents be missing from the docket? The failure by the police to avail such documents in a way gives credence to the applicants’ version that no identification parade was conducted because no witness was able to identify them. In light of the concerns of the court Mr Masamha submitted that the honourable thing to do under the circumstances would be to consent that the applicants be granted bail. In view of the circumstances of the present case I am in agreement that the applicants be granted bail pending trial. Denying bail should be a last resort when there is a genuine risk of flight. In casu the applicants face very serious charges especially the charge of robbery. The offences attract lengthy custodial sentences of several years. However, that is all there is against them. In the absence of strong evidence, it is not in the interests of justice to deny an accused bail solely because he or she faces a serious offence which attracts a severe penalty. This is because when the State (prosecution) has a weak case against the accused, it means they lack strong evidence or legal arguments to prove guilt beyond a reasonable doubt. This could be due to various reasons such as insufficient evidence or unreliable witnesses. When the State’s case is weak, the accused may feel less pressure to escape because they perceive a higher chance of acquittal. The accused weighs the risks of staying and facing trial versus fleeing. If the State’s case is strong, the accused might be more likely to flee, fearing a harsh punishment.
I am alive to the allegation by the State that the applicants attempted to flee at the time of their arrest. In the Form 242 and in the investigating officer’s affidavit it is stated that the applicants engaged in a shootout with the police. It however turned out that there was never a shootout between the applicants and the police. The investigating officer clarified this when he gave his evidence during the bail hearing. He said that it is the police officers who shot at the applicants as they were running away from them. He even confirmed that the applicants were not armed. The applicants dispute that they were fleeing and maintain that the first applicant was shot from the front and not from the back as the investigating officer was saying. With the investigating officer having said there was a shootout when in actual there was nothing of that sort, I am inclined to give the applicants the benefit of the doubt. The evidence against them is not strong and as such they are less likely to be induced to abscond. Moreover, the first applicant is admitted at Sally Mugabe hospital where he is said to be battling for his life. He is still to recover from the gunshot injury that he sustained at the time of his arrest. It was not disputed that the applicants have strong ties to this jurisdiction and that they have no passports. They are all adult family men. There are no compelling reasons to deny them bail.
In the result it is ordered that:
Each applicant shall deposit the sum of USD150.00 with the clerk of court at Harare Magistrates Court.
The first applicant shall reside in Mushayapekuvaka village, Chief Chinamhora, Domboshava until the matter is finalised.
The second applicant shall reside at Stand no. 1385 Copper Crescent, Aspindale Harare until the matter is finalised.
The third applicant shall reside at Stand no. 1901 Platinum Crescent, Aspindale Harare until the matter is finalised,
The applicants shall report once a week on Fridays between 0600 hours and 1800hours at CID Homicide, Harare.
The applicants shall not interfere with State witnesses.
Zvavanoda Law Firm, the applicants’ legal practitioners
National Prosecuting Authority, the respondent’s legal practitioners