Judgment No. HB 102/14
Case No. HCB 94/14
IN THE HIGH COURT OF ZIMBABWE
BULAWAYO 30 JUNE 2014 AND 3 JULY 2014
Miss P. Mvundla for the applicant
Mr Ndlovu for the respondent
MAKONESE J: On the 20th May 2014 the complainant in this matter Zvaitwa Mukukutu arrived at Beitbridge town enroute to South Africa where he intended to purchase a motor vehicle. He engaged one Samuel Mukonoweshuro (Applicant’s co-accused) to help him clear the motor vehicle to be purchased as his agent. Samuel Mukonoweshuro then accompanied the complainant around Beitbridge town looking for accommodation for the night. It is the State case that Mukonoweshuro allegedly conspired with the Applicant and one Jonathan Mutungamiri to rob the complainant. It is further alleged that Mukonoweshuro then hired or made arrangements with the complainant to lie in wait at another lodge. As they proceeded to the lodge Applicant and Jonathan Mutungamiri then confronted them, produced a firearm and ordered them to lie down. Applicant and his co-accused then searched the complainant and robbed him of US$1013, R80, a Nokia x 2 cellphone, a passport and other documents. The commotion drew the attention of a security guard who was at the lodge who threw a stone in the direction of the complainant and the robbers. The Applicant is alleged to have fired a shot into the air, forcing the security guard to retreat into the safety of the premises he was guarding. The Applicant and his co-accused fled into the bush and Samuel Mukonoweshuro accompanied the complainant to the police station where a report was made.
Investigations led to the arrest of the Applicant and a search conducted at his house resulted in the recovery of a CZ pistol with a Zimbabwe Republic Police (ZRP) serial number BSAP 344 with a magazine loaded with 15 rounds of ammunition. The ZRP CZ service pistol had been stolen at Zimbabwe Republic Police, Drill Hall on the 10th October 2006. It should be
noted that the pistol was recovered under the driver’s seat of Applicant’s Nissan Pulsar, Registration number ACA 9694.
The Applicant flatly denies the allegations and says that he was falsely implicated by his co-accused. He further denies that he was involved in any robbery. He explained that he was surprised by the recovery of the CZ pistol from underneath his driver’s seat. In other words, the Applicant implies that the pistol must have been planted by the police. The Applicant did not venture to give an explanation regarding the blue woollen mask also recovered from his house.
Applicant contends that he is a suitable candidate for bail because he is presumed innocent until proven guilty. He contended that there is no risk of abscondment because no evidence has been placed before the court to indicate that he has attempted to flee the jurisdiction of the court.
The State has opposed the granting of bail largely relying on the fact that there is a real risk and likelihood that the Applicant will abscond in view of the offence charged and the likely penalty upon conviction. The State contends that the evidence against the Applicant is overwhelming, more particularly given the fact that the ballistics report confirms that the spent cartridge recovered from the scene of the robbery matched the firearm fired at the scene of the crime.
It is my view that given the nature of the offence, and the likely penalty to be imposed should the Applicant be convicted, there is a real possibility that if granted bail pending trial the Applicant may abscond. In the matter of S v Moyo HB 23/05, the court observed and pointed out that where the State case is prima facie strong a conviction is almost guaranteed. With this knowledge, and in the light of the fact that Applicant is an ex-police officer, he is most unlikely to wait for a trial where conclusion will be against him. I am in agreement with counsel for the State that the due administration of justice is likely to be compromised if the Applicant were to be granted bail pending trial. The Applicant is not a suitable candidate for bail.
I must remark that in general these courts are slow to grant bail in cases of robbery, more particularly where firearms are used by the suspects in the commission of the offences. The courts generally impose heavy custodial sentences were convictions are secured and therefore there is a huge temptation for persons facing such charges to abscond and avoid trial.
In the result, the application for bail is hereby dismissed.
Mutuso, Taruvinga & Mhiribidi, applicant’s legal practitioners
Criminal Division, Prosecutor General’s office,respondent’s legal practitioners