Court name
Harare High Court
Case number
300 of 2021
Case name
S v Urombo and Another
Media neutral citation
[2021] ZWHHC 300
Judge
Foroma J

HH 300-21

B 24/21

BNP 3225-6/20

 

STEWARD TATENDA UROMBO

and

BRIAN GOTO

versus

THE STATE

 

HIGH COURT OF ZIMBABWE

FOROMA J

HARARE, 18 June 2021

Bail application – Judgment

C. Chipetura, for the Appellant

Y. Mtalie, for the State

 

            FOROMA J:  Applicants were arrested and charged with (i) contravening s 126 (1) (a) and (b) of the Criminal Law (Codification and Reform) Act [Chapter 9:23] ie. Robbery and (iii) rape as defined in s 65 1 (a) and (b) of the said Code.

            Briefly the facts alleged against them per form 242 ie. Request for remand was that the two accused persons in the company of their accomplices still at large connived and robbed complainant and his wife at the complainants’ residence of an assortment of goods after tying the complainants with shoe laces and cello tape. Among stolen goods were cell phones one of which a Samsung Galaxy S+ which was recovered one from 2nd applicant. Another cell phone stolen in the robbery of complainant in count 2 namely a Nokia 1205 was traced to the 1st applicant who it is alleged disposed of it as soon as he learnt that it would cause him to be linked to the robberies alleged. Applicants are alleged also to have stood guard on the husband (complainant in count one) as one of the accused dragged his wife into a nearby bush where he raped her. Applicants applied for bail pending trial which the State opposed. The State opposed bail and called the investigating officer one detective Sergeant Never Milton Lisita. In summary the police witness testified that police opposed bail being granted to the applicants as they believed that applicants were linked to the robberies. In the case of 1st applicant he acknowledged having disposed of the Nokia 1205 cell phone which is one of the items that one of the complainants was robbed of. As it happens 1st applicant had used the said mobile phone and so the applicant could not dispute having possessed it. He however claimed that he had bought it from the 2nd accused. 2nd accused claimed that the said Nokia cell phone and Galaxy S cell phone had been left in his possession by one Zunde a member of ZNA. None of the applicants mentioned the Zunde to the police which made it suspicious that he was only mentioned at the time of their application for bail. The State can be excused for believing that the reference to Zunde in the explanation of the source of the cell phones was a recent fabrication. 1st applicant did not dispute the assertion that he had disposed of the Nokia 1205 cell phone both in his application nor through the defence counsel when the witness Lisita testified and yet the applicant was already aware of this allegation as contained in the form 242 aforesaid.

One of the reasons the State opposed bail was that second applicant lied to the police that he resided in Hopley in Harare yet in truth he resided in Chitungwiza as police eventually established.

            This ground of opposition to bail was also related in the Form 242 but the applicant did not challenge it. The link of the applicants to the criminal allegations of robbery coupled with the fact that the applicants were difficult to apprehend as well as the attempt to mislead police as to the residence of second applicant significantly tipped the scales. As a matter of fact, the disposal of the Nokia 1205 cell phone strongly suggests an attempt to destroy evidence. But for the night raid on one of them (first applicant) who led to the arrest of the second applicant the applicant could have been difficult to arrest. The link to the offence presents a strong incentive for the applicants to abscond in order to escape a long prison sentence on conviction. Although the applicants claim that the cell phones were left in second applicant’s custody pending payment of the $30 debt there is no indication that second applicant was authorised to find buyers for the phones as no price was indicated in the event he got interested buyers. While both applicants claim that they sold each other the Nokia 1205 cell phone none of them indicates the purchase price in their affidavits in support of the application for bail. For these reasons I did not find the applicants’ explanations as to how the mobile phones stolen from the complainants in the robberies ended up in their possession to be improbable. The fact that first applicant disposed of the evidence i.e. Nokia 1205 puts paid to the apparent innocent explanation that he innocently purchased it. While a bail court is not a trial court with responsibility to determine the veracity of an accused’s defence the court needs to be satisfied that the explanation of the accused to the allegations are probable especially against the recovery of stolen goods in their possession where the allegations are robbery as in casu.

            The respondent is well justified in the view that the disposal of stolen property by first applicant betrays a guilty conscience on his part. If he was an innocent purchaser, he would have not needed to dispose of the Nokia 1205 cell phone for which he paid value.

            Second applicant on the other hand claimed that the cell phones were left with him as some kind of security for the US$30 debt. No explanation was given why 2nd applicant chose to use the phone instead of keeping the phone pending return of the alleged debtor. The state contends that the mention of Zunde was a recent fabrication. If Zunde was the “owner” of the 2 mobile phones and being a person known to second applicant whose residence or workplace was known to second applicant it would have been an easy matter on 2nd applciant’s arrest to indicate that Zunde was the owner of the phones and assist police to arrest/interview him as this would likely result in him being cleared of any links to the robbery.

            When the respondent’s witness testified it was not suggested to him that the person to explain how stolen property ended up in applicant’s possession was Zunde. Besides second applicant did not take precautions considering that he might have been left in possession of stolen property before deciding to use the Galaxy as alleged. The Samsung belonged to the rape victim and did not belong to Zunde. For the forgoing reasons I considered that the applicants were flight risks as the prospect of conviction was strong and the risk of a long prison term in their case was a strong incentive for them to abscond if they were granted bail. The misrepresentation of the residential address to the police tipped the scales as far as second applicant was concerned. For these reasons I dismissed the applicants’ application for bail as I did not consider them to be proper candidates for bail.

A word of caution to legal practitioners practicing their profession in the bail court. Applicants were represented in their initial application. Despite the legal practitioners being aware of the ex tempore ruling and reasons for the dismissal of the applicants’ application for bail no appeal was noted nor were detailed reasons sought from the court to enable their clients to consider whether to appeal or not. Instead the correctness of the extempore judgement was not placed in issue. Instead applicants must have been advised to accept the correctness of the judgment as is apparent from the fact that the applicants only returned to bail court on an application for bail based on changed circumstances about 3 months later which is an indication that no appeal had been contemplated. It was after the application for bail based on changed circumstances was struck off the roll twice for default that applicants’ legal practitioner requested for reasons for the dismissal of the original application for bail. Legal practitioners should appreciate that it is in the interests of their clients that if reasons were not fully captured in court when the ex tempore judgment was delivered that the court is requested to give detailed reasons while the matter is fresh in the court’s  mind regardless of whether or not an appeal will be pursued. After all detailed reasons will only make it easier for the clients to appreciate why their applications were dismissed as invariably if legally represented their applications are argued in the applicants’ absence. Requesting the court for detailed reasons for judgment long after everyone including the accused persons have moved on with their lives is clearly an abuse of the court. Although the court will oblige and   provide the reasons it will be at the expense of other pressing tasks both in court and in chambers. In cases where applicants are represented particularly in bail applications legal practitioners should avoid unnecessary revisiting of matters otherwise considered closed.

 

 

 

 

 

 

 

Maringe and Kwaramba, Applicant’s legal practitioners

The Prosecutor General’s Office, respondent’s legal practitioners