Court name
Harare High Court
Case number
9 of 2021

S v Mafume (9 of 2021) [2021] ZWHHC 9 (15 January 2021);

Media neutral citation
[2021] ZWHHC 9
Coram
Chikowero J

HH 09/21

HACC (B) 39/20

REF CASE ACC 299/20

 

JACOB MAFUME

versus

THE STATE

 

 

HIGH COURT OF ZIMBABWE

CHIKOWERO J

HARARE, 29 December 2020 & 15 January 2021

 

Appeal against refusal to grant bail

 

T Bhatasara, for the appellant

R Chikosha with A Bosha, for the respondent

 

 

CHIKOWERO J: This is an appeal made in terms of s 121 (1) of the Criminal Procedure & Evidence Act [Chapter 9:23] (“the CPEA”) as read with r 6 (1) of the High Court of Zimbabwe Bail Rules, 1971, pursuant to the Magistrates Court’s dismissal of the appellant’s application for bail pending trial.

BACKGROUND

            Appellant is appearing at the Regional Court sitting as a Designated Anti-Corruption Court on a charge of defeating or obstructing the course of justice as defined in s 184 (1) (a) of the Criminal Law (Codification & Reform) Act [Chapter 9:23] (“the Code”) alternatively contempt of court as defined in s 182 (1) (a) of the same Act.

            It is necessary that I set out the allegations in detail. These are they.

            Appellant is a Councillor for Mount Pleasant and the Mayor for the City of Harare. He is also a legal practitioner, being the senior partner of his legal firm, Mafume Law Chambers.

            On 25 November 2020 the appellant was arrested for the offense of criminal abuse of duty as a public officer as defined in s 174 of the Code arising from the alleged unprocedural facilitation and allocation of two residential stands, one each to his sister and his workmate.

            Having been denied bail by the Magistrates Court, he was then released on bail by this court on 8 December 2020 on the following conditions:

  1. he was to deposit ZWL$30 000 with the Clerk of Court
  2. he was to reside at House Number 217 Samora Machel Avenue, Belvedere, Harare until the matter was finalised
  3. he was to report at the Police General Headquarters Special Anti-Corruption Unit every Friday between 6 a.m. – 6 p.m.
  4. he was not to interfere with any State witnesses
  5. he was to surrender his passport to the Clerk of Court.

Contrary to condition number (d), on 12 December 2020, the appellant contacted the key witness Edgar Dzehonye through a whatsapp voice call on mobile number

077 2 616 889.

            The appellant requested Dzehonye to meet with him on 13 December 2020 at around 1100 hours at Fife Avenue Shopping Centre.

            Around 1200 hours on 13 December 2020 the appellant again called Dzehonye advising that the venue of the meeting was now Mega 11, Leisure Centre in Logan Park, Hatfield Harare.

            Dzehonye drove to Mega 11 Leisure Centre where he met the appellant. The latter was driving a silver Toyota Belta. On meeting with Dzehonye the appellant indicated that the venue was overcrowded and a decision was made to reconvene at Avondale Shopping Centre at 1700 hours the same day.

The meeting was finally held in Dzehonye’s car, a white Honda Fit. While seated in that vehicle, the appellant initiated discussions on the current arrest of employees at City of Harare including the appellant’s own arrest in the matter where Dzehonye was a state witness. The appellant persuaded Dzehonye to give testimony favourable to the appellant at the impending trial.

The discussion lasted for approximately one and half hours with the appellant further stating that he had communicated with one Addmore Nhekairo, the Director of Housing and Community Services at City of Harare. Nhekairo is also a state witness in the same matter. Appellant told Dzehonye that Nhekairo had apologised for having succumbed to pressure to give an incriminating statement against the appellant. Appellant also stated that Nhekairo had agreed to assist appellant by giving testimony favourable to the appellant, at trial.

The appellant offered to pay US$1500 to Dzehonye in consideration for favourable testimony. The parties agreed to meet the following day at a venue and time to be confirmed by both.

On 14 December 2020 the appellant again called Dzehionye and asked that they meet at Strathaven Shopping Centre around 1300 hours on the same day.

Dzehonye proceeded to Strathaven Shopping Centre where he met with the appellant. The meeting was held in the same Honda Fit belonging to Dzehonye.

The appellant again begged the witness to give perjured testimony at the trial and offered to pay US$1000 with the balance of US$500 being paid later the same day. The appellant was immediately arrested by the police following a tip off whilst he was engrossed in a discussion with Dzehonye.

The respondent is therefore alleging that appellant, a legal practitioner, unlawfully attempted to influence a state witness to commit perjury in a looming trial thus committing the offence of defeating or obstructing the court of justice.

In his warned and cautioned statement the appellant replied to the allegations as follows:

I deny the allegations. I never defeated or obstructed the course of justice in any way. I never contravened or failed to comply with terms of my bail order in HACC (B) 34/2020. I deny that I ever contacted Edgar Dzehonye by phone or any other means. I never talked to the witness or interfered with him.

 

On 14 December 2020 after my remand court, I went to Strathaven Shops, a public place for lunch and also to see Getrude Dumba. I proceeded to park besides her car. Mrs Dumba who was seating in the front seat alone in the car whose vehicle had tinted windows at the back. I know Mrs Getrude Dumba as a sister whom I was introduced to by my brother George Chimhini as a business woman who would need legal services. Whilst exchanging pleasantries, a uniformed police and a number of plain clothes individuals who did not identify themselves pounced on me and arrested me. They then opened the rear door of Mrs Dumba’s vehicle that is when I saw Edgar Dzehonye. The police then searched me and found US$65 on my person. They took me to the station on allegations of interfering with the witness. The charges are fabricated. The witness has his pending criminal cases and is now making bargains with the state to save himself.

 

My answer is not exhaustive, I reserve my right to add, to modify, subtract or explain further in a court of law.”

 

THE BAIL PROCEEDINGS A QUO

            In opposing the bail application, the respondent led evidence from Superintendent Sirihwindi. Thereafter, counsel for both the appellant and the respondent made oral submissions.

            Two reasons had been put forward in resisting appellant’s bid for bail pending trial. The court below rejected the first. It found that the respondent had not even attempted to lead any evidence whatsoever to establish that there was a substantial likelihood of appellant absconding if he were released pending his trial.

            However, the learned Regional Magistrate found that the respondent had established that there was a substantial likelihood of appellant interfering with State witnesses if he were admitted to bail. I can do no better than allow the court below to speak:

In regard to the second ground, it will help if I address the question of standard of proof involved at this stage. This has become necessary because the defence submitted that which submission is captured at p 50 of the long script that any allegation which extends to the essential element of the offense must be proven to the beyond reasonable doubt standard. Section 115C provides for onus and degree of proof in bail proceedings. As to degree whoever has onus must discharge it on a balance of probabilities; which is the lighter of the two standards in criminal law.  In any event, how can proof beyond reasonable doubt be achieved where rules of evidence do not strictly apply and courts can receive hearsay evidence and even that tendered from the bar. My view and approach is that whatever needs to be proven, the court shall look at it against the lighter degree of proof.

 

I agree with the defence totally that this is not a bail revocation enquiry. However, the proceedings are concerned with circumstances involving an alleged breach of a bail condition which the State being domin litus has chosen to prosecute as a substantive offence.

 

The evidence before the court shows that accused was arrested at a spot where there was a car and inside the car was Edgar Dzehonye and one Getrude Dumba. It is in dispute as to whether the accused had entered the car or not. The State’s evidence is to the effect that accused had called the alleged witness to the rendezvous via a certain number given as 077 2 616 889. It is asserted that the number belonged to Getrude Dumba and that therefore accused could not have called that number to speak to Dzehonye. The State is not saying as to ownership of the number, but its use in the circumstances complained of. The State further allege that the thrust of the conversation for which the witness was called was to influence the witness to give favourable evidence in the trial against the accused.

 

The following are not in dispute;

  1. That accused is under prosecution for an offence for which he is already on remand.
  2. That Edgar Dzehonye and Addmore Nhekairo are witnesses for the State.
  3. That Edgar Dzehonye advised the police that he had been called by accused on the number he gives for the purposes of discussing the court case.

 

To me that discussion would not have been in the interest of the State by promoting and advancing the State case against the accused. The details of the discussion given actually shows that the cases demise was being pursued.

 

The defence has argued that the presence of Getrude Dumba whose cell phone is central must be taken to mean that the State allegations are false they be found to be tenuous and accused admitted to bail. On the evidence and circumstances I hold a different view. The evidence cannot off hand be adjudged to be tenuous on that basis. On a balance of probabilities, the finding places favour on the version of the State. Accused is a lawyer, why not simply call an intended client to his office, for a business discussions?

 

My finding in this regard is therefore accused interacted with the witness in the manner alleged is more likely than not. Does this amount to a compelling reason?

The institution of bail is meant to protect the due administration of justice by ensuring that an accused of an offence is allowed his liberty on condition that there is no likelihood of adverse effects on the course of justice…

 

It is agreeable and beyond doubt that all these cases underscore the constitutional importance of bail in the criminal procedure. They however don’t advocate that where compelling reasons are established bail must still be awarded. The constitution does not also say that. The State has shown that no condition is likely to stop accused from interfering with witnesses because one such condition failed in this respect. Interfering with witnesses is one ground upon which a court can refuse bail. Having made a finding that in this case no condition other than imprisonment can protect the interest of justice the court is obliged to refuse bail.

 

Accordingly … bail is refused.”

 

THE GROUNDS OF APPEAL

            They read as follows:

“1.       The court a quo misdirected itself by making a finding that the respondent had established compelling reasons as required by s 50 (1) (d) of the Constitution.

 

  2.       The court erred and misdirected itself in fact and law in finding that I had interfered with Dzehonye by calling him on his mobile number 077 2 616 889. That finding is objectively incorrect as it was proved in cross-examination that mobile number

077 2 616 889 is not owned by Dzehonye but by Dumba as evidence by Annexure JM3 hereto.

 

3.         The court a quo erred in basing its decision on factors that were not substantiated by the respondent in that

 

 3.1      It was established that Dzehonye’s number is 077 2 273 930 and not 077 2 616 889.

 

3.2       It was established Dumba the owner of the mobile number 077 2 616 889 and the person who called me was at the scene when I was arrested

 

3.3       The respondent never attempted to give a link or explanation why Dumba was in the same car with Dzehonye or their relationship.

 

3.4       The allegations are that I was about to give Dzehonye US$1000 when the police arrested me but when I was searched on the scene I had US$65 only on my person.

 

 3.5      There was no call history/records produced to show that I called the witness; there was no picture of me talking to the witness; no video recording of me meeting the witness or any objective evidence that I contacted or interfered with Dzehonye; Dzehonye was not put on the stand and no affidavit from him was tendered as evidence. The court relied on the mere say so of the investigating officer.

 

4          the court a quo misdirected itself and proceeded on a wrong principle by ignoring the facts presented to it (for instance my answer in the warned and cautioned statement) and proceeded as if certain factual positions had been established (that I was likely to interfere with Dzehonye) when that was not the case. It therefore made findings which are at variance with the evidence.

5          The court a quo misdirected itself in failing to consider that at the very best (assuming the allegations were true) the competent offence would be that of attempt only since my case in CRB ACC 286/20 is yet to tried.

 

6          The learned magistrate misdirected himself by failing to take into account the factors in s 117 (3) (C) of the CPEA and other relevant consideration when he exercised his discretion.

 

7.         Further the court a quo misdirected itself in not considering whether any objection to the granting of bail could have been obviated by the imposition of appropriate bail conditions.”

 

THE LAW IN AN APPEAL OF THIS NATURE

           

            Barring a misdirection vitiating the lower court’s decision or an improper exercise of its discretion, this court cannot interfere with the learned magistrate’s exercise of discretion in deciding to refuse bail. This position is settled.

            In Barros and Another v Chimphonda 1999 (1) ZLR 58 (S) GUBBAY CJ, in delivering the judgment of the court, said at 62F-73A:

The attack upon the determination of the learned judge that there were no special circumstances for preferring the second purchaser above the first-one which clearly involved the exercise of a judicial discretion – may only be interfered with on limited grounds…

These grounds are firmly entrenched. It is not enough that the appellate court considers that if it had been in the position been in the position of the primary court, it would have taken a different course. It must appear that some error has been made in exercising the discretion. If the primary court acts upon a wrong principle, if it allows extraneous or irrelevant matters to guide or affect it, if it mistakes the facts, if it does not take into account some relevant consideration, then its determination should be reviewed and the appellate court may exercise its own discretion in substitution, provided always has the materials for so doing. In short, this court is not imbued with the same broad discretion as was enjoyed by the trial court.”

 

THE APPELLANT’S ARGUMENTS

            The grounds of appeal are so detailed that, at the hearing, Mr Bhatasara essentially spoke to those grounds as if they were heads of argument. What emerged as the crux of the submissions were the following. The court below misdirected itself in finding that the respondent had established, on a balance of probabilities, that appellant had interfered with Dzehonye. This stemmed from the court a quo’s error in elevating the allegations of interference to the level of evidence of interference. The finding that appellant had, on a balance of probabilities, interfered with Dzehonye could not be sustained in the face of the detailed explanation tendered in the warned and cautioned statement. If anything, the objective evidence titled the scale in favour of a finding, prima facie, that there had been no interference. This is fortified by the inadequacy of the evidence placed before the court below, by the respondent. The only common cause fact was that appellant was arrested at the scene where Dzehonye was. Everything else was in dispute and therefore subject for resolution at the trial. The charges preferred against the appellant stemmed from the alleged interference. Before the trial court determined, in effect, whether or not the appellant interfered with Dzehonye the court below erred in principle in effectively finding that he had so interfered and thus pronounced him guilty before the trial. Therefore, the court below misdirected itself in disregarding the presumption of innocence entrenched in s 70 (1) (a) of the Constitution of Zimbabwe Amendment (Number 20) Act, 2013.

            I shall refer to the actual material on which the foregoing submissions were grounded in my analysis of this appeal

THE RESPONDENT’S SUBMISSIONS

            Mr Chikosha correctly referred me to the law applicable in an appeal against bail refusal. Indeed, if the magistrate exercised his or her discretion judiciously and there is no misdirection or irregularity the judge on appeal will not interfere with the decision made. See S v Ruturi 2003 (1) ZLR 259 (H). Accordingly, the appellant must attack the decision of the lower court. See S v Malunjwa 2003 (1) ZLR 276 (H).

            In supporting the decision a quo, counsel for the respondent argued that there was neither a misdirection nor an irregularity made in arriving at that decision. What matters is that appellant was arrested at the scene where the State witness, Dzehonye, was present. The magistrate was on firm ground in finding that appellant had phoned Dzehonye, who received the call on Econet number 077 2 616 889, thus the pre-arrangement to meet at Strathaven Shopping Centre. It is immaterial that mobile number 077 2 616 889 was not registered in Edgar Dzehonye’s name. What matters is that appellant called Dzehonye on that line.

            In conclusion, Mr Chikosha submitted that the evidentiary issues raised by the appellant in his grounds of appeal (to which I shall revert shortly) are triable issues. They cannot be a basis for impugning the decision rendered a quo.

THE ANALYSIS

            This appeal raises a rather unusual situation.

            Appellant has a constitutional right to be presumed innocent until proved guilty.

            The main charge is defeating or obstructing the course of justice as defined in s 184 (1) (9) of the Criminal Law (Codification & Reform) Act [Chapter 9:23] (“the Act”) alternatively contempt of court as defined in s 182 (1) (a) of the same Act.

            These charges arise from appellant’s alleged breach of an order of this court. In admitting him to bail in an earlier matter, the court ordered him not to interfere with State witnesses. The respondent alleged that he interfered with a State witness, Dzehonye. On the basis of the alleged interference which was charged as the crime of defeating or obstructing the course of justice, alternatively contempt of court, bail was opposed and refused a quo.

            Having said this, the central issue that arises in this appeal is whether the decision to refuse bail is vitiated by an irregularity or misdirection. This requires that I consider two issues arising from the grounds of appeal.

DID THE COURT A QUO MISDIRECT ITSELF IN FINDING THAT THE RESPONDENT ESTABLISHED, ON A BALANCE OF PROBABILITIES, THAT APPELLANT INTERFERRED WITH EDGAR DZEHONYE?        

            The constitution requires that there be compelling reasons for denial of bail. In this matter, this means there must be evidence establishing, on a balance of probabilities, that appellant interfered with Dzehonye.

            I take the view that this constitutional threshold was not attained. There was no evidence, even on a balance of probabilities, that appellant interfered with Dzehonye. I do not say appellant did or did not commit the offences in casu. All I say is that for purposes of the bail proceedings a quo, no evidence was adduced before that court to establish, on a balance of probabilities, that he interfered with Dzehonye. The court below itself found that there was a dispute on whether the appellant entered the car wherein Dzehonye was seated. That is a matter for the trial court. Appellant stated in his warned and cautioned statement that he neither called Getrude Dumba nor Dzehonye. Instead, he says it is Dumba who called him to meet her at Strathaven Shopping Centre. He was arrested while standing by her car, talking to Dumba. He neither spoke to nor saw Dzehonye until the police opened the back door of Dumba’s vehicle, only for him to behold Dzehonye seated in the car. The court below found that there is a dispute on whether appellant was arrested  whilst seated inside the car. Neither call records nor history were produced a quo to assist the magistrate to formulate an opinion on who, if any, called the other between Dumba and appellant on the one hand and appellant and Dzehonye on the other hand. In my judgment, it was a gross misdirection for the trial court to make two fundamentally contradictory findings. It found that there was a dispute on whether appellant was arrested inside or outside Dumba’s vehicle. That in itself means there was before the court below a dispute on whether appellant interacted or talked to, either at the scene or over the phone, with Dzehonye. Having made such a finding it was a gross misdirection for the learned magistrate, in my view, to contradict himself by proceeding to find that the discussions going on inside the car were designed to destroy the criminal matter in which Dzehonye is a witness. These are issues for the trial court. Neither Dzehonye nor Dumba put in an affidavit before the learned magistrate to enable him to come to an opinion on the content of any discussion, if any, between Dzehonye and appellant at the scene or over the phone.

            I must admit that the learned magistrate, sitting as a bail court, was in an invidious position. Respondent simply called the investigating officer to give hearsay evidence. It appears he too was in a very difficult position. He was restricted to repeating the allegations, thus giving them the form of hearsay evidence. But they remained allegations. The prima facie source of the allegations, Dzehonye, did not testify. In my view this means the allegations were not tested. Indeed, it is only at the trial that they can be tested. I add that the State outline suggests that appellant was arrested when he was about to give Dzehonye a US$1000 bribe, but the investigating officer admitted under cross examination that only US$65 was recovered from appellant upon a search being conducted.

            I reiterate that the court below was placed in an unenviable position. It was being asked to make a decision on bail based on pure allegations. In my view it was being driven somewhat to try the main case on the basis of the allegations and the warned and cautioned statement. It is only a trial court which can either reject or accept the appellant’s defence. It was a gross misdirection for the court below to dismiss the appellant’s defence to the charges. It did so by saying:

“Accused is a lawyer, why not simply call an intended client to his office for a business discussions?”

 

It is only a trial court, after hearing all the evidence, which may or may not reject the appellant’s defence.

In the same vein, the court below had effectively strayed into the domain of the trial court, despite its resort to the language of a bail court, by stating:

“My finding in this regard therefore is accused interacted with the witness in the manner alleged is more likely than not. Does this amount to a compelling reason?”

 

The learned magistrate made a finding on the basis of what he had found not only to be an allegation, but an allegation which was disputed. The constitutional imperative is that for bail to be denied there must be compelling reasons. That cannot mean allegations but evidence.  See S v Hussey 1991 (2) ZLR 187 (S).

 In sum, the court a quo, in my view, grossly misdirected itself in refusing bail in the absence of evidence placed before it showing, on a balance of probabilities, that appellant interfered with Dzehonye. Consequently, the question whether the court a quo misdirected itself in finding that if released on bail appellant was likely to interfere with witnesses is answered in favour of the appellant.

THE PRESUMPTION OF INNOCENCE

            There cannot be a half-way house between innocence and guilty.

            The appellant is presumed to be innocent until proven guilty.

            It appears to me that the unintended consequence that arises from the bail refusal in this matter is this. The presumption of innocence was eroded under the guise of meeting the constitutional threshold for refusing bail. The problem arises from the fact that the conduct constituting the offence charged is also the reason relied upon to oppose and refuse bail.

            The end result is that there was an undesirable conflation, a quo, between the functions of the bail and trial courts.

            I think the respondent may have considered seeking revocation of bail, if so minded, while still separately charging the appellant for defeating or obstructing the course of justice, alternatively contempt of court.

DISPOSITION

            Interference having been the only ground on which bail was refused and that being a misdirection, the appeal succeeds.

            In the result, the following order shall issue:

  1. The appeal against the refusal of bail by the Magistrate Court in CRB ACC 299/20 be and is allowed.
  2. The decision of the Magistrates Court refusing bail is set aside and substituted with the following:
    1. The accused is admitted to bail on these conditions:
  1. he shall deposit ZWL$40 000 with the Clerk of Court at Harare Magistrates Court.
  2. he shall report every Friday at the Police General Headquarters Crime Section Special Anti-Corruption Unit Offices between 6 a.m. and 6 p.m.
  3. he shall reside at number 217 Samora Machel Avenue, Belvedere, Harare until this matter is finalised.
  4. he shall not interfere with police investigations and State witnesses who include Edgar Dzehonye, Detective Sergeant Machinga and Addmore Nhekairo.

 

 

 

Mupanga Bhatasara Attorneys, appellant’s legal practitioners

National Prosecuting Authority, respondent’s legal practitioners