Court name
Supreme Court of Zimbabwe
Case number
SC 41 of 2004
Crim. Appeal 175 of 2004

Attorney-General v Makamba (75/04) (SC 41 of 2004, Crim. Appeal 175 of 2004) [2004] ZWSC 41 (22 June 2004);

Law report citations
Media neutral citation
[2004] ZWSC 41






















Judgment
No. SC 41/04


Crim.
Appeal No. 175/04








THE
ATTORNEY-GENERAL v





JAMES
CHAFUNGAMOYO MAKAMBA








SUPREME
COURT OF ZIMBABWE


HARARE,
JUNE 16 & 23, 2004








V
Shava
, for the
appellant





G
C Chikumbirike
, for
the respondent





Before:
CHEDA  JA, In Chambers, in terms of Rule 5 of the
Supreme Court Rules






The respondent was arrested on
various allegations of contravening the Exchange Control Act
[
Chapter 22:05],
as read with the Exchange Control Regulations, Statutory Instrument
109 of 1996.





The
respondent was detained by the police and later taken for remand at
the magistrate's court. The magistrate's court remanded
him in
custody and refused to grant him bail. Several applications were
made to the High Court for bail but without success.
However, in
his latest appearance he was granted bail on certain conditions by
the High Court (BHUNU  J) on 19 May
2004.





The
appellant, who was not satisfied with the decision of the High Court
to grant the respondent bail, applied for leave to appeal
against the
decision, which leave was granted. The appeal was heard in
Chambers.





The
appellant gave the following as grounds for appeal –





“1. The
learned judge did not give due weight to the State’s fears that the
respondent, as a man of considerable wealth and substance,
has the
capacity to interfere with police investigations.






2. The
learned judge misdirected himself by finding that in the event that
the appellant (the respondent?), if convicted, will only
repatriate
£30 000 in relation to the purchase of the Colne Valley
(property) and thus did not give due weight to the
State’s case
that £210 000 was the purchase price for the property
concerned.





3. The
learned judge did not give due weight to the State’s fears that
though there are changed circumstances the respondent has
only
repatriated £9 047.56 of the £20 000 - £25 000 …
which by his own admission he had in his bank account with
the Bank
of Ireland.





4. The
learned judge misdirected himself in failing to appreciate the
contention by the State that (through) the mere fact the respondent
was able to use his American Express Card account and is a holder of
a Suisse Bank account he is still able to access other funds
outside
the country, which have not yet been uncovered by police
investigations.”






The respondent contested this
appeal by saying that the appellant did not allege any misdirection
or irregularity on grounds 1 and
3 but alleged misdirections on its
appeal grounds 2 and 4. He submitted that the facts to support the
contention that there was
a misdirection are either non-existent or
do not amount to a misdirection or irregularity, but are a mere
expression of an opinion
by the appellant which is different from
that of the judge in the court
a quo.






The appellant submitted that
the trial of the respondent has now been set for 16 June 2004.
He said the case against the
respondent is as strong as ever, more so
if one takes into account that most of the money has not been
repatriated.





In
his response to this, the respondent submitted that there is no money
outside the country to be repatriated and that this was
supported by
the judgment of BHUNU  J, where, after referring to
KAMOCHA  J’s judgment, he says at pp 2-3 of
the
cyclostyled judgment:





“The
long and short of it all is that the applicant was denied bail on the
basis that he was facing serious charges involving millions
of
foreign currency which converts to billions of local currency.






With the passage of time and
further investigations new evidence has since emerged establishing
that the allegations against the
accused are not as serious as
previously thought.






It is now conceded by the State
that, apart from the Number 19 Willowmead Lane, Colne Valley
property, the applicant did not
purchase and does not own any of the
immovable properties as previously alleged.





It
will be remembered that the Colne Valley property was allegedly
purchased for 210 000 British pounds but only 30 000
British pounds was paid. It follows therefore that, if convicted
the applicant will be required to repatriate only 30 000
British
pounds.





This
substantial huge reduction in the amount to be repatriated upon
conviction is coming in circumstances where the applicant has
voluntarily repatriated 9 047 British pounds.





Despite
the substantial change of facts in favour of the applicant the State
still vigorously opposes bail.”






Mr Shava,
for the appellant, submitted that on his own admission the respondent
has £20 000.00 - £25 000.00 in the Bank of Ireland.

This money has not been accounted for. If the £9 047 that the
respondent has since repatriated is part of that money, then
nothing
has been said about the rest.





The
allegations against the respondent included six different foreign
accounts, namely –






Three accounts in the
United Kingdom;


One
account in Switzerland;


One
account in Germany (the Deutsh Bank, AG, Stuttgart); and


One
account in Luxembourg.





In
his judgment, CHITAKUNYE  J referred to these foreign
accounts and indicated that the respondent denied two of those
accounts but admitted the rest.






In my view, when the court
a quo
relied on the smaller figure of £30 000.00 as the only amount
to be repatriated it misdirected itself as it did not take into
account whatever may be in those accounts.





Even
the concession by the State dealt with the properties alleged to have
been purchased by the respondent. The fate of the accounts
remained
unknown.





In
the absence of any information about these bank accounts, and the
amounts each may have, the fear by the State of the respondent
absconding and living outside the country on those funds is very much
worth considering.






In the circumstances, I would
agree that the court
a quo
failed to give sufficient weight to this fear and concern expressed
by the State in its third ground of appeal.





A
further factor to be taken into account is that the respondent’s
trial has been set to commence on 16 June 2004 and to
continue
up to 18 June 2004. As at the time of hearing this appeal, the
trial was to commence the same day.






The main reason for applying
for bail was that the respondent be granted his freedom pending
trial. In my view, it makes no difference
at this stage to consider
granting bail to the respondent when the trial is already in progress
and is for only three days.






Taking into account the State’s
fear, the fact that the respondent has some accounts outside the
country that he can survive on,
and the fact that his trial has
already started and should last only three days, I am not persuaded
that the respondent should be
granted bail.






Accordingly the appeal by the
Attorney-General succeeds to the extent that the decision of the
court
a quo
granting the respondent bail is set aside.


















Chikumbirike & Associates,
respondent's legal practitioners