S v Shopa and 13 Others (816 of 2022) [2022] ZWHHC 816 (15 November 2022)

1 HH 816-22 CRB 1175/22 CHAUYA SHOPA and ZEPHANIA CHINEMBIRI and ZECKS MAKONI and ROAN TSOKA and SHEPHERD BULAKASI and TATENDA PINDAHAMA and ENOCK TSOKA and EMMANUEL TSOKA and PRECIOUS JECHE and MISHECK GUZHA and ODIUS MAKOMA and EPHRAGE GWAVAVA and CLEVER SIBANDA and ROBERT MADZOKERE versus THE STATE HIGH COURT OF ZIMBABWE MUTEVEDZI J HARARE, 11 &15 November 2022 Bail Appeal F Nyahunzvi, for the respondent T Mpofu, for the applicants MUTEVEDZI J: This case has taken a circuitous route to be where it is today. The judgment of MUNGWARI J in the case of Chauya Shopa and 13 Others1, which incidentally was extensively in this appeal properly captures the twists and turns which characterized the 1 HH 655/22 2 HH 816-22 CRB 1175/22 appellants’ bid to be admitted to bail. To put this appeal into its proper context, I have no choice but to restate the background once more. On 14 June 2022 a suburb called Nyatsime in Chitungwiza witnessed tempestuous disorder during which there was extensive destruction of property. Some residential properties were allegedly annihilated. In fulfilment of the mandate of protecting and securing the lives and property of the people and maintaining law and order bestowed on it by s219 of the Constitution, the Zimbabwe Republic Police swiftly intervened. Although they were arrested on different occasions, the long and short of it is that all the appellants were subsequently charged with the offence of public violence in contravention of s36(1) (a) of the Criminal Law (Codification and Reform) Act [Chapter 9:23]. They made applications for bail. Some of them made joint applications but others did so individually. All the applications were refused. The first group appealed to this court against the Magistrates’ Court decision to deny them bail. The application was unsuccessful after it was struck off the roll on 1 July 2022 because for recondite reasons, their legal practitioner abandoned them after choosing not to attend court on the date of hearing. The second group equally appealed to this court. Again their counsel chose the inexplicable option of not arguing the matter. In the court’s view, his reasons for not doing so were lame. It was that he wished to join their appeals to those of the appellants in the first group. To achieve that, he requested the court to remove the matter from the roll of that day. The request was granted. The third group’s appeal was set down for hearing on 15 July 2022. Once again, counsel representing them resorted to the same devious stratagem of not pitching up at court. Predictably, the court was left with no option but to strike the appeal off the roll. It was not until about two weeks later that counsel then sought a reinstatement of the appeals which this court granted. The appeals were eventually presented as one for determination on 19 August 2022. Unfortunately, the appellants were unsuccessful in their bid to overturn the court a quo’s decision. Thereafter, the applicants chose another infamous route. When determining that ill-fated application, this court in Chauya Shopa and 13 others (supra) at p. 4 of the cyclostyled decision noted with concern that:- “From the above synopsis, there is no gainsaying that none of the applicants went back to the Magistrates’ Court to seek bail on changed circumstances. Instead, they all chose to approach this court for that purpose. Needless to say, that approach is unprecedented in this jurisdiction. In their application the applicants insisted that the High court has the necessary jurisdiction to determine the matter.” As is now an open secret the appellants’ attempt to circumnavigate the lawful and established bail application procedures was emphatically rejected. They had no choice but to see reason. 3 HH 816-22 CRB 1175/22 They trudged back to the court of origin in which the application on changed circumstances could only be made. They launched yet another bid at gaining their liberation on bail. It failed after the court threw it out on 28 October 2022. Aggrieved by the magistrate’s decision to refuse to accept that their situation had changed to warrant their admission to bail, they approached this court on appeal. Right from the onset, I must commend Mr. Mpofu who appeared for the appellants and Mr. Nyahunzvi who represented the respondent for the professional way in which both of them argued the matter. They confined themselves to purely legal arguments and resisted the unhelpful temptation, which appeared to engulf a lot others, of coming to court and hope to pitch their submissions on political and public opinion undertones. Like MUNGWARI J raised concern with, I also wish to add my voice to the condescending and disconcerting attitude by such legal practitioners. Our courts are courts of law. Public opinion, perceived or real will not sway the courts. Judicial independence demands that judges and magistrates resist pressure to make populist decisions from any quarter. In earlier times, in almost every jurisdiction, the most flagrant threat to judicial independence was known to be political interference. As a result judicial officers are invariably well prepared to deal with that menace. In recent times however, more subtle but equally intrusive threats have emerged. One of them is the public opinion card which unfortunately is given traction by some sections of an opinionated media. The situation is made worse and is fuelled by the unregulated social media where anyone is allowed to say anything without fear of any professional or regulatory reprisals. I am clear in my mind however, that such discourse is normal particularly in a highly literate society like Zimbabwe. Robust debate on social, political, economic and judicial issues is necessary and must be tolerated. Judges are well trained to put a buffer between such public debates and court cases. What becomes wrong is for a legal practitioner to uproot that social rhetoric and seek to submit it as legal argument in court aimed at persuading a judicial officer to grant judgment in his or her favour. If any judicial officer were to fall for that unethical bait, the result is a complete erosion of the independence of the courts. In my view, it is equally unethical for a legal practitioner to bring a matter to court and employ dilatory tactics intended to impede the speedy determination of the matter whilst at the same time complaining loudly about the imaginary partiality of the judicial system. This court sincerely hopes for the sakes of the legal practice and the proper administration of justice in this country that, as officers of the court, legal practitioners who have made these unprofessional and machiavellian tactics the mainstay of every argument they make in court will take heed and correct their ways. As already said in the 4 HH 816-22 CRB 1175/22 instant case, both counsel were very professional in their approach to the issues. I digressed to address these concerns after I noted them from the numerous annexures attached to this appeal relating to the appellants’ previous court appearances. In their appeal, the appellants cited eight grounds on which they alleged that the court a quo had misdirected itself. I could have easily taken issue with the grounds for their repetitiveness and lack of conciseness. I however took no umbrage at them given the position stated by the Supreme Court in the case of Mary Mubaiwa-Chiwenga v The State and others2 that the noting of appeals against decisions regarding bail is not initiated by a notice of appeal but by filing a written statement with the registrar. In that case, the Supreme Court related to R67 of the Supreme Court Rules, 2018 a provision which I read to be in pari materia with R91 of the High Court Rules, 2021. The noting of a bail appeal is therefore not as restricted as the noting of other genres of appeals. The written statement stands in lieu of the notice of appeal. There are no parameters circumscribing that statement. What I found out of place is the decision by the appellants to file grounds of appeal that are separate from the bail statement. That procedure is irregular. The liberal nature of the written bail statement does not mean that appellants are permitted to conflate two different methods of filing appeals. It is not possible to file a notice of appeal in the ordinary sense and a written bail statement separately. As already said, the statement substitutes the notice of appeal. I did not however deem the irregularity fatal. I condoned it and decided to hear the appeal on the merits. The law on bail appeals The law relating to bail appeals is trite and need not detain the court. In brief it is that the determination of bail appeals follows essentially the same considerations as other classes of appeals. The overriding principle is that the appellant must show that there was a misdirection committed by the court a quo. The major difference is that in bail appeals, the appeal court is still required to evaluate whether the appellant is entitled to be released on bail even in circumstances where it finds that the court a quo misdirected itself in some way. See CHAREWA J’s views in Belington Maronga and Others v The State3 The existing legal position is that when determining an appeal against the refusal of bail by the court of first instance this court is required to confine itself to the record of proceedings.4 What the appeal court must look for is whether there was a misdirection by the lower court. In 2 SC 4/21 3 HH393/21 4 See S v Maphosa and 2 Others HMT 1/21 5 HH 816-22 CRB 1175/22 instances where the court a quo properly dealt with the questions arising and duly applied the considerations prescribed when attending to issues of bail pending trial the appeal court is not at liberty to interfere with that decision. Needless to say, if a misdirection was committed, the decision can properly be impeached. The biggest difficult in that assessment is that the grant or refusal to grant bail is a discretionary power that is conferred on the court hearing the application. 5 That an appellate court may have arrived at a different decision is therefore not a good reason for interfering with the decision a quo. The discretion must have been exercised illogically. Application of the law to the facts I have already said the appellants’ grounds of appeal were long and winding. Below I paraphrase them according to how I understood them. It was that:- 1. The court a quo did not understand what is meant by changed circumstances such that it failed to relate the appellants’ story to that reality 2. The court a quo on one hand accepted that there had been a change in circumstances due to effluxion of time but then held that that change was inconsequential on the other 3. The court a quo erred by dismissing the change of circumstances arising from passage of time on the basis of the unsubstantiated allegation of the complexity of the case 4. It also erred in accepting the bald assertion by the state that there were witnesses whose statements were yet to be recorded yet the projected date by when investigations were due to be completed had passed 5. It ignored the change that one of the accused persons jointly charged with the appellants had been granted bail 6. It dismissed the defenses by the appellants as not plausible without giving its reasons for coming to that conclusion 7. It found without cognizable indicators that the appellants were likely to abscond 8. Having found that there were no changed circumstances, the court a quo erred in proceeding to then deal with the application on the merits. I now proceed to deal with each of the grounds. I will address the grounds in an inconsecutive manner. The reason for that unorthodox choice is that some grounds appear more hopeless than others. They are therefore easier to deal with first. 5 S v Malunjwa 2003(1) ZLR 275 (H) 6 HH 816-22 CRB 1175/22 Ground 1 is essentially an allegation that the court did not appreciate the concept of changed circumstances. That view is however not supported by the court a quo’s ruling. At p. 33 of this application also marked as p. 11 of the ruling, the magistrate cited the case of Hopewell Chin’ono v the State 6 and said changed circumstances meant the existence of new facts which were not previously placed before the court that initially dealt with the bail application. It added that the facts must show that the circumstances have changed to such an extent that they warrant the release of the suspect without compromising the reason for the initial refusal of the application. Admittedly, the court could have explained the concept more eloquently. That however does not detract from the fact that it essentially captured what is required in applications of that nature. In the case of S v Chikumba 7 this court described the concept to mean facts or circumstances which arose after the determination of the previous application. Alternatively, such facts could have been discovered after the previous application. It follows therefore that it is improper for an applicant in a subsequent bail application, to place before the court the same set of facts that he used to motivate the failed previous application. Given that understanding and that it reconciles well with the general statement of the concept by the court a quo, it would amount to a knit-picking exercise were it this court to agree with the appellants that the court a quo did not properly understand the concept of changed circumstances. It did. Whether it then misapplied that principle is another issue. The first ground of appeal cannot therefore be sustained. Ground 5- that some of the appellants’ co-accused have been admitted to bail. The appellants alleged that one of their accomplices had been granted bail by this court. In addition, counsel also indicated that at the time of the hearing of this application, a second of the appellants’ accomplices had also been admitted to bail by the Magistrates’ court. In fact he argued that that accomplice, Godfrey Sithole must be viewed as the principal accomplice because he is alleged to have instigated the public violence. An instigator’s moral blameworthiness must be viewed as higher than that of the participants who fell for the incitement. If the principal instigator and convener of the public violence is admitted to bail, it surely must be a big factor in swaying the court to also admit the appellants to bail. I have already said that in bail appeals, the court is confined to what is contained in the record of proceedings. When the court a quo dealt with the application, Godfrey Sithole’s admission to bail was not an issue. He had not yet been admitted to bail. To seek to introduce his admission 6 HH 567/20 7 2015(2) ZLR 7 HH 816-22 CRB 1175/22 to bail at this stage is no different from adducing new evidence on appeal. It is not possible to fault the magistrate’s decision on the strength of an issue that was not before the court. That fact can only be used to mount a further application on changed circumstances if it were to become necessary. There is little doubt that it is a strong factor for such purposes given the provisions of s56(1) of the Constitution of Zimbabwe, 2013 which stipulates that all persons are equal before the law and have the right to equal protection of the law. The import of s56(1) is therefore that accused persons in similarly placed circumstances with an accused who has been granted bail also ought to be admitted to bail unless there are strong reasons why that shouldn’t be the case. I have had cite of the case of Felix Biri v The State8 where MUREMBA J admitted one of the accomplices in this case to bail. That applicant was, from a reading of the papers, the last to be arrested. His circumstances are very different from the appellants’. He was arrested on 29 September 2022, several months after the arrest of all the appellants. The allegations against him were, for want of a better word, tepid. The court a quo’s finding that Felix Biri’s case is distinguishable from that of the appellants cannot therefore be faulted. Ground 8 is barely understandable. The allegation that having found that there were no changed circumstances, the court proceeded to deal with the application on the merits is not supported by the record of proceedings. The conclusion by the court as shown on p.11 of the ruling was that: “The State has managed to show that there are no changed circumstances here to warrant the court to reconsider its earlier decision to deny the accused persons bail. The application is dismissed.” I am not persuaded that the court thus determined anything else other than the application on changed circumstances. The ground is dismissed. Ground 2 relates to the court a quo’s finding on one hand that indeed there had been a change of circumstances resulting from passage of time but that the lapse of time was so inconsequential not to warrant the release of the appellants from custody. I note that the ground traverses numerous other grounds particularly grounds 3, 4, 6 and 7. The first group of the appellants was arrested as far back as June 2022. The police projected, in relation to those appellants that investigations would have been completed by 10 July 2022. The subsequent groups were arrested in July 2022 and the projection was that investigations would have been wound up by early August 2022. A simple calculation shows that the expected dates of completion of police investigations have been overshot by three to four months depending on 8 HH722/22 8 HH 816-22 CRB 1175/22 when the particular appellant was arrested. Police investigations cannot be allowed to go on in perpetuity to the prejudice of an accused person. The requirement for police to state the estimated time which their investigations will take at remand stage is not for cosmetic purposes. It is intended to guide the court in its quest to safeguard the integrity of the investigations on one hand and to ensure that the police are given strict timeframes within which to work and finalise investigations on the other. This becomes particularly important in instances where opposition to an accused’s admission to bail is based on his/her alleged potential to interfere with witnesses/evidence/ investigations. The court affords the police the stated period so that they can secure the necessary evidence and put it beyond the reach of the accused person. They record statements from witnesses so that the accused will not be able to influence the making of those statements by the witnesses. To allege that five months after the arrest, the police are still investigating and trying to record witnesses’ statements is disingenuous and is unacceptable. There is nothing complex about investigating a charge of public violence. It is unlike a fraud involving numerous transactions where a painstaking audit may be required. By its nature public violence is an open brawl where either the accused is involved or not. It simply requires the testimony of a witness who comes to say I saw the accused doing this and that which constitutes his/her participation in the public violence. The magistrate in this case rightly noted that the lapse of time was a consideration which a court dealing with an application on changed circumstances must take into account. Inexplicably however, he then downplayed it and found it as insignificant to warrant the release of the appellants. He fell into error. The misdirection must have been a result of the court’s failure to appreciate the reasons why the appellants were denied bail in the first place. A court determining an application for bail on changed circumstances must consider such facts together with everything else placed before the court in the applicant’s previous application(s). The application on changed circumstances must not be dealt with in isolation. In other words an application on changed circumstances is a continuation of the initially failed application. Once a court understands the application from that perspective, it will not lose sight of the need to analyse the reasons why bail had initially been denied. In this case, the major reasons why the appellants were denied bail were that at the material time the situation in Nyatsime area appeared volatile; that they were a danger to society; that they had potential to interfere with investigations/evidence/witnesses and that the state had a strong case against them. As such they were likely to abscond. As already said that situation has drastically changed. The tension that characterised the aftermath of the death of Moreblessing Ali which ignited the public violence is all but gone. The apprehension that such 9 HH 816-22 CRB 1175/22 violence may recur cannot be supported by anything tangible on the ground. In addition, from the prosecution’s own inadvertent admission, the police are still struggling to put together their case. The argument that the state’s case is so strong that it may induce the appellants’ abscondment cannot therefore be persisted with. Any witnesses whose statements are crucial to the allegations must have been recorded by now. They cannot be interfered with anymore. All these observations are a direct result of the effluxion of time between the arrest of the appellants and now. As can be discerned and as indicated earlier, the attack on the court a quo’s decision by appellants on the basis of ground 2 also goes to the root of grounds 3, 4, 6 and 7. Against that background, it cannot be gainsaid that the learned magistrate whilst properly comprehending the issue of changed circumstances proceeded to completely misapply it. The result was that his finding that the passage of time was an insignificant consideration is outrageous in its defiance of reasoning conducted in conformity with strict principles of validity. The finding cannot stand and must be vacated. Disposition I have already stated that for an appeal of this nature to succeed all that an appellant is required to show is that the magistrate committed an irregularity or a misdirection or exercised his discretion so unreasonably or in an improper manner to such an extent that the decision cannot be upheld.9 In the paragraphs above, I have demonstrated that the court a quo misapplied the principle of changed circumstances to the facts that were before it. That misapplication of the law amounts to a misdirection. Once that conclusion is arrived at, this court is at liberty to interfere with the decision a quo. In the circumstances it is ordered that: 1. The appeal against the refusal of an application for bail on changed circumstances by the Magistrates’ Court sitting at Harare to admit the appellants to bail be and is hereby allowed 2. All the appellants be and are hereby admitted to bail on the following conditions: a) Each appellant shall deposit $50 000-00 (fifty thousand) with the COC at Harare Magistrates’ Court 9 See S v Ruturi HH 23/03. 10 HH 816-22 CRB 1175/22 b) Each appellant shall continue residing at their address as indicated on the draft order c) Each appellant shall report at CID Law and order section three times a week on Mondays, Wednesdays and Fridays between the hours of 6 am and 6pm until this case is finalised d) Each of the appellants is directed not to interfere with witnesses/ investigations/evidence in this case Zimbabwe Human Rights NGO Furum, applicant’s legal practitioners National Prosecuting Authority, respondent’s legal practitioners 10