S v Dave And Another (141 of 2021) [2021] ZWBHC 141 (28 July 2021)

1 HB 141/21 HCB 195/21 EDWARD DAVE And SHEUNESU NHLIZIYO Versus THE STATE IN THE HIGH COURT OF ZIMBABWE KABASA J BULAWAYO 15 & 28 JULY 2021 Bail Pending Trial Ms. A. Phiri, for the applicants Mr. K. Jaravaza, for the respondent KABASA J: This is an application for bail pending trial. The applicants are facing a charge of robbery. The allegations are that on 8th June 2021 the applicants, in the company of 4 others, hired a motor vehicle to Esigodini from Bulawayo and proceeded to the complainant’s home. One Thabisa Ncube who was part of the gang of 6 was a former employee of the complainant and is the one who led his co-accused to the complainant’s house. The group was armed with axes, knives and what looked like a firearm. The complainant was attacked using an axe and a log resulting in him losing consciousness. His wife was threatened with rape and the kidnapping of the couple’s 9 month old baby. As a result, the complainant surrendered ZAR300, ZWL$5 000 and three cellphones. The gang went on to ransack the house, taking property valued at US$3 749,00. Most of the property was recovered after the hired driver refused to carry the loot. The gang managed to leave the area but the hired motor vehicle had a tyre puncture and that immobilized the vehicle leading to the arrest of the hired driver and some of the gang members. The applicants however managed to find their way back to Bulawayo where they were eventually arrested except for one who is still at large. The state opposed bail on the grounds that: (a) (b) (c) The applicants are a flight risk who gave police trouble as they proved difficult to apprehend. The seriousness of the offence and the likely penalty will therefore induce them to be fugitives from justice. The first applicant has ties in South Africa and may therefore flee to that country thereby removing himself from the court’s jurisdiction. The applicants may interfere with witnesses as the hired driver lives in the same neighbourhood with them. They may therefore manipulate him. The 2nd applicant has no identification documents and may therefore prove difficult to locate should he be granted bail and default court. HB 141/21 HCB 195/21 (d) (e) 1st applicant has 2 pending cases of robbery under Nkulumane CR 119/03/21 and Bulawayo Central CR 203/03/21 and is therefore likely to commit other offences if released on bail. The evidence against the applicants is overwhelming making conviction very likely and with that the likelihood of abscondment becomes high. In Mwonzora and Others v S HH-72-11 the court stated that the initial onus is on the state to establish the necessity of keeping the applicants in custody. This accords with the law as applicants are presumed innocent until proven guilty. Incarceration before conviction therefore cuts across the presumption of innocence. The state put forward its reasons for seeking to have the applicants detained in custody pending their trial. The applicants must meet these concerns in persuading the court to find that it is in the interests of justice to release them on bail. This is so because s115C of the Criminal Procedure and Evidence Act, Chapter 9:07 provides that: “(2) Where an accused person who is in custody in respect of an offence applies to be admitted to bail – (a) before a court has convicted him or her of the offence – (i) (ii) … the accused person shall, if the offence in question is one specified in – A. Part 1 of the Third Schedule, bear the burden of showing, on a balance of probabilities, that it is in the interests of justice for him or her to be released on bail, unless the court determines that, in relation to any specific allegation made by the prosecution, the prosecution shall bear the burden.” In casu, it is alleged the complainant was attacked with an axe and lost consciousness as a result of the injuries he sustained. The robbery therefore falls into the category listed in Part 1 of the Third Schedule. The applicants addressed each and every ground proffered by the state in its opposition to their quest to be admitted to bail. I will look at each of the grounds in turn. 1. The applicants are a flight risk In S v Hudson 1980 (4) SA 145 the court held that where an accused confirms on oath that he has no intention of absconding, due weight has to be given to his statement on oath. However, since an accused who does have such an intention is hardly likely to admit it, implicit reliance cannot be placed on the mere say-so of the accused. The court should examine the circumstances. The applicants submitted that they are innocent and had left Bulawayo for Filabusi where the 2nd applicant had information of a gold rush. The 2nd applicant invited people to go with him and that is how the other 5 accused joined him. One of them hired Khumbuza Nyathi to drive them to Filabusi. Along the way Thabiso Ncube directed HB 141/21 HCB 195/21 the driver to what was to be the complainant’s house where the robbery took place. They had no idea Thabiso had ideas to commit a robbery. From this account, there is therefore no doubt that the two applicants were part of the six men gang that was held to be responsible for the robbery. They were in the motor vehicle which was driven to the complainant’s home. It is equally not in dispute that part of the property taken from the complainant was recovered from the hired motor vehicle. The motor vehicle could not be driven back to Bulawayo due to a tyre puncture. Only the driver was located when a follow-up was made. None of the applicants were at the scene and the two applicants were arrested later, not at their houses but at a friend’s house for the 2nd applicant and at a house in Bellevue for the first applicant. Both applicants submitted that they are family men with strong ties in Zimbabwe and would not want to worsen their plight by absconding. Is the state’s fear that applicants are a flight risk well grounded? In Hussey v State 1991 (2) ZLR 187 (S) the Supreme Court held that it is insufficient for the state to make bald assertions, such assertions must be well-grounded. I asked that the Investigating Officer appear and testify. His testimony was to the effect that the police had problems arresting the applicants. The first applicant was not at his home and it took all of 3 hours to finally get him to open the door. The second applicant was arrested with the assistance of members of the Criminal Investigation Department as he could not be located on the day of first applicant’s arrest. The seriousness of the offence, the heavy penalty which is likely to be imposed and the overwhelming evidence against them will therefore induce them to flee from justice. These facts, looked at in light of the fact that none of them waited with the hired driver after the robbery suggests a desire to evade justice. Granted this bail application does not seek to establish the applicant’s guilt but this court cannot ignore the fact that the applicants are mum as to the reason they decided to leave the area where the robbery occurred and abandoned the “gold rush mission” which was their reason for going to Filabusi that day. The robbery also occurred at night at around 21:00 hours, some of the perpetrators were arrested that same night but the 2 applicants who had no clue that a robbery was on the cards managed to evade the police. There is no doubt the offence is serious and it is public knowledge that robberies are on the increase with almost daily reports of their occurrence. Should the applicants be convicted they are likely to face a long prison term. HB 141/21 HCB 195/21 Given the circumstances of this case, can it therefore be said the state’s assertions are bald and unsubstantiated? I think not. In Jongwe v State 2002 (2) ZLR 209 (S) the Supreme Court set out the factors a court should look at in assessing the risk of abscondment. These are: (i) (ii) (iii) (iv) (v) the nature of the charges; the likely penalty upon conviction; the strength of the state c