S v Chakanyuka & Anor (B 382 of 2017; HH 235 of 2017; Ref CRB 382 of 2017) [2017] ZWHHC 235 (7 April 2017)

1 HH 235-17 B 382/17 Ref Case CRB 382/17 SAMUEL CHAKANYUKA and PRISCILLA CHAKANYUKA versus THE STATE HIGH COURT OF ZIMBABWE TSANGA J HARARE, 5 & 7 April 2017 Appeal against refusal of bail pending appeal A Mugiya, for the applicants E Mavuto, for the respondent TSANGA J: The applicants who face charges of fraud were denied bail by the magistrate’s court. In order to reverse the findings of the lower court it is trite that the misdirection complained of must appear from the record of proceedings in the exercise by the court of its discretion. See Barrows & Another v Chimponda 1991 (1) ZLR 58 (S) and Aitken & Anor v Attorney General 1992 (1) ZLR 249(S). What was factually presented to the magistrate at the bail hearing by the Investigation Officer (I. O) was that both the applicants who are husband and wife had not presented any identification cards on arrest. Both said they had lost them. The first applicant had however provided a number which he said he knew from his head. No particulars had been entered for his wife. Counsel for applicants had revealed in cross examining the I. O that second applicant had in fact provided a number in another case. There was no proof of this or of verification of that on the record. Both of them were said by the I. O to have used different names interchangeably. Whilst their counsel interrogated the I. O on the possibility of people having two names, this did not go to the root of satisfying the court that their identities were fully proven at that point. It is clear from the record that the Investigation Officer asked for more time to verify who exactly the two accused were in the absence of identity cards. HH 235-17 B 382/17 Ref Case CRB 382/17 In addition, were several complaints of fraud in which applicants were said to have used the same modus operandi in which they obtained goods from complainants which they were supposed to sell. It was conceded by the I. O that only one case, 705/16, involving the first applicant was officially before the courts. It was said that he had been granted bail in that case. The second applicant was said to have several matters which had been reported although they were not yet before the courts. The applicants also argued that the matters that they faced are civil matters arising from civil contracts. In denying bail, the magistrate’s reasons were therefore that no identity cards had been produced and that the names of applicants were still being verified. The existence of a CRB 705/16 against the first applicant was also said to show propensity to commit similar offences. As regards the second applicant, the existence of other complaints with CR numbers was also taken into account in arriving at the conclusion that it was not just a bold assertion to say that they have a propensity to commit crimes. The applicants have appealed against the magistrate’s ruling on the grounds that the reasons for denying bail were not sufficient and that there was no reliance on relevant authorities. It was argued that the denial of bail was arbitrarily arrived at. It was also argued that there was a failure to recognise that bail is now a constitutional right. S v Munsaka HB 57/17. Additionally, it was also argued that their said propensity to commit crimes was not backed by material evidence and that they could not be charged criminally for failing to perform a contractual obligation. Whilst agreeing that generally an appellate court will not interfere with the exercise of discretion by the lower court unless there is some misdirection, the state was not opposed to the application. The state observed that the magistrate’s misdirection was in the finding that they were not suitable candidates for bail because there was overwhelming evidence against them and that they had a propensity to commit similar offences. In conceding to bail, the state argued that what the applicants were facing were mere allegations. The state also drew on the case of S v Hussey 1991 (2) ZLR 187 (SC) to argue that there was a misdirection since the seriousness of an offence on its own does not justify the refusal of bail. It was also argued that no compelling reasons were given to deny their constitutional right to liberty particular as they had not run away from the criminal justice system. A key factor to be considered in whether or not to grant bail is whether the accused will not stand his or her trial or appear to receive sentence. In considering whether this has HH 235-17 B 382/17 Ref Case CRB 382/17 been established the court is enjoined to consider among others the strength of the case for the prosecution and the corresponding incentive of the accused to flee. The nature and gravity of the offence or the nature and gravity of the likely penalty are also taken into account. In the absence of any positive identification having been produced, I am at great pains to see how the magistrate can be said to have misdirected herself in not granting bail. The record is clear that the I. O asked for more time to verify who the accused really are. The magistrate’s reasons are clear that the absence of confirmed identities was crucial in the decision to refuse to grant bail. Whilst the record shows that applicant’s counsel pivoted his argument on the fact that it was not unusual for a person to have two names which they could use interchangeably, this was not the point. The central point in refusing bail hinged on the lack of concrete proof of who the applicants were. The charge that they are facing does carry the potential of a custodial sentence. One would have thought that in the face of the undisputed fact that both husband and wife had not produced any identity cards, that their counsel would have been prudent enough to have asked the court to hold off making a decision on bail whilst the investigation officer confirmed their identity. The magistrate also relied on the fact that the allegations they were facing involved multiple counts and that there was a propensity to commit similar crimes based on the charges they were facing. There was nothing improper in this as the fact that complaints have been filed is clearly of relevance to the issue of a bail application since complaints to tend to show a disposition towards certain conduct. In a bail application, it is not just cases where there has been conviction that are of relevance or those where a trial is still pending. Complaints lodged themselves are an indicator of disposition towards particular conduct for purposes of determining a bail application. In my view in the absence of identity particulars and given the multiplicity of complaints that formed the allegations that the two were facing, the learned magistrate cannot be said to have committed any gross irregularity or misdirection that can be said to have been so unreasonable or improper as to vitiate his finding which would warrant interference by this court. I do not think that the state’s concession was properly made. As stated in S v Ruturi HH 23-03. “An appeal to the High Court against the decision of magistrate is an appeal in the narrow sense and the decision will be interfered with only if the magistrate committed an irregularity or misdirection unreasonably or improperly as to vitiate his decision.” HH 235-17 B 382/17 Ref Case CRB 382/17 I see no such irregularity here. Accordingly, the application is dismissed. Mugiya and Macharaga Law Chambers, applicants’ legal practitioners National Prosecuting Authority, respondent’s legal practitioners