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HB88-10 - BEKEZELA LIZILE MOYO vs THE STATE

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Bail-viz aggravated armed robbery.

Aggravated Armed Robbery-viz section 126 of the Criminal Law (Codification and Reform) Act [Chapter 9:23].
Procedural Law-viz rules of evidence re fingerprints.
Procedural Law-viz rules of evidence re evidence of identification iro finger prints.
Procedural Law-viz rules of evidence re evidence of identification iro positive physical identification.
Procedural Law-viz rules of evidence re indications.
Procedural Law-viz rules of evidence re digital evidence iro tracing of mobile numbers.
Procedural Law-viz rules of evidence re physical evidence.
Bail-viz progress of police investigations.
Bail-viz set down of matter for trial.
Procedural Law-viz rules of evidence re expert evidence iro medical report.
Bail-viz the administration of justice re section 117 of the Criminal Procedure and Evidence Act [Chapter 9:07].
Bail-viz protection of liberty.
Bail-viz flight risk re strength of the State case.
Bail-viz risk of abscondment re gravity of the sentence.
Bail-viz likelihood to abscond re charachter of the charges.
Bail-viz evasion from justice.
Bail-viz risk of abscondment re potential of lengthy incarceration.

Bail re: Robbery, Armed Robbery, Robbery Committed in Aggravating Circumstances and the Doctrine of Recent Possession

The applicant and three others, namely Bongani Sicelo Mbambo, Everton Khupe and Mandlenkosi Gumisayi are facing a charge of aggravated armed robbery in violation of Section 126 of the Criminal Law (Codification and Reform) Act [Chapter 9:23]. He was arrested at a house in Avondale Mews, Harare on the 15th May 2010.

Historically, the circumstances are that on the 27th March 2010 at 10:11 hours, the complainant received a call on his mobile phone from mobile phone number 0912 861 368. The caller enquired as to when the complainant was coming to the office as that caller was waiting for the complainant in the office. The caller was advised that the complainant would be coming in due course. When the complainant arrived at the office the caller in question was not there but at 11:40 hours the offices were raided by robbers who specifically demanded to be shown two (2) safes of the company from where they took away cash and other valuables. This suggested that they were aware of the existence of those safes….,.

Counsel for the State has submitted that investigations have been completed and the docket submitted to the relevant Attorney General's office for set down although there has been delays in doing so…,.

In the present case, the evidence against the applicant is very strong. He was arrested in Harare almost two months after the commission of the offence and he appears to have relocated to evade justice. His two other accomplices must have relocated to South Africa after the offence where they have residences there and it was probably fortuitous that they were cornered at a lodge in Harare.

The offence of armed robbery is very serious, and, if convicted, the applicant is likely to be incarcerated for a very long time. Therein lies the risk of absondment. In any event, investigations are complete and the applicant should be agitating for his trial date to enable him to prove his innocence.

For these reasons the application for bail is dismissed.

Warned and Cautioned Statements, Indications, Evidence Aliunde & Presumption of Clarity of Events Nearer Date of Event

Prior to the applicant's arrest, investigators had arrested his colleague, who is now jointly charged with him, Bongani Sicelo Mbambo at a house in Malbereign, Harare. It is Bongani Sicelo Mbambo who led the police to where the accused was. After the applicant and Bongani Sicelo Mbambo were arrested, they were interrogated by the police and they directed them to Sloane Lodge in Harare where the other two co-accused namely Everton Khupe and Mandlenkosi Gumisayi had been booked after their arrival from South Africa where they were based.

Counsel for the applicant has strongly argued that the confession and/or indications made by the applicant were obtained through torture.

Counsel for the applicant has strongly argued that the confession and/or indications made by the applicant were obtained through torture. He relied on a medical report, dated 21 May 2010, submitted to his firm by Dr. A. M. Dube, the Regional Prison Medical Officer who examined the applicant on the 20th May 2010. The doctor observed some injuries on the applicant and that he was having difficulties in walking and he concluded that it was “a case of severe soft tissue injury due to assault.”

Prima facie, therefore, the applicant may have been assaulted.

However this court is not presently sitting to determine the admissibility or otherwise of the evidence that may be led by the State. The present inquiry is limited to the fundamental principle of upholding the interests of justice.

Evidence of Identification, Identification Parade, Tool Mark Evidence, Alias, Evidence Aliunde & the Defence of Alibi

Further instigations by the police established that finger prints uplifted from the scene of the crime at Welt Hunger Hilfe No. 6 Wallasey Street, Donnington, Bulawayo, matched those of one of the accused persons, Everton Khupe, who had been arrested at Sloane Lodge Harare after being fingered by the applicant and Bongani Sicelo Mbambo. In addition, Everton Khupe and Mandlenkosi Gumisayi were positively identified by the complainants in a formal identification parade conducted by the police.

These two, Everton Khupe and Mandlenkosi Gumisayi could not have been known as the police had no leads on them had it not been for the confessions of the applicant and Bongani Sicelo Mbambo.

Documentary Evidence and the Authenticity of Questioned Documents re: Digital Evidence

The call that was made to the complainant was later traced to the applicant's mobile phone number 0912 861 368 resulting in the applicant being a prime suspect.

When the applicant was finally traced and arrested in Harare, where he had relocated to, presumably after the offence had been committed, he was still in contact with Bongani Sicelo Mbambo, another Bulawayo based individual who had also relocated to Harare. With the combined assistance of the applicant and Bongani Sicelo Mbambo the police were able to arrest Everton Khupe and Mandlenkosi Gumisay - the two who are believed to have carried out the robbery.

Physical Evidence re: Approach


Indications made by the applicant and Bongani Sicelo Mbambo led to the recovery of some of the items stolen from the scene of the crime, that is, a cordless handset recovered at a bush in Selbourne Park along Cecil Avenue, Bulawayo. Bongani Sicelo Mbambo led the police to the recovery of a Mazda 323 vehicle which had been used as a get-away vehicle.

Bail re: Approach iro Approach to Bail Hearings and Rules of Evidence in Bail Proceedings

Taking into account the factors contained in Section 117 of the Criminal Procedure and Evidence Act [Chapter 9:07], the court must endeavour to strike a balance between the protection of the liberty of the individual and the administration of justice.

The administration of justice may be prejudiced if the accused person does not stand trial, commits other offences while on bail, or interferes with witnesses. The usual barometer to determine the probability of abscondment is where, owing to the strength of the evidence standing against him, the accused person is likely to abscond. S v Malunjwa HB34-03.

In assessing the risk of abscondment, the court is guided by the character of the charges and the gravity of the sentence the accused may face if convicted. See S v Jongwe 2002 (2) ZLR 209 (S).

MATHONSI J:  The Applicant and three others, namely Bongani Sicelo Mbambo, Everton Khupe and Mandlenkosi Gumisayi are facing a charge of aggravated armed robbery in violation of Section 126 of the Criminal Law (Codification and Reform) Act [Chapter 9:23].  He was arrested at a house in Avondale Mews Harare on the 15th May 2010.

Prior to the Applicant's arrest investigators had arrested his colleague who is now jointly charged with him, Bongani Sicelo Mbambo at a house in Malbereign, Harare.  It is Mbambo who led the police to where the accused was.

After the Applicant and Mbambo were arrested, they were interrogated by the police and they directed them to Sloane Lodge in Harare where the other two co-accused namely Everton Khupe and Mandlenkosi Gumisayi had been booked after their arrival from South Africa where they were based.

Further instigations by the police established that finger prints uplifted from the scene of the crime at Welt Hunger Hilfe No. 6 Wallasey Street, Donnington, Bulawayo, matched those of one of the accused persons Everton Khupe who had been arrested at Sloane Lodge Harare after being fingered by the Applicant and Mbambo.  In addition Khupe and Gumisayi were positively identified by the complainants in a formal identification parade conducted by the police.  These two, Khupe and Gumisayi could not have been known as the police had no leads on them had it not been for the confessions of the Applicant and Mbambo.

Historically, the circumstances are that on the 27th March 2010 at 10:11 hours, the complainant received a call on his mobile phone from mobile phone number 0912 861 368.  The caller enquired as to when the complainant was coming to the office as that caller was waiting for the complainant in the office.  The caller was advised that the complainant would be coming in due course.

When the complainant arrived at the office the caller in question was not there but at 11:40 hours the offices were raided by robbers who specifically demanded to be shown 2 safes of the company from where they took away cash and other valuables.  This suggested that they were aware of the existence of those safes.

The call that was made to the complainant was later traced to Applicant's mobile phone number 0912 861 368 resulting in the Applicant being a prime suspect.  When the Applicant was finally traced and arrested in Harare where he had relocated to presumably after the offence had been committed, he was still in contact with Mbambo, another Bulawayo based individual who had also relocated to Harare.  With the combined assistance of the Applicant and Mbambo the police were able to arrest Khupe and Gumisayi, the two who are believed to have carried out the robbery.

Indications made by the Applicant and Mbambo led to the recovery of some of the items stolen from the scene of the crime, that is, a cordless handset recovered at a bush in Selbourne Park along Cecil Avenue, Bulawayo.  Mbambo led the police to the recovery of a Mazda 323 vehicle which had been used as a gateaway vehicle.

Ms Ndlovu, for the State has submitted that investigations have been completed and the docket submitted to the relevant Attorney General's office for set down although there has been delays in doing so.

Mr Mazibisa representing the Applicant has strongly argued that the confession and/or indications made by the Applicant were obtained through torture.  He relied on a medical report dated 21 May 2010 submitted to his firm by Dr. A. M. Dube, the Regional Prison Medical Officer who examined the Applicant on the 20th May 2010.  The doctor observed some injuries on the Applicant and that he was having difficulties in walking and he concluded that it was “a case of severe soft tissue injury due to assault.”

Prima facie, therefore the Applicant may have been assaulted.  However this Court is not presently sitting to determine the admissibility or otherwise of the evidence that may be led by the State.  The present inquiry is limited to the fundamental principle of upholding the interests of justice.  Taking into account the factors contained in Section 117 of the Criminal Procedure and Evidence Act, [Chapter 9:07], the Court must endeavour to strike a balance between the protection of the liberty of the individual and the administration of justice.

The administration of justice may be prejudiced if the accused person does not stand trial, commits other offences while on bail or interferes with witnesses.  The usual barometer to determine the probability of abscondment is where, owing to the strength of the evidence standing against him, the accused person is likely to abscond.  S v Malunjwa HB 34/03.

In assessing the risk of abscondment the Court is guided by the character of the charges and the gravity of the sentence the accused may face if convicted see S v Jongwe 2002 (2) ZLR 209(S).

In the present case the evidence against the Applicant is very strong.  He was arrested in Harare almost two months after the commission of the offence and he appears to had relocated to evade justice.  His two other accomplices must have relocated to South Africa after the offence where they have residences there and it was probably fortuitous that they were cornered at a lodge in Harare.

The offence of armed robbery is very serious and if convicted the Applicant is likely to be incarcerated for a very long time.    Therein lies the risk of absondment.  In any event, investigations are complete and the Applicant should be agitating for his trial date to enable him to prove his innocence.

For these reasons the application for bail is dismissed.

 

 

Messrs Cheda and Partners, applicant's legal practitioners

Criminal Division, Attorney General's Office, respondent's legal practitioners
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