The appellants who were not
admitted to bail can be divided into three categories for the purpose of
examination of the facts on which the court a quo found that there was a
likelihood that the accused, if he or she were released on bail, will not stand
his or her trial. The categories are:
(a)Those
who were found to have been hiding at a lodge and at the workplace in order to
evade arrest.
(b)Those who were found to
have contacts outside Zimbabwe.
(c)
Those who fled the scene of crime in motor vehicles to evade law enforcement
agents and allegedly aided and abetted other alleged perpetrators of the
offence, to evade justice.
The
first category consists of the first, sixth and seventh appellants. The
following are the facts found by the court a quo in respect of each of them:
Tungamirai Madzokere -
First Appellant
He was
arrested while allegedly hiding from the police at Palm Lodge along Selous
Avenue in Harare. The court a quo found that:
“He did not explain what he
was doing at the lodge, leaving the police's allegations that he was hiding to
avoid arrest unchallenged. Mr Kwaramba, for the applicants, alleged that
Ollyn Madzokere and Mavis Madzokere were arrested by the police as bait for the
first applicant who they were looking for, and were only released when the
applicant was arrested. Though not a proper way of pursuing the arrest of
an accused person, as it interferes with the rights of innocent third parties,
however, proves that the first applicant was avoiding arrest. This,
coupled with the fact that he had left home and was staying at a lodge several
kilometers from his house in Glen View is proof that he is a flight
risk. He also made indications at the scene which were captured on
video. This further strengthens the respondent's case against him and may
cause him to abscond.”
Yvonne Musarurwa - Sixth
Appellant
She was
arrested at Palm Lodge, and this is not disputed, although counsel for the
applicant contended that this does not mean that she was hiding from the
police. The court a quo found that:
“This is
clearly not of any help to the applicant's case. A serious allegation was made
that she abandoned her residence to avoid the police, yet all that could be
said is that, that information is colourless. It certainly colours the
applicant a flight risk. While there could be nothing wrong with booking
oneself into a lodge under normal circumstances, there is certainly something
wrong if one does it for purposes of avoiding arrest. That indicates an
intention to avoid having to answer charges. It makes her a flight risk.”
Rebecca Mafukeni -
Seventh appellant
She,
like the first and sixth appellants, was arrested at Palm Lodge, and the
court's findings are exactly identical to those of the sixth appellant above.
In
addition to the first, sixth and seventh appellants who were arrested at Palm
Lodge and found to have been hiding to evade arrest, making them flight risks,
another appellant was arrested at his workplace.
Stanford Mangwiro -
Fifth appellant
The court a quo found that:
“He is a flight
risk. The Investigating Officer, in his affidavit of 10 June 2011, said he
had deserted his residential address and was staying at his work place where he
told some workmates that his hands were painful because of the assault he did
on some police officers.”
The
second category of appellants consists of those who were found to have a
propensity to abscond, and to be flight risks, for the reason that they had
relatives outside Zimbabwe, in Botswana.
Lazarus Maengahama -
Second appellant
The court a quo found that:
“The
fact that the applicant works in Botswana tilts the scales in favour of the
interests of justice. Granting the applicant bail on the promise that he
will abandon his employment in Botswana, and surrender his travel documents, is
taking a serious risk as the applicant is most likely to abscond as no
explanation has been given as to how he will survive without a job. He is
experienced at living outside the country and is going to be constantly
thinking about the case, which I have already said is fairly strong. He
might, while waiting for his trial, succumb to the temptation to flee back to
Botswana or any other country as he has obvious contacts outside the country.”
Stanford Maengahama
-Third Appellant
Counsel
for the respondent, in his heads of argument, conceded that the court a quo
erred, and misdirected itself, in its finding in regard to this appellant. The
court a quo said:
“He is
not employed, and he stays at his brother's house. He is single. He
therefore has no attachments to Zimbabwe which would persuade him to wait the
trial of this case. He lied in his application that he has no connections
outside Zimbabwe. This is a lie as his brother, the 3rd applicant, is
working in Botswana. He is a strong, reliable contact person, who will
have an obvious interest in helping him once he leaves the country. The
fact that he lied to the court makes it difficult for the court to believe him
when he says he is prepared to stand trial.”
The
third category of appellants is that of those who were found to have a
propensity to abscond, and to be flight risks, on the basis of allegations that
they evaded arrest by fleeing from the scene of the crime, and aided and
abetted other perpetrators of the offence to evade justice.
Phineous Nhatarikwa -
Fourth appellant
The court a quo said:
“Mr
Kwaramba submitted that the State's allegation that he drove off when the
deceased tried to get into his vehicle proves he was not involved in the attack
against the deceased. He further submitted that the fact that he parked a
few metres away does not get him involved in the crime charged. Mr
Nyazamba, for the respondent, submitted that the fact that people who had
attacked the deceased got into his car and he drove away with them at high
speed means he was aiding and abetting those who attacked and killed the
deceased.
I agree
with Mr Nyazamba's reason.
In fact,
that he was driving those who attacked the deceased from the scene is an
indication that he is likely to abscond. It is known that the car he was
driving was traced to him through CVR. He now knows he is facing a serious
offence. His instincts towards fleeing from brushes with the law may have
been reactivated. He is not a good candidate for bail.”
All
seven appellants were not admitted to bail. They now appeal to this court
against the refusal to admit them to bail.
The grounds of appeal are
as follows:
1. The court
a quo erred by finding that the appellants were flight risks, there being
insufficient evidence showing any inclination to abscond.
2. The
court a quo grossly misdirected itself by making findings which were not
supported by the facts and evidence placed before the court.
3. The
distinctions drawn by the court for granting bail to other jointly charged
applicants and denying others are improper distinctions. Where there is an
improper distinction there is no distinction at all. The court ought to
have treated like-accused alike.
4. The
first, sixth and seventh appellants were denied bail for the reason that they
were hiding at lodges to avoid arrest, and as such were flight risks. This
finding was not supported by the facts and evidence placed on record. The
court a quo mistook the facts.
5. The
court a quo erred in coming to the conclusion that the second appellant's
assurances to give up his employment in Botswana was not sufficient if he could
not explain how he would survive without a job. In doing so, the court
allowed an extraneous matter to guide or affect it.
6. The
court a quo erred in coming to the conclusion that because of the second appellant's
experience travelling outside the country, and his contacts outside Zimbabwe,
he could be tempted to avoid trial. In doing so, the court failed to treat
the second appellant like other applicants who were granted bail but had travel
documents and had travelling experience outside the country.
7. The
court a quo erred in accepting the allegations of the State as fact. In
doing so, it allowed extraneous matters to guide or affect it.
8. The
court a quo erred in finding that the video evidence strengthened the
respondent's case and would induce the first appellant to abscond. In that
regard, the court a quo erred in taking all the allegations of the State to be
factual truths, even where there was insufficient evidence to support them.
9. The
court a quo misdirected itself as to the evidence. The finding that the
State case is fairly strong was not supported by the evidence placed on record.
10. The
court a quo erred in coming to the conclusion that the third appellant lied
that he had no connection outside the country when he had a brother in
Botswana. It failed to consider that the brother was no contact at all as
he was also in custody together with him. In doing so, the court failed to
take into account a relevant consideration.
11. The
court a quo erred in failing to treat like accused alike. The third
appellant and his brother, Last Maengahama, had both stated in their bail
application that they had no connection outside the country when they both had
a brother who worked in Botswana. Yet the court granted bail to Last
Maengahama and refused to grant bail to the third appellant.
12. The
court a quo was wrong in denying the fourth appellant bail. The court
could not have taken it as a proven fact that the fourth appellant was at the
scene and that he drove off at high speed. Such allegations were not
proved, and, as such, they could not be a basis for denying
bail. Therefore, the court mistook the facts.
13. The
court a quo erred by failing to come to the conclusion that by going to the
police station to give food to those who had been arrested, the fourth
appellant had not exhibited any evasive tendencies.
14. The
court a quo denied the fifth appellant bail on the basis of an allegation by a
police officer that the fifth appellant had deserted his home to stay at his
workplace and that he had bragged to his workmates about beating police officers. This
finding was not based on any evidence. The court seriously misdirected
itself on the facts which amounts to a misdirection in law.
15. The
court a quo failed to consider that whatever the State's fears were in regard
to the seven appellants, they could be taken care of by the imposition of
appropriate bail conditions. In fact, all those denied bail were not shown
to possess any special means which would enable them to breach stringent bail
conditions.
In his
submission before the Court, in support of the grounds of appeal, counsel for
the appellants argued as follows:
The
respondent had conceded that the third appellant, Stanford Maengahama, is a
suitable candidate for admission to bail, and that he ought to have been
admitted to bail by the court a quo. In effect, the concession was to the
effect that the court a quo erred and misdirected itself when it refused to
admit the third appellant to bail.
Counsel
for the appellants submitted that it was common cause, or accepted by both
parties, in their heads of argument, that the lower court declined to admit all
seven appellants to bail on the basis that there was a real likelihood of the
appellants not standing trial if released on bail. Counsel for the
apellants urged the court to consider the circumstances of Tungamirai Madzokere
(first appellant), Yvonne Musarurwa (sixth appellant) and Rebecca Mafukeni
(seventh appellant) as the same because all three were denied bail on the basis
that they were flight risks after having been arrested while they were hiding
from the police at a lodge in Harare. It was argued that the Investigating
Officer's conclusion that these three appellants were hiding in order to evade
arrest, was accepted by the court a quo. The court a quo took it a step
further and found that the appellants ought to have explained their presence at
the lodge when they were arrested. Counsel for the appellants said that
another judge of the High Court held, in a subsequent bail application, that
the explanation offered that the appellants were at the lodge on frolics of
their own, could not be accepted because it should have been given at the
initial bail hearing.
Counsel
for the appellants view was that the crux of the matter is whether the nature
of the evidence placed before the court a quo was of sufficient cogency as to
prove that the three appellants were hiding from arrest. He relied on the
case of S v Hussey 1991 (2) ZLR 187 (S) as authority for the proposition that a
certain level of cogency of evidence must be reached capable of justifying a
decision not to release an accused person on bail. He argued that the
evidence placed before the court a quo, through the affidavit by the Investigating
Officer, was not cogent enough for the purpose of a finding that the appellants
were at the lodge to avoid arrest.
It was
submitted that the affidavit does not state how long each of the three
appellants had stayed at the lodge bearing in mind that they were arrested
within 48 hours of the commission of the offence that they were subsequently
charged with. The affidavit did not state whether the appellants were
booked at the lodge under their own names, or whether they had packed any
clothing to indicate an intention to stay at the lodge for a long
period. Lastly, counsel for the appellants submitted that the affidavit
does not state that the appellants knew, at the time of their arrest that the
police were looking for them in connection with the alleged murder. He
said had such evidence been in the affidavit it would have satisfied the test of
cogency to justify a finding by the court a quo, that the three appellants
intended to evade justice and were hiding at the lodge for that purpose.
Counsel for the appellants submitted that there was no reason why the court a
quo disbelieved the appellants' explanation that they were at the lodge to
conduct romantic liaisons. He said the sixth and seventh appellants are
single and at liberty to do as they please. He argued that the burden was
on the State to place sufficient evidence before the court to show that the
three appellants were hiding to evade arrest. According to him, the State
failed to discharge the onus.
Counsel
for the appellants pointed out that the allegation that the first appellant
made indications at the scene of the crime which were captured on video is
subject to being proved at the trial. He said the court a quo erred and
misdirected itself in taking the allegation into consideration when it refused
to admit the first appellant to bail. It was submitted that the first
appellant would tell the trial court that the video was inadmissible because it
was obtained by torture. He said he was denied access to legal
representation. In short, the admissibility of the video would be put in issue
before the trial court. The evidence contained therein, which the court a
quo relied on without viewing the video, was not proven. It was submitted
that the court a quo misdirected itself in relying on the allegation that the
evidence in the video made the State case against the first appellant
stronger. It was argued that the first appellant has strong ties to his
community, and that, as a local councillor, he was anxious to go to trial in
order to clear his name. The failure by the court a quo to take this fact
into consideration amounted to a failure to take into account a relevant
consideration. According to counsel for the appellants, the allegation that the
first appellant was evading arrest, as shown by a text message on his wife's
cellphone, was insufficient to prove that the first appellant was hiding to
evade arrest. By relying on the allegation, the court a quo allowed an
extraneous or an irrelevant fact to guide it. That is a misdirection.
The
court was urged to compare the circumstances of the first appellant with those
of Zwelibanzi Dube and Simon Mudimu, the fourteenth and fifteenth applicants in
the lower court. Both were admitted to bail despite the fact that Zwelibanzi
Dube was arrested after a night raid at his home. The court a quo found
that there was no explanation as to why repeated police efforts to arrest him
during the day had failed. It held that the lack of explanation should be
resolved in Zwelibanzi Dube's favour. With the first appellant, the court a quo
held that failure to explain his presence at Palm Lodge did not leave room for an
innocent explanation. The court held that Zwelibanzi Dube should be given
the benefit of the doubt for the lack of clarity in the Investigating Officer's
affidavit. Similarly, it was argued that Simon Mudimu, the fifteenth applicant
in the court a quo, was arrested during a night raid after police efforts to
arrest him during the day had failed. Yet, the court a quo found that
failure to show that Simon Mudimu was aware that the police were looking for
him was in his favour. Counsel for the appellants argued that there is
clear failure by the court a quo to treat like-accused alike. That is a
misdirection. It was argued that the court a quo failed to treat the
first, sixth and seventh appellants the same as Zwelibanzi Dube and Simon
Mudimu.
On the
application of the principle of propensity to abscond, counsel for the
appellants submitted that there was no evidence before the court a quo
justifying a finding that the appellants were guilty of such
propensity. He defined propensity as “an inclination to repeat behaviour
the third time; to repeat a similar act. Likelihood to behave in a certain way,”
and submitted that propensity is a strong word and is best described as
evidence of inclination towards repetition of behaviour. The court was asked to
consider whether being found in a lodge within 48 hours after allegedly
participating in the commission of a criminal offence supported a finding of
propensity to evade justice. It was submitted that no evidence of intention to
hide and evade arrest, or of propensity to abscond, was placed before the court
a quo.
The
fifth appellant was arrested at work.
Counsel
for the appellants submitted that there was no evidence placed before the court
a quo to show that he was aware that police were looking for him and that he
was hiding from them at his work place. There was no evidence as to how
long he had been allegedly hiding; no clothes, blankets or other items were
recovered to show that he was living there. Such evidence would have been
sufficient to justify an inference that he was hiding from the police.
It was
argued that Gabriel Shumba, the fifth applicant in the court a quo, was
admitted to bail yet he was arrested in a night raid at his home where he was
found hiding in a wardrobe in a bid to evade arrest. The Investigating
Officer did not aver that Gabriel Shumba had a propensity to abscond. To the
contrary, the fifth appellant was alleged to have a propensity to
abscond. The circumstances of the arrest are similar. In Gabriel Shumba's
case, it is a fact that he was hiding in a wardrobe to avoid arrest. It
was submitted that in the fifth appellant's case, the allegation that he was
hiding from the police at his workplace is subject to proof. Counsel for
the appellants submitted that is evidence of the failure by the court a quo to
treat like-accused alike. That he said was misdirection on the part of the
lower court.
The
second appellant worked in Botswana. He was found to have a propensity to
abscond. It was submitted by counsel for the appellants that this was a
serious misdirection on the part of the court a quo. He said most of the
applicants who were admitted to bail have passports and are frequent travellers
outside the country. They had contacts outside the country. Last
Tamai Maengahama is a brother to the second appellant. He is one of three
brothers who were arrested in similar circumstances and is facing similar
charges. He is the most affluent of the three brothers and better
travelled to other countries yet he was admitted to bail and ordered to surrender
his passport. The court a quo did not find that he was likely to abscond
because he had contacts outside the country. There was a failure to treat like
accused alike.
It was
submitted that the court a quo appreciated the elements of the principle of propensity.
It however misapplied the principle and confused itself by the phrase
propensity to abscond. The court a quo said:
“What
would establish a strong propensity is evidence that the applicants have
previous convictions for public violence and are facing several similar cases;
it should be carefully considered to ascertain whether that likelihood is
present.”
Counsel
for the appellants argued that the fourth appellant was treated by the court a
quo as if the allegation by the Investigating Officer, that he fled from the
scene of the crime had been proved. It was submitted that this was a
misdirection because the fourth appellant disputed the averment. No
witnesses were called to testify that he indeed fled from the scene despite the
fact that the Investigating Officer alludes to the fact that the fourth
appellant was observed by undercover agents. It was argued that, even if
it were accepted that the fourth appellant fled from the scene of the crime
with the intention of evading arrest, it would not establish a propensity to
abscond. Counsel for the appellants submitted that, for a finding of a
propensity to abscond to be justified, there has to be evidence of repeated or
habitual acts of evading the arm of the law. He said the court a quo
misdirected itself because there was no evidence of such behaviour by the
fourth appellant. On the contrary, it was argued that the fact that the
fourth appellant took food to some of his colleagues who were at a police
station should have been treated as evidence of lack of intention to evade the
police.
The
court was asked to compare the circumstances of the fourth appellant with those
of Cynthia Manjoro, the eleventh applicant in the court a quo. She was
alleged to have sped off from the scene of the crime, in a motor vehicle with
some of the deceased's assailants. The Investigating Officer alleged that
this showed an intention to evade arrest on her part. The court a quo initially
found her to be a flight risk but later admitted her to bail on the basis of
changed circumstances. Counsel for the appellants submitted that the
fourth appellant should have been treated in the same manner as Cynthia
Manjoro. He said the court a quo misdirected itself in failing to do so.
Counsel
for the respondent indicated to the Court that, after a careful consideration
of the submissions by counsel for the appellants, taking into account the
principles of law applicable in an appeal of this nature, and the findings of
the court a quo, the State was prepared to make the following concession. It
conceded that:
1. The
court a quo may have misdirected itself by failing to apply the principle of
treating like accused alike, or of equal treatment of accused persons facing
similar charges, in an application for bail pending trial.
2. The
misdirection was of such a serious nature as to justify the court's
interference with the exercise of discretion by the lower court, and
substituting its own discretion, in respect of the second, third, fourth, fifth, sixth and seventh appellants.
3. Gabriel
Shumba was hiding in a wardrobe when he was arrested and he was admitted to
bail. His circumstances are similar to those of the first, sixth and seventh appellants
who were arrested while allegedly hiding at Palm Lodge. The court a quo erred in granting Gabriel
Shumba bail and denying it to the appellants in similar circumstances.
4. The
court a quo was correct not to take the seriousness of the offence, alone, as a
factor in denying the appellants admission to bail.
Counsel
for the respondent submitted that the respondent was not making the same
concession in respect of the first appellant. He said apart from being
arrested at a lodge and found to have been hiding to evade the police, the
first appellant made indications at the scene of the crime. He said the
first appellant made a statement in which he allegedly gave details of his
participation in the commission of the offence. Counsel for the respondent
argued that the evidence that the first appellant was hiding at the lodge is
different from what the Investigating Officer said about the sixth and the
seventh appellants. The first appellant allegedly sent a text message to
his wife telling her not to open the door to anyone and not to tell anyone
where he was. Counsel for the respondent said the communication showed
that he was aware that the police were looking for him and his presence at the
lodge was an attempt to evade arrest. Counsel for the respondent submitted that
the court a quo was correct in finding that the first appellant was a flight
risk because of the strength of the State case against him. It was
conceded that while Gabriel Shumba's circumstances were similar to that of the
first, sixth and the seventh appellants in that they were all arrested while
hiding from the police, they differed materially in respect of the first
appellant. He said there was the additional circumstance of the first appellant
having made indications which were captured on video. The indications
distinguished his case from that of Gabriel Shumba and the other appellants.
Counsel
for the respondent argued that the meaning of the phrase "propensity to
abscond" was that the accused person had an inclination to repeat what he
has done before. He submitted that the evidence before the court a quo showed
that the first appellant had an inclination to repeat what he had done before
which he said was that:
1. He
fled from the scene of the crime and evaded arrest by police officers. He
even aided and abetted other assailants of the deceased to flee from the
police.
2. He
stayed away from home and warned his wife not to open the door or tell anyone
where he was.
3. He
harboured the sixth and seventh appellants at Palm Lodge and assisted them to
evade arrest.
4. The
court a quo refused to accept his explanation that he was at Palm Lodge for
purposes of a romantic liaison.
Counsel
for the appellants argued that consideration of the definition of propensity,
set out by the court a quo, will show that the first appellant cannot be found
to have a propensity to abscond. The reason is that the nature of the
evidence placed before the lower court consisted of bald assertions by the
Investigating Officer. The admissibility of the video evidence was going
to be challenged at the trial. He said there was no suggestion that the first
appellant has been convicted of similar offences or that he faced similar
charges before and evaded arrest, justifying a finding that he has a propensity
to abscond. Counsel for the appellants said that if the court applies the
principle of treating like-accused alike, the first appellant should be treated
in the same manner as the applicants who are alleged to have made indications
at the scene of the crime. They were admitted to bail. Counsel for
the appellants argued that as the first appellant is not the only one who is
alleged to have made indications there is no reason for not treating him in the
same manner as those other accused persons who are facing similar allegations
and yet have already been granted bail….,.
A
concession has been made by the State counsel in respect of the sixth and
seventh appellants on the ground that the court a quo erred in finding from the
single incident of avoiding arrest that they had a propensity to
abscond. The same concession, which the court finds was properly made, was
not extended to the first appellant.
When
considering the case of the first appellant, it is necessary to state that the
substantive grounds on which the misdirection by the court a quo was conceded
in respect of the sixth and seventh appellants apply to him. The principle
of equality of treatment which requires that those who are in like
circumstances must be treated alike would apply. This is particularly so
when regard is had to the case of Gabriel Shumba. He was arrested by the
police at night whilst hiding in a wardrobe at his home. The court a quo
granted Gabriel Shumba bail. Hiding in a wardrobe to avoid arrest is not
different from hiding in a lodge to avoid arrest. Both places serve the
same purpose in as far as their occupants are concerned. The Court finds
no reasonable basis for differentiating the first appellant from the sixth,
seventh appellants and Gabriel Shumba….,.
There is
a concession in respect of the fourth appellant. The court finds that the
concession is properly made. The principle of equality of treatment
applies in favour of this appellant.
One
Cynthia Manjoro was arrested for the same crime as the fourth appellant. The
allegation against her was that after the deceased had been killed she allowed
the assailants to get into her car and drove from the scene with them at high
speed. The same allegation was made against the fourth appellant. Both
cars did not belong to the drivers. They were traced through the Central
Vehicle Registry (CVR) to the political party of which they were
members. Cynthia Manjoro was granted bail whilst the fourth appellant was
refused bail.
In
light of the concession and the fact that there are no substantial grounds on
which the case of Cynthia Manjoro and that of the fourth appellant can be treated
differently he is entitled to be released on bail.
