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HB55-09 - MPUMELELO MPOFU vs THE STATE

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Bail-viz bail pending trial.

Bail-viz bail pending trial re armed robbery.
Bail-viz bail pending trial re car-jacking.
Bail-viz bail pending trial re accused residing outside jurisdiction of the court iro risk of abscondment.
Bail-viz bail pending trial re accused being the holder of a foreign passport iro flight risk.
Bail-viz armed robbery.
Bail-viz car-jacking.
Bail-viz ordinary place of residence re flight risk.
Bail-viz ordinary country of residence re flight risk.
Bail-viz ordinary country of residence re jurisdiction of the court.
Procedural Law-viz rules of evidence re uncontradicted evidence.
Bail-viz fixed abode re citizen iro flight risk.

Bail re: Bail Pending Trial iro Approach, Constitutional Right to Bail & Denial of Bail in the Interests of Justice

This is an application for bail pending trial.

The application is opposed by the respondent on two grounds, i.e.

(a) The applicant is likely to abscond.

(b) The applicant will endanger the safety of the public.

The background facts are the following.

The applicant is facing a count of armed robbery and a count of car-jacking.

It is alleged that on 20 February 2009, and at around 1730 hours, the applicant, in the company of five (5) others, three of whom are still at large, drove a white Nissan Sentra motor vehicle and a maroon BMW motor vehicle, bearing South African registration numbers, to a secluded spot near Richmond Kwik Spar Supermarket in Bulawayo.

The BMW motor vehicle belongs to the applicant.

The applicant, together with the abovementioned accomplices, two of whom were armed with pistols, went inside the said supermarket and therein robbed the occupants of hard cash, mobile phones, wines, and orange crush. On exiting the supermarket, they came across one Owen Munyakuri who was seated in the driver's seat of a Ford Transit motor vehicle. The gang threatened to shoot him, and by use of these threats and violence, forced him out of the vehicle. They further stole money on his person and also a mobile phone..., the gang drove away in his vehicle. Whilst fleeing from the scene, one of the group discharged a firearm twice.

The applicant states that he is a married man with a child. He avers that he has a fixed abode at 42028/1 Ejingeni Flats, Makokoba in Bulawayo.

It is beyond dispute that the applicant is a holder of a South African passport in the name of Dladla Thokozani Magnificent which shows that he is a South African citizen. His BMW motor vehicle is registered in South Africa. He has not explained why he travels with a South African passport with such particulars. He has not explained why his vehicle is registered in South Africa.

It is beyond dispute that the applicant lives outside the jurisdiction of this court, and uses a foreign passport, and different names. He is in a much better position than an average citizen to abscond, even though his passport has been impounded by the police – S v Ndlovu 2001 (2) ZLR 261 (H).

As alluded to above, the applicant is a flight risk.

He seems to be ordinarily resident in South Africa. His true identity is unknown and difficult to ascertain. The applicant is not a suitable candidate for bail – S v Chikomba & Anor HB120-03.

The application must fail, and the applicant is refused bail.

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

Robbery and car-jacking using firearms are viewed as very serious crimes by our courts, and invariably attract long prison sentences – S v Zuze GS 261-81; S v Dumani HB64-82; and S v Chidoipa & Anor HH60-84.

The likelihood of lengthy prison terms will tempt the applicant to abscond – S v Hudson 1980 (4) SA 145 (D); S v Ho 1979 (3) SA 730 (W)...,.; and S v Munatsi HB21-05.

NDOU J:        This is an application for bail pending trial.  The application is opposed by the respondent on two grounds, i.e.

(a)                the applicant is likely to abscond

(b)               the applicant will endanger the safety of the public

The background facts are the following.  The applicant is facing a count of armed robbery and a count of car-jacking.  It is alleged that on 20 February 2009 and at around 1730 hours the applicant, in the company of five (5) others, three (3) of whom are still at large drove a white Nissan Sentra motor vehicle and a maroon BMW motor vehicle bearing South African registration numbers to a secluded spot near Richmond Kwik Spar Supermarket in Bulawayo.  The BMW motor vehicle belongs to the applicant.  The applicant together with the above-mentioned accomplices, two of whom were armed with pistols went inside the said supermarket and therein robbed the occupants of hard cash, mobile phones, wines and orange crush.

            On exiting the supermarket they came across one Owen Munyakari who was seated in the driver's seat of a Ford Transit motor vehicle .  The gang threatened to shoot him and by use of these threats and violence forced him out of the vehicle.  They further stole money on his person and also a mobile phone.  A body search completed, the gang drove away in his vehicle.  Whilst fleeing from the scene one of the group discharged a firearm twice.  The applicant states that he is a married man with a child.  He avers that he has a fixed abode at 42028/1 Ejingeni Flats, Makokoba in Bulawayo.  It is beyond dispute that the applicant is a holder of a South African passport in the name of Dladla Thokozani Magnificent which shows that he is a South African citizen.  His BMW motor vehicle is registered in South Africa.  He has not explained why he travels with a South African passport with such particulars.  He has not explained why his vehicle is registered in South Africa.  It is beyond dispute that the applicant lives outside the jurisdiction of this court and he uses a foreign passport and different names.  He is in a much better position than an average citizen to abscond even though his passport has been impounded by the police – S v Ndlovu 2001 (2) ZLR 261 (H).  Further, robbery and car-jacking using firearms are viewed as very serious crimes by our courts and invariably attract long prison sentences - S v Zuze GS 261-81; S v Dumani HB 64-82 and S v Chidoipa & Anor HH-60-84.  The likelihood of lengthy prison terms will tempt the applicant to abscond – S v Hudson 1980 (4) SA 145 (D); S v Ho 1979 (3) SA 730 (W) at 740B and S v Munatsi HB-21-05.  As alluded to above, the applicant is a flight risk.  He seems to be ordinarily resident in South Africa.  His true identity is unknown and difficult to ascertain.  The applicant is not a suitable candidate for bail – S v Chikomba & Anor HB-120-03.  The application must fail and the applicant is refused bail.

 

 

 

 

Messrs T Hara & Partners applicant's legal practitioners

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