Law Portal
Zimbabwe

Welcome To Law Portal

Welcome, Guest!
[Help?]

HH189-10 - THE STATE vs WILLIAM CHARAMBA and CLEVER MADZANGA

  • View Judgment By Categories
  • View Full Judgment

Bail-viz robbery committed in aggravating circumstances re section 126 of the Criminal Law (Codification and Reform) Act [Chapter 9:23]. 

Armed Robbery-viz section 126 of the Criminal Law (Codification and Reform) Act [Chapter 9:23].
Bail-viz bail pending trial re armed robbery.
Bail-viz bail pending trial re specified offences.
Procedural Law-viz remand proceedings re Form 242.
Procedural Law-viz remand proceedings re Form 242 iro request for remand.
Bail-viz bail pending trial re presumption of innocence.
Bail-viz bail pending trial re strength of the State case.
Bail-viz bail pending trial re interference with witnesses.
Bail-viz bail pending trial re interference with investigations.
Bail-viz bail pending trial re assurance to comply with imposed bail conditions.
Bail-viz bail pending trial re family responsibilities.
Bail-viz bail pending trial re fixed abode.
Bail-viz bail pending trial re travel documents.
Bail-viz bail pending trial re risk of abscondment.
Bail-viz bail pending trial re fear of committing further offences.
Bail-viz bail pending trial re propensity to commit further offences.
Bail-viz bail pending trial re completion of police investigations.
Bail-viz bail pending trial re period the accused have been in custody prior to trial.
Bail-viz bail pending trial re seriousness of the offence.
Bail-viz bail pending trial re prospects of a lengthy custodial sentence iro fear of abscondment.
Bail-viz bail pending trial re accomplices still at large.
Bail-viz bail pending trial re chances of a conviction iro evidence of identification.
Bail-viz bail pending trial re interests of justice.
Bail-viz bail pending trial re indications.
Bail-viz bail pending trial re strength of the State case iro linking the accused to the offence.
Bail-viz bail pending trial re prima facie evidence of the accused having committed the offence.
Bail-viz accomplice re principle of equality of treatment.
Bail-viz co-accused persons re principle of equality of treatment.
Bail-viz jointly charged accused persons re the principle of equality of treatment.
Bail-viz bail pending trial re the administration of justice.
Bail-viz bail pending trial re strength of the State case iro physical evidence.

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

Both applicants are being charged with two counts of robbery committed in aggravating circumstances as defined in section 126 of the Criminal Law (Codification and Reform Act) [Chapter 9:23].

The request for remand, Form 242, outlines in brief the allegations being made against both applicants which can be summarized as follows. It is alleged that on 8 April 2010, at about 0200 hours, the two applicants, in the company of two other unknown accomplices who are still at large, proceeded to Tengwe Shopping Centre in the Makonde area armed with a firearm. It is alleged that two of them were in army uniform. 

In Count 1:

It is alleged that they approached a shop belonging to Bangura and confronted two little girls, Precious Bangura aged 15 years and Poshia Bangura aged 8 years. The two girls were the shopkeepers selling liquor and other groceries and were about to close the shop when they were confronted by the applicants and the alleged accomplices who demanded cash threatening to shoot the two girls. They forcibly took US$37= consisting of the day's whole takings and all groceries in the shop. They proceeded to lock the shop from outside leaving the two girls trapped inside the shop.

It is alleged that thereafter they proceeded, in Count 2,  to Magomo Shop at the same Business Centre still armed. Zivanai Guvheya, the shopkeeper, had retired to bed inside the shop when the applicants and the accomplices stormed into the shop demanding cash. They forcibly took US$48= and various groceries.

In both counts, the applicants and the accomplices took property valued at US$278= of which nothing was recovered.

The applicants are denying the allegations and any involvement in the commission of the alleged offences. Both applicants were arraigned before a Karoi Magistrate on 19 April 2010 and they have been in custody to date, a period of about four months. The applicants are seeking bail pending trial since they are facing specified offences.

The application is opposed.

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

The applicants submitted that they are proper candidates for bail. The first applicant, William Charamba, is thirty years old and a traditional healer (popularly known in Shona as tsikamutanda). He resides with his family at No.407 Chikonohono Township in Chinhoyi. The second applicant, Clever Madzanga, is thirty eight years old and resides at Plot No.9 Parental Farm in Tengwe area where he is engaged in farming.

The following reasons were given by both applicants on why they should both be admitted to bail pending trial -

(a) That they are denying the allegations and that the presumption of innocence operates in their favour.

(b) That the State case (against them) is very weak as investigations which are now complete failed to link both of them in any manner to the commission of both offences as none of the applicants was found in possession of the stolen property or the firearm allegedly used in the commission of the offences.

(c) That they have not exhibited any inclination to interfere with witnesses or investigations and are willing to abide by any bail conditions imposed by the court.

(d) That both applicants are family men of fixed abode without any travel documents hence would not jeopardize the interests or justice by absconding as chances of them being convicted of these offences are virtually non-existent.

(e) That the claim that they will commit further similar offences if released on bail is unfounded as both applicants have no such history and are not facing any other charges.

(f) That investigations were due to be completed by 10 May, some two months ago, and that the applicants have been in custody for about four months.

The respondent strongly opposed this application.

An affidavit filed by Detective Sergeant Collen Zimbudzi outlines the reasons why the applicants should not be admitted to bail. In brief, the respondent submitted the following -

(a) That the applicants are facing very serious offences of robbery committed in aggravating circumstances as they were allegedly armed. Consequently, the applicants, if convicted, would be visited with lengthy custodial sentences as the maximum penalty provided for is life imprisonment. In the circumstances, the risk of absconding is very high.

(b) That the firearm used in the commission of the offences was not recovered and that the two other accomplices are at large. The fear, therefore, is that both applicants would use the firearm to commit further offences and team up with the alleged accomplices still at large.

(c) That the State case is very strong and the chances of securing a conviction in respect of both applicants are very high as both applicants were identified by the complainants.

(d) That the applicants are likely to interfere with the interests of justice if released on bail as the stolen property was not recovered.

(e) That the victims in Count 1 are very young children who are susceptible to interference and intimidation by the applicants if released on bail.

(f) That the applicants have been uncooperative with the police investigations because, upon arrest, they implicated two serving members of the Zimbabwe National Army based at 2:3 Infantry Battalion, one Bigboy Chihambakwe and Calvin Zivanai, as their accomplices. However, further investigations revealed that both applicants were falsely implicating the two soldiers. The applicants are therefore viewed as being keen to put police on a wild goose chase, and, in the process, conceal the real identity of their accomplices for sinister motives. Both applicants have, however, denied implicating any person. In fact, they submitted that such a suggestion is weird as they themselves are denying the charges.

This court has pronounced on a number of occasions the factors to be considered in an application for bail pending trial and how those factors should be assessed  See:  Attorney General v Phiri 1987 (2) ZLR 33 (H); S v Aitken 1992 (2) ZLR 84 (S); S v Ndlovu 2001 (2) ZLR 261 (H). These factors include, inter alia, the seriousness of the offence; the likelihood of absconding; the likelihood of interfering with the evidence; or to commit further offences among other factors. The court should, in assessing those factors strike a balance between the interest of justice and the liberty of the accused. The onus is on the applicant to show, on a balance of probability, that she /he is a suitable candidate for bail.

While it is accepted that the applicants are facing serious offences, that, on its own, would not persuade me not to admit the applicants to bail. See S v Hussey 1991 (2) ZLR 189 (S) and S v Tsvangirai HH100-03. The likelihood of absconding can be curtailed by appropriate bail conditions.

The applicants have been in custody for about four months and I believe that investigations should be complete by now. The failure by the police to recover the weapon allegedly used in the commission of the offence, or to apprehend the alleged accomplices, cannot be a basis to deny the applicants bail.  Bail, by its nature, is not punitive and continued incarceration of the applicants would not, in my view, help police investigations. I am not persuaded, in the absence of objective facts that the fear by the State that the applicants would commit further offences is well-founded.

Bail re: Approach iro Accomplices, Co-Accused Persons, Gender Considerations & the Principle of Equality of Treatment

It has been submitted that the State case is very strong.

I, however, believe that this is so only in respect of the first applicant, William Charamba. The complainant in Count 2, Zivanai Guvheya, did not identify any of the applicants and all the property taken from him was not recovered. In fact, in Count 2 there is no evidence at all linking the applicants to that offence except on the basis that they are suspects in Count 1. However, in respect of Count 1, Precious Bangura, in her statement, implicated the first applicant, William Charamba, whom she knew as a local resident of the area and a traditional healer. She said that a day before the commission of the offence she had spent the afternoon playing a game of cards with the first applicant. During the robbery, she said that out of the four culprits she was only able to identify the first applicant because there was some light they were using in the shop (a torch) and that the torch, at some stage, flashed onto the first applicant's face. She said she was able to clearly see the first applicant's face and that he was a person very familiar to her. Precious Bangura said the first applicant, at all material times, remained behind the other three assailants, hiding his face, but she was able to see the first applicant and identify him. Prima facie, there is evidence linking the first applicant to Count 1 and the State case in that regard is strong. The complainants, in Count 1, are very young children who are vulnerable and susceptible to intimidation. To that extent, therefore, the fear that the first applicant who was allegedly identified in Count 1 by Precious Bangura may intimidate her and interfere with the interests of justice is well founded.

The same cannot be said of the second applicant, Clever Madzanga.

Generally, jointly charged accused persons should, as a matter of principle, be treated equally. They may, however, be treated differently if there is some justification, either in respect of their personal circumstances or in the manner each individual contributed in the commission of the alleged offence.  See S v Lotriet and Anor 2001 (2) ZLR 225 (H). In casu, the State case is only strong in respect of the first applicant and it is in respect of the first applicant that the administration of justice would be compromised if he is released on bail at this stage.

In this circumstance, the application for bail pending trial in respect of the first applicant, William Charamba, is dismissed.

The second applicant, Clever Madzanga's application for bail pending trial is hereby granted. Bail is granted on the following conditions in respect of the second applicant -

(i) That the second applicant deposits the sum of US$100= with the Clerk of Court Karoi.

(ii) That the second applicant shall reside at Plot No.9 Parental Farm, Tengwe until the matter is finalized.

(iii) That the second applicant shall report once every Friday at Tengwe Police Station between 6am and 6pm.

(iv) The second applicant should not interfere with witnesses in the matter.

MAWADZE J:  Both applicants are being charged with two counts of robbery committed in aggravating circumstances as defined in s 126 of the Criminal Law (Codification and Reform Act) [Cap 9:23].

            The applicants are denying the allegations and any involvement in the commission of the alleged offences.  Both applicants were arraigned before in Karoi Magistrate on 19 April 2010 and they have been in custody to date, a period of about four months.  The applicants are seeking bail pending trial since they are facing specified offences.  The application is opposed.

            The request for remand form 242 outlines in brief the allegations being made against both applicants which can be summarized as follows:-

It is alleged that on 8 April 2010 at about 0200 hours the two applicants in the company of two other unknown accomplices who are still at large proceeded to Tengwe Shopping Centre in the Makonde area armed with a firearm.  It is alleged that two of them were in army uniform.  In count 1  it is alleged that they approached a shop belonging to Bangura and confronted two little girls Precious Bangura aged 15 years and Poshia Bangura aged 8 years.  The two girls were the shop keepers selling liquor and other groceries and were about to close the shop when they were confronted by the applicants and the alleged accomplices who demanded cash threatening to shoot the two girls.  They forcibly took US$37.00 consisting of the day's whole takings and all groceries in the shop.  They proceeded to lock the shop from outside leaving the two girls trapped inside the shop.  It is alleged that thereafter they proceeded in count 2  to Magomo shop at the same business centre still armed.  Zivanai Guvheya the shop keeper had retired to bed inside the shop when the applicants and the accomplices stormed into the shop demanding cash.  They forcibly took US$48.00 and various groceries.  In both counts the applicants and the accomplices took property valued at US$278.00 of which nothing was recovered.

            The applicants submitted that they are proper candidates for bail.  The first applicant William Charamba is 30 years old and a traditional healer (popularly known in shona as tsikamutanda).  He resides with his family at No 407 Chikonohono Township in Chinhoyi.  The second applicant Clever Madzanga is 38 years old and resides at plot No 9 Parental Farm in Tengwe area where he is engaged in farming

            The following reasons were given by both applicants on why they should both be admitted to bail pending trial;

a)      that they are denying the allegations and that the presumption of innocence operates in their favour.

 

b)      that the state case (against them) is very weak as investigations which are now complete failed to link both of them in any manner to the commission of both offences as none of the applicants was found in possession of the stolen property or the fire arm allegedly used in the commission of the offences.

 

c)      that they have not exhibited any inclination to interfere with witnesses or investigations and are willing to abide by any bail conditions imposed by the court.

 

d)     that both applicants are family men of fixed abode without any travel documents hence would not jeopardize the interests or justice by absconding as chances of them being convicted of these offences are virtually non existent.

 

e)      that the claim that they will commit further similar offences if released on bail is unfounded as both applicants have no such history and are not facing any other charges.

 

f)       that investigations were due to be completed by 10 May, some two months ago and that applicants have been in custody for about 4 months.

 

The respondent strongly opposed this application.  An affidavit filed by Detective

Sergeant Collen Zimbudzi outlines the reasons why applicants should not be admitted to bail.  In brief the respondent submitted the following;

  1. that applicants are facing very serious offences of robbery committed in aggravating circumstances as they were allegedly armed.  Consequently applicants if convicted would be visited with lengthy custodial sentences as the maximum penalty provided for is life imprisonment.  In the circumstances the risk of absconding is very high.

 

  1. that the fire arm used in the commission of the offences was not recovered and that the two other accomplices are at large.  The fear therefore is that both applicants would use the firearm to commit further offences and team up with the alleged accomplices still at large.
  2. that the state case is very strong and chances of securing a conviction in respect of both applicants are very high as both applicants were identified by the complainants.

 

  1. that applicants are likely to interfere with the interests of justice if released on bail as the stolen property was not recovered.

 

  1. that the victims in count 1 are very young children who are susceptible to interference and intimidation by applicants if released on bail.

 

  1. that the applicants have been uncooperative with the Police investigations because upon  arrest they implicated two serving members of the Zimbabwe National Army based at 2:3 Infantry battalion one Bigboy Chihambakwe and Calvin Zivanai as their accomplices.  However further investigations revealed that both applicants were falsely implicating the two soldiers.  The applicants are therefore viewed as being keen to put police a wild goose chase and in the process conceal the real identity of their accomplices for sinister motives.  Both applicants have however denied implicating any person.  In fact they submitted that such a suggestion in weird as they themselves are denying the charges.

 

This court has pronounced on a number of occasions the factors to be considered in an application for bail pending trial and how those factors should be assessed  See:  Attorney General v Phiri 1987 (2) ZLR 33 (H);  S v Aitken 1992 (2)  ZLR 84 (S); S v Ndlovu 2001 (2) ZLR 261 (H).  These factors include inter alia the seriousness of the offence, the likelihood of absconding, the likelihood of interfering with the evidence or to commit further offences among other factors.  The court should, in assessing those factors strike a balance between the interest of justice and the liberty of the accused.  The onus is on the applicant to show on a balance of probability that she /he is a suitable candidate for bail.

While it is accepted that the applicants are facing serious offences, that on its own would not persuade me not to admit applicants to bail.  See  S v Hussey 1991 (2) ZLR 189 (S) and S v Tsvangirai HH 100-03.  The likelihood of absconding can be curtailed by appropriate bail conditions.

The applicants have been in custody for about 4 months and I believe that investigations should be complete by now.  The failure by the police to recover the weapon allegedly used in the commission of the offence or to apprehend the alleged accomplices can not be a basis to deny applicants bail.  Bail by its nature is not punitive and continued incarceration of the applicants would not in my view help police investigations.  I am not persuaded, in the obscene of objective facts that the fear by the state that applicants would commit further offences is well founded.

It has been submitted that the state case is very strong.  I however believe that this is so only in respect of the first applicant William Charamba.  The complainant in count 2 Zivanai Guvheya did not identify any of the applicants and all property taken from him was not recovered.  In fact in count 2 there is no evidence at all linking the applicants to that offence except on the basis that they are suspects in count 1.  However in respect of count 1 Precious Bangura in her statement implicated the first applicant William Charamba whom she knew as a local resident of the area and a traditional healer.  She said that a day before the commission of the offence she had spent the afternoon playing a game of cards with the first applicant.  During the robbery she said  that out of the four culprits she was only able to identify first applicant because there was some light they were using in the shop (a torch) and that the torch at some stage flashed on to first applicant's face.  She said she was able to clearly see first applicant's face and that he was a person very familiar to her.

Precious Bangura said first applicant at all material times remained behind the other 3 assailants hiding his face but she was able to see first applicant and identify him.  Prima facie there is evidence linking first applicant to count 1 and the state case in that regard is strong.  The complainants in count 1 are very young children who are vulnerable and susceptible to intimidation.  To that extent therefore the fear that first applicant who was allegedly identified in count 1 by Precious Bangura may intimidate her and interfere with the interests of justice is well founded.  The same cannot be said of the second applicant Clever Madzanga.

      Generally jointly charged accused persons should as a matter of principle be treated equally.  They may however be treated differently if there is some justification either in respect of their personal circumstances or in the manner each individual contributed in the commission of the alleged offence.  See S v Lotriet and Anor 2001 (2) ZLR 225 (H).  In casu the state case is only strong in respect of the first applicant and it is in respect of the first applicant that the administration of justice would be compromised if he is released on bail at this stage.

In this circumstance, the application for bail pending trial in respect of the first applicant William Charamba is dismissed.

The second applicant Clever Madzanga's application for bail pending trial is hereby granted.  Bail is granted on the following conditions in respect of the second applicant;

1)                  That the second applicant deposits the sum of US$100.00 with the Clerk of Court Karoi.

2)                  That the second applicant shall reside at Plot No 9 Parental Farm, Tengwe until the matter is finalized.

3)                  That the second applicant shall report once every Friday at Tengwe Police Station between 6am and 6pm.

4)                  The second applicant should not interfere with witnesses in the matter.

 

 

 

 

 

 

 

Mapaya and Partners, applicants' legal practitioners

Attorney General's Office, respondent's legal practitioners
Back Main menu

Categories

Back to top