Candy Moyo and Busani Ndlovu and Prince Moyo v The State

### Preamble
1
HB 270/22
HCB 367/22
XREF FIL 453-55/22
XREF FIL 460-62/22
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CANDY MOYO

And

BUSANI NDLOVU

And

PRINCE MOYO

Versus

THE STATE

IN THE HIGH COURT OF ZIMBABWE

DUBE-BANDA J

BULAWAYO 19 OCTOBER 2022 & 3 NOVEMBER 2022

Application for bail pending trial

A. Ndlovu, for the applicant

N. Katurura, for the respondent

DUBE-BANDA J:

This is an application for bail pending trial. The applicants are being charged with two counts of robbery as defined in section 126 (1) of the Criminal Law [Codification and Reform] Act [Chapter 9:23] (Criminal Code), and one count of unlawful entry into premises as defined in section 131 of the Criminal Code, and one count of theft as defined in section 113(1) (a) of the Criminal Code.

In count one it is alleged that on 11 September 2022 the applicants in the company of some accomplices still at large attacked a security guard at Empire 16 gold mine, Filabusi with stones and forcibly took 400 kilograms of loaded gold carbons. In count four it is alleged that on 1 September 2022 the applicants and other four accomplices still at large armed with a pistol robbed complainant of 100 kilograms of gold loaded carbon.

In count two it is alleged that on 23 August 2022 at Cowslip 37 Gold Mine Empire Filabusi, the applicants in the company of other accomplices still at large unlawfully, intentionally and without authority entered the carbon room. In count three it is alleged that on 23 August 2022 at Cowslip 37 Gold Mine Empire Filabusi the applicants in the company of other accomplices still at large stole 200 kilograms of loaded gold carbons.

In support of their bail application the applicants filed a bail statement and affidavits. It is averred that they did not commit the crimes alleged by the State. They aver that they are neighbours with the complainants hence the issue of identification does not arise as they are well known to the complainants. They also attribute their arrest to some conspiracy between the complainants and a third party who is alleged to be having an adulterous relationship with the estranged wife of the first applicant.  The police are also alleged to be part of a wider conspiracy to implicate the applicants in the commission of these crimes.

The applicants contend that the State has no strong prima facie case against them and if released on bail they will not abscond. It is contended further that seriousness of the offences is not a ground to refuse to release them on bail pending trial. It is argued that the applicants cannot be denied bail on the basis that the police have not accounted for the other accomplices. It is argued further that there is no basis to hold that if admitted to bail the applicants will commit further offences. It is submitted that if released on bail they will not abscond. It was argued that the applicants are good candidates to be released on bail pending trial.

The bail application is opposed. It is contended that the applicants are a flight risk, and that they are likely to interfere with witnesses since they are neighbours. The investigating officer testified and his evidence is that the police investigations led to the arrest of the applicants. Numerous raids were made at a mine they were believed to be staying but with no success since they had fled to different places. Information kept coming about their whereabouts at certain mining locations at Esigodini, Filabusi and Zvishavane and raids were conducted at these mining locations without any success. Until information was received that the first applicant was in Pumula South, Bulawayo and he was then raided and arrested. Investigations further revelled that the second applicant was at a certain mine at Filabusi, raids were carried out thereat. When the police attempted to arrest him he fled, three warning shots were fired in an attempt to arrest him. He managed to escape. The following day a raid was carried out at night where he was believed to be hiding. He was finally arrested with the assistance of the community. The third applicant was pursued where he was hiding at the certain village in Shangani, he managed to escape. He was finally arrested at night at a certain mine in Filabusi.

The officer testified that the investigations showed that the applicants and their accomplices who are still at large were in possession of a fire-arm. It is believed that the firearm is in the possession of one accomplice called Mangena who is still at large. The officer testified that it was very difficult to account for these three applicants as they kept escaping to avoid arrest. The firearm they used in the commission of the offence is still to be recovered. If the applicants are released on bail they will simply join their accomplices who are still at large and commit further offences. The applicants are neighbours of the complainants and if released on bail they will interfere with witnesses and police investigations.   State counsel argued that it was not in the interests of the proper administration of justice to release the applicants on bail pending trial.

It is important to highlight that in count four the applicants facing are crime referred to in Part 1 of Schedule 3 of the Criminal Procedure and Evidence Act [Chapter 9:07], being robbery, involving the use by the accused or any co-perpetrators or participants of a firearm. In terms of section 117(6) of the Criminal Procedure and Evidence Act [Chapter 9:07] the applicants shall be detained in custody until there are dealt with in accordance with the law, unless they adduces evidence which satisfies the court that exceptional circumstances exist which in the interests of justice permit their release.  It then follows that the bar for granting bail in the crime of robbery involving the use of a firearm is lifted higher by the legislature. This is what the applicant have to contend with.

The evidence and the facts of this case show that the applicants were arrested after a long run with the police. Count two and count three were allegedly committed on 23rd August 2022, count four was allegedly committed on the 1st September 2022, while count one was allegedly committed on the 11th September 2022. The arrest of the first applicant was on the 29 September 2022. I accept that after committing counts two and three the applicants were on the run and during that period allegedly committing other serious crimes, i.e. counts one and four. This conduct is indicative of the fact that given a slight opportunity the applicants will abscond.

There are certainly many features in the evidence and facts put up by the State that make out the basis of a strong prima facie case against the applicants. It is contended that at the scene of the crimes the applicants were identified by the complainants as perpetrators of these crimes. For the purposes of this application I accept that indeed they were identified. The applicants are facing very serious crimes. The State has a strong prima facie case against the applicants and upon conviction they are very likely to be sentenced to very long prison terms.

On the evidence, facts and circumstances of this case, I find that the State has a strong prima facie case against the applicants. The applicants are facing very serious charges. If convicted they are most likely going to be sentenced to lengthy custodial terms, thus they will be tempted to abscond and not stand trial. The temptation for the applicants to abscond if granted bail is real. See: S v Jongwe SC 62/2002. If released on bail the applicants will not stand their trial and they will just abscond. Again the applicants are not only a flight risk, but their release on bail given the serious allegations against him of use of a fire arm in the alleged commission of the offence of robbery will undermine the objective and proper functioning of the criminal justice system and the bail institution. The cumulative effect of these facts constitutes a weighty indication that bail should not be granted.

In respect of the one count of robbery where they allegedly used a firearm to subdue their victim, I am of the view that the applicants have failed to show any exceptional circumstances which, in the interests of justice will permit their release on bail. In respect of the other counts i.e. robbery, theft and unlawful entry into premises there are compelling reasons that warrants the continued incarceration of the applicants.  The release of the applicants on bail will prejudice the proper administration of justice. On a conspectus of the facts and all the evidence placed before court, I am of the view that it is not in the interests of justice that applicants be released on bail pending trial.

In the result, the application for bail be and is hereby dismissed and applicants shall remain in custody.

It is so ordered.

Dube and Associates, applicant’s legal practitioners

National Prosecuting Authority, respondent’s legal practitioners