Christopher Dube v The State

### Preamble
1
HB 213/22
HCB 253/22
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CHRISTOPHER DUBE

Versus

THE STATE

IN THE HIGH COURT OF ZIMBABWE

MAKONESE J

BULAWAYO 26 JULY AND 4 AUGUST 2022

Bail Application

T. Dube for the applicant

N. Katurura,for the respondent

MAKONESE J:  This is an application for bail pending trial. Applicant is facing a charge of unlawful possession of pangolin scales in contravention of section 45(1) of the Parks and Wildlife Act as read with section 128 of the Parks and Wildlife Act (Chapter 20:14). Applicant denies the allegations. The application is opposed.

Factual Background

The State alleges that on the 22nd June 2022 Parks investigations officers received information that the accused person was in possession of pangolin scales at Stand number 133, village 2 Famona area, Inyathi. A team comprising of Parks and investigations officers and detectives from Criminal Investigations Department and Minerals Flora and Fauna Inyathi, Base was set up. They proceeded to the said area. The team waylaid the accused person at stand number 133 Inyathi. They observed the accused person coming out of the yard. He was with one Julious Ncube. The team followed them. After about 100 meters the team stopped the two accused persons. Applicant was carrying a green satchel. The police officers introduced themselves and asked to conduct a search. The police officers conducted a quick search. They recovered 203 pangolin scales. The detectives requested for a permit authorising the accused persons to possess the pangolin scales. Applicant and his co-accused failed to produce the permit. They were immediately arrested. Applicant was interviewed upon arrest. He implicated his co-accused as the owner of the pangolin scales. The pangolin scales were weighed in the presence of the accused persons. The scales weighed 1, 8 kilograms. The total value of the   pangolin scales was placed at $ZWL 714 560.00.

Submissions by the Applicant

Applicant avers that he is a suitable candidate for bail. In his bail statement he states that on the day in question he was on duty at a mine. He was driving a tipper truck carrying gold ore from various artisanal mines to Morven EB2 mine milling site. On his way to the mine, which is after village 2, Famona, he was stopped by certain people. They asked for a lift. They were enroute to village 2. Applicant offered them a ride. Whilst on their way, applicant was asked whether he knew one Julious Ncube. Applicant indicated that he knew him, since he was a well-known traditional healer. They arrived at village 2, Famona. The passengers asked applicant to show them Ncube’s homestead. Upon arrival applicant was asked to call Ncube. The passengers were afraid of dogs. Applicant went into the homestead and called him. While they were walking out of the homestead they were approached by some people who identified themselves as members of the Criminal Investigations Department. They asked to conduct a search. Applicant was surprised to know that the passengers he had carried in his vehicle were members of the Parks and Wildlife investigations unit. The pangolin scales were found in a bag which applicant was carrying. Applicant states that he informed the police officers that the bag belonged to his co- accused. He further avers that he did not know that it contained the pangolin scales. Applicant also states that Ncube never refuted what he was saying. He avers that he was never in possession of pangolin scales as alleged. Applicant states he only directed people who turned out to be Parks and Wildlife investigators to Ncube’s homestead where members of the Criminal Investigations Department had laid an ambush. He avers that he has no knowledge of the pangolin scales that were recovered.

During oral submissions Mr Dube, appearing for the applicant, submitted that applicant had no knowledge about the existence of the pangolin scales. He further explained that applicant was requested by Ncube to carry a green satchel whilst he was trying to wear his jacket. This satchel belonged to Ncube.

Submissions by the State

The state opposed this application on the basis there are compelling reasons warranting the continued detention of the applicant.  Applicant is facing a very serious offence. He is a flight risk. The state avers that the investigating officer states in his affidavit that applicant was found in possession of the pangolin scales. There is a strong prima facie case against the applicant.  The state submits that there are high chances that applicant will be convicted and sentenced to a lengthy term imprisonment, which is sufficient inducement for him to abscond if granted bail.

Mr Katurura, appearing for the respondent, argued that applicant failed to tender an affidavit by Julious Ncube confirming that he is the owner of the pangolin scales. Further, the accused’s version is so improbable that no right thinking person can believe applicant’s story.

Analysis of the law

The law relating to bail pending trial is now well established in our jurisdiction. Section 50(1) (d) of the Constitution provides that a person arrested or detained must be released unconditionally or on reasonable conditions, pending a charge or trial, unless there are compelling reasons justifying their continued detention.

Section 117 of the Criminal Procedure and Evidence Act (Chapter 9:07) establishes a general entitlement to bail unless the court finds that it is in the interests of justice that applicant be detained in custody pending trial. The provision states as follows:

“ A person who is in custody in respect of an offence is entitled to be released on bail at any time after he/she has appeared in court on a charge and before sentence is imposed, unless the court finds that it is on the interests of justice that he/she should be detained in custody.”

The courts must grant bail where possible and should lean in favour of the liberty of the applicant provided that the interests of justice will not be prejudiced. See: S v Biti 2002 (1) ZLR 115(H).  In an application for bail, the court must strike a balance between the interests of justice and the liberty of an accused person.

In this particular case, applicant was found in physical possession of the pangolin scales. The state has a strong prima facie case against the applicant. Applicant must rebut the allegations and show that he should be granted bail. Applicant has not proffered a reasonable and probable defence that is recognized at law. Julious Ncube has not tendered into the record an affidavit confirming that he is the owner of the scales. Applicant merely made a bald statement that the scales belonged to Julious Ncube and that he is not guilty of the offence. It is desirable for an applicant to disclose his defence and not merely make unsubstantiated allegations. See S v Ndhlovu 2001 (2) ZLR 261 (H).

In assessing granting bail in this matter the court must take into consideration that applicant was found in physical possession of the pangolin scales. The state has raised a strong prima facie case against the applicant. Applicant simply made a bald and bare denial of the allegations. He is facing a very serious charge. In the event of a conviction applicant faces a lengthy custodial sentence. Where a person is facing a serious charge which might lead to a lengthy incarceration on conviction that person may be tempted to abscond. See: S v Chiadzwa 1988 (2) ZLR 19 (S).

For these reasons, the application for bail pending trial is hereby dismissed.

Ncube and Partners, applicant’s legal practitioners

National Prosecuting Authority, respondent’s legal practitioners