Jason Max Kokerai Machaya and Chibururu Chisainyerwa v The State

### Preamble
1
HB 302/20
HCB316/20
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JASON MAX KOKERAI MACHAYA

And

CHIBURURU CHISAINYERWA

Versus

THE STATE

IN THE HIGH COURT OF ZIMBABWE

DUBE-BANDA J

BULAWAYO 15 & 24 DECEMBER 2020

Application for bail pending appeal

A. Muchadehama, for the 1st appellant

G. Mapaya, for the 2nd appellant

K. Ndlovu, for the respondent

DUBE-BANDA J: This is an appeal against the refusal to admit the two appellants to bail pending appeal.  The two appellants were arraigned before the Provincial Magistrate’s court, sitting in Gweru, on a charge of criminal abuse of duty as public officers as defined in section 174(1) of the Criminal Law (Codification and Reform) Act [Chapter 9:23]. The allegations against them are briefly as follows: that on a date to the prosecutor unknown, but during the period extending from 2012 to December 2017, at Gokwe Town Council, the appellants’, one or both of them, being public officers in the exercise of their functions as such intentionally acted contrary to or inconsistent with their duties as public officers or omitted to do anything which it was their duty as public officers to do, in that they unlawfully took stands that had been allocated to the Ministry of Local Government, Rural and Urban Development as commonage by Gokwe Town Council and for the purposes  of showing favour to Striations World Marketing Company diverted and offered the said stands to Striations World Marketing Company and later sold the stands to members of the public. Appellants pleaded not guilty, and after a protracted trial, they were both convicted and sentenced to 48 months imprisonment of which 18 months were suspended on the usual conditions.

Aggrieved by both conviction and sentence appellants noted an appeal to this court and such appeal is still pending under cover of case number HCA 90/20.  Appellants now seek to be admitted to bail pending the finalisation of the appeal. The conviction is attacked on twenty-six grounds and the sentence on eight grounds which are all set-out in the notice of appeal.  This is an appeal against the refusal of the provincial magistrate, who presided at the trial of the appellants, to grant them bail pending appeal. In refusing to admit the appellants to bail, the court a quo held that there are no prospects of success on appeal against both conviction and sentence. The court further held that if admitted to bail, the appellants were likely to abscond.

The grounds upon which appellants seek to be released on bail pending appeal are set out in their statement in support of this appeal. In the statement, it is contended that the court a quo erred in holding that there are no prospects of success on appeal against both conviction and sentence, when in fact such prospects exists. It is further contended that the court a quo erred in holding that the appellants were likely to abscond. It is said there was absolutely no basis for such fears regard being made to their past conduct during the trial. It is argued that the sentence imposed on the appellants is unduly harsh, insensitive and unprecedented. It is submitted that the propriety of such sentence must be tested by the superior courts.

It is submitted for the appellants that the question which falls to be determined is whether the decision of the court a quo to refuse to grant the appellants bail, is incorrect. Should this court conclude that the decision is indeed wrong, then it is to be set aside and replaced by a decision, which in the opinion of this court, the court a quo should have given. It is further submitted that this court, in considering this appeal must adopt a liberal approach, i.e. even if it finds that there are no prospects of success on appeal, but were no fears of absconding exists, this court must learn in favour of bail. It is argued that this court must give effect to the fundamental right to liberty, by adopting a liberal approach in considering this appeal.

Mr Ndlovu, counsel for the respondent, submits that a liberal approach, as suggested by counsel for the appellants, is inconsistent with bail pending appeal. It is submitted that the appellants have lost the benefit of the presumption of innocence, in that they stand convicted by a court of law. It is argued that a court faced with an application for bail pending appeal must consider the prospects of success on appeal, and whether or not the applicant will abscond thereby defeating the interests of justice. It is further submitted that the slimmer the chances of success the greater the chances of absconding.  It is contended that the prospects of success exists on appeal if the matter is reasonable arguably and not manifestly doomed to failure.

An appeal against the refusal of bail is governed by section 121(5) of the Criminal Procedure and Evidence Act [Chapter 9:07], which provides that: “A judge who hears an appeal in terms of this section may make such order relating to bail or any condition in connection therewith as he considers should have been made by the judge or magistrate whose decision is the subject of the appeal.”(My emphasis).

The approach of a court hearing a bail appeal is trite. In State v Barber1979 (4) SA 218 (0) at 220 E-H the court said;

It is well known that the powers of this court are largely limited where the matter comes before it on appeal and not as a substantive application for bail. This court has to be persuaded that the magistrate exercised the discretion which he has, wrongly. Accordingly, although this court may have a different view, it should not substitute its own view for that of the magistrate because it would be an unfair interference with the magistrate's exercise of his discretion. I think it should be stressed that, no matter what this court's own views are, the real question is whether it can be said that the magistrate who had the discretion to grant bail exercised that discretion wrongly.

The issue now before this court is whether the magistrate misdirected himself in refusing to admit the appellants to bail. See: S v Malunjwa 2003(1) ZLR 275(H); S v Ruturi HH23-03). Put differently, the question that falls for decision in this court is whether, on the facts before it, and the applicable legal principles, the court a quo erred or misdirected itself in refusing to admit the appellants to bail pending appeal. This court shall not, sitting as an appeal court, set aside the decision against which the appeal is brought, unless it is satisfied that the court a quo misdirected itself, in which event it shall give the decision, which in its opinion the lower court should have given.

An application for bail pending appeal is made in terms of s 123 (b) (ii) of the Criminal Procedure and Evidence Act, [Chapter 9:07].  Section 115 C of the Act provides that:-

(2) Where an accused person who is in custody in respect of an offence applies to be admitted to bail-

(a) ………………….

(b) After he or she has been convicted of the offence, he or she shall bear the burden of showing, on a balance of probabilities, that it is in the interests of justice for him or her to be released on bail. (My emphasis).

It will be noted that s 115 C (2) of the Criminal Procedure and Evidence Act [chapter 9:07], saddles a convict with the onus of showing on a balance of probabilities that it is in the interests of justice for him to be released on bail at this stage. As was highlighted in Manyange v The State HH 1-2003, there is a clear distinction between the principles governing the grant of bail pending trial and those relating to bail pending appeal. In the former situation, the presumption of innocence, which resides within the constitutionally guaranteed right to liberty, operates in favour of granting bail unless there are positive reasons for refusal. In the latter situation, on the other hand, the presumption of innocence is inoperative because the accused is a convicted and sentenced offender. The accused must go further than showing that he has prospects of success on appeal. He must establish that there are positive grounds for granting bail and that the grant will not endanger the interests of justice.  See:  S v Gumbura SC 349/14.

In considering whether it is in the interests of justice to release the appellants on bail pending appeal, the court will be guided by the following principles: prospects of success on appeal; likelihood of abscondment in the light of the gravity of the offence and the sentence imposed; likely delay before the appeal is heard and the right of an individual to liberty. See: S v Dzawo 1998 (1) ZLR 536; S v Bennet 1985 (2) ZLR 205 (HC); S v Ncube & Ors HB 04-03. The court has to factor in all the relevant considerations, and determine whether individually and / or cumulatively they constitute circumstances which would qualify to admit a convicted and sentenced person to bail. It can be said that it would not be in the interests of justice to deny bail pending appeal to an applicant who has demonstrated good prospects of success on appeal. See: S v Kilpin 1978 RLR 282. An applicant who is able to demonstrate on a balance of probabilities that his appeal enjoys good prospects of success is unlikely to abscond and would rather present himself to clear his name. Such person’s right to liberty should be given effect to, this safeguards against the risk of having an otherwise innocent person languish in prison in respect of a case for which he might end up being cleared by the appeal court leading to an ‘empty victory.’

In an application for bail pending appeal against conviction and sentence in the absence of good prospects of success on appeal may justify refusal of bail. See: S v Beer 1986 (2) SA 307 (SE). Admitting to bail a person who is unable to show a reasonable arguable case or good prospects of success on appeal poses a risk to the interests of justice. Such a person may be refused bail at this stage merely because he or she would not have discharged the onus as required by section 115C of the Criminal Procedure and Evidence Act, of showing that it is in the interests of justice for him to be released on bail.

Having regard to all of the foregoing, the central issue for determination in this matter is whether the court a quo erred or misdirected itself in finding that there are no prospects of success on appeal. The test to be applied in this regard is relatively uncomplicated: is the appeal “reasonably arguable and not manifestly doomed to failure”? See: S v Gumbura SC 349/14; State v Hudson 1996 (1) SACR 431 (W). In light of the facts of this case and the legal principles, I now consider the circumstances of each appellant to ascertain whether the court a quo erred or misdirected itself in refusing to admit such appellant to bail pending appeal.

First appellant

It is not in dispute that sometime in August 2012, 1st appellant called and held a meeting with officers from Gokwe Town Council. He arranged the meeting by telephoning a Mr Sithole, the housing officer at Gokwe Town. Five persons attended the meeting, three from council, i.e. Mr Chimbare, town engineer and acting town secretary; Mr Sithole, council housing officer; and Mr Chipfuko, council chairman. 1st and 2nd appellants attended the meeting. 1st appellant requested 1000 stands from council for a National Housing Programme Project. Council indicated that it did not have stands and could therefore not meet the request. 1st appellant then suggested that a layout plan be generated to make stands available. He then requested 2nd appellant to work with the council to generate such a layout plan for the stands. The layout plan was generated and approved by the department of physical planning in Harare. 1st appellant wrote to council urging it to adopt the layout plan. Council then adopted the layout plan. This became Mapfungautsi extension.

Subsequent to the approval and the adoption of the lay out plan, council resolved that the request by the 1st appellant was an individual request, and it could not offer stands to an individual. Council in turn resolved to over the 1000 stands to the Ministry of Local Government, Public Works & National Housing. However, 1st appellant, being the main actor in the whole scheme took possession and control of the 1000 stands meant for the Ministry. However, the 1000 stands remained state land.

1st appellant as chairman of the Provincial Housing Delivery Committee (housing committee) awarded and appointed Striations World Marketing Company (land developer) the tender to service the 1000 Mapfungautsi stands. Christina Chikotera outlined the procedure followed in awarding a tender to a private developer to service state land. The land developer must make an application and must be vetted. Cecelia Chitiyo, the Provincial Administrator for the Midlands Province, testified that at the material time, she was a member of the housing committee. Her evidence is that in awarding a tender to a private developer to service state land, the housing committee will first invite applications from interested persons and the committee will hold a meeting to select the winning contractor. Matilda Manhambo, who was the acting secretary of the housing committee also outlined the procedure of awarding a tender to a private developer to service state land. A director of Striations World Marketing Company, testified that the company was awarded the tender to service Mapfungautsi stands by offer letter signed by the 1st appellant and the Provincial Administrator.

The evidence shows that the tender to service state land must be made public, and interested parties be invited to apply. The housing committee then appoints the winning contractor after satisfying itself that such contractor meets the requirements, i.e. the company has a project proposal, bank statements, company registration documents, ZIMRA tax clearance, has qualified consultants, and earth moving equipment.

The contention by 1st appellant that Striations World Marketing Company made a general application for the whole province, cannot stand on the basis that there is evidence on record that the company made separate applications for the different projects it had been previously awarded. Therefore, it must have made an application for the Mapfungautsi project, and it had to compete with other interested land developers. Striations World Marketing Company did not apply and did not compete with other players in the industry. It was merely handpicked!

To cover up for the handpicking of Striations World Marketing Company, the evidence shows that 1st appellant created a façade of a false meeting, to create a falsehood that the awarding of the tender to Striations World Marketing Company, was done by the housing committee.  The meeting was allegedly held on the 1st July 2013. The members of the housing committee, i.e. the Provincial Administrator-Cecilia Chitiyo; Chief Planning Officer (2nd appellant); and Matilda Manhambo (Secretary of the housing committee) denied having attended such a meeting. Matilda Manhambo, allegedly the minute taker at the meeting, explained the circumstances under which she produced the minutes. This is a meeting that never was. It was merely a false creation of the 1st appellant. This is the meeting that allegedly resolved to give the land development contract to Striations World Marketing Company.

Striations World Marketing Company was awarded a tender to service state land without having made an application and without being vetted by the housing committee. The fake meeting and the false minutes are meant to create a falsehood that the there was a meeting of the housing committee that awarded the tender to Striations World Marketing Company. The evidence shows that the committee did not sit to deliberate on the awarding of the tender to Striations World Marketing Company.

1st appellant generated a letter to the directors of Striations World Marketing Company, allocating the company 1000 stands for servicing in Gokwe Town. The letter contains a falsehood that “as per your request” when in fact the company had made no such request. The letter is co-signed by Mr Peter Mahlathini, who signed on behalf of the Provincial Administrator – Mrs Chitiyo.  The evidence shows that Mr Mahlathini was merely invited to sign a letter which had already been prepared. The letter was part of the scheme to create a semblance of legality to the awarding of the tender to Striations World Marketing Company. 1st appellant was eager to create a semblance of legality because he knew the correct procedure of awarding a contract to service state land. The evidence shows that he participated in the awarding of Lot 73 Umsungwe Block, wherein the correct procedures were followed.  The letter he co-signed in relation to Umsungwe Block, reads in part “after considering the application and the demand for houses in Gweru, the Committee is satisfied that you have the capacity to do the work and has therefore allocated you sixty one stands.” In relation to Mapfungautsi extension, he undermined and bypassed the procedures to show favour to Striations World Marketing Company.

It is common cause that 1st appellant, as Governor and Resident Minister of the Midlands Province at the relevant time, was public officer as defined in section 169 of the Criminal Law (Codification and Reform) Act. In this instance, the 1st appellant’s power came with the office. In view of the established facts, it is clear that 1st appellant used his position and office to award a land development tender to Striations World Marketing Company, without following established procedures, i.e. without any application and without any vetting.  It appears to me that the 1st appellant’s actions falls squarely within the ambit of the offence created by section 174(1) of the Criminal Law (Codification and Reform) Act.

In the absence of evidence to the contrary, in terms of section 174 (2) of the Criminal Law (Codification and Reform) Act, the evidence on record shows that the appellant, being a public officer, made a decision to subvert and undermine the tender procedures, and award the land development tender to Striations World Marketing Company, for the purposes of showing favour to such company. I take the view that, on the evidence on record, 1st appellant has no good prospects of success on appeal against conviction.

1st appellant appeals the sentence of the court a quo. It is argued that the sentence imposed on the appellants is duly harsh, insensitive and unprecedented. It is submitted that the propriety of such sentence must be tested by the superior courts. In considering whether this aspect of the appeal has good prospects of success, I factor into the equation the fact that in every appeal against sentence the court hearing the appeal should be guided by the principle that punishment is pre-eminently a matter for the discretion of the trial court. The appeal court should be careful not to erode such discretion, hence the further principle that the sentence should be altered only if the discretion had not been judicially or properly exercised. See: S v Malgas 2001(1) SACR 469 (SCA) 2001(2) SA 1222; 2001(3) ALL SA 220.

The 1st appellant is Minister of Government, reporting direct to the President of the Republic. He holds a very critical, influential and important position in the government and the country. His conduct in executing his ministerial functions must be beyond reproach, he must not show favour or disfavour to any individual or entity. The appeal court may well find that the mitigating factors in his favour pale into insignificance when consideration is given to the nature of the crime, his position in government and the country. In deciding this case, I also take as a factor that the 1st appellant has been convicted of a serious offence and that in the event his appeal against conviction fails, he cannot easily avoid a prison term. I agree with the court a quo, that upon 1st appellant being admitted to bail there is a risk of absconding. See: S v Myers 1991 (1) SACR 383 (C).

In consideration of the facts and submissions in support and against the granting of bail, viewed individually and holistically, I take the view that 1st appellant did not discharge the onus resting upon him of showing that it would be in the interests of justice to release him on bail at this stage. The 1st appellant has not proffered any positive grounds for allowing him to proceed on bail. Moreover, he has failed to satisfactorily demonstrate his prospects of success on appeal. In my view, the prospect of a prison term, coupled with his fresh experience of post-trial incarceration, affords abundant incentive for him to abscond. In all the circumstances, I am amply satisfied that the court a quo did not misdirect itself when it refused to admit 1st appellant to bail. See: S v Gumbura SC 349/14.

Furthermore, this court is sitting as an appeal court, it can only set aside the decision of the court a quo if there is a legal basis to do so. On the facts of this case, this court is not persuaded that the magistrate exercised the discretion which she has, wrongly. Even if this court may have a different view, it could not substitute its own discretion for that of the magistrate because it would be an unfair interference with the magistrate's exercise of her discretion. It cannot said on these facts that the magistrate who had the discretion to consider bail, in the first instance exercised that discretion wrongly.

Finally, on the evidence on record, I take the view that the court a quo could not be faulted in finding that the 1st appellant has no good prospects of success on appeal against both conviction and sentence.  The prospects of success and the possibility of abscondment are interconnected.  The less likely the prospects of success, the more the inducement there is on an 1st appellant to abscond. In the circumstances, there is a real likelihood that the 1st appellant will be tempted to abscond and not await to serve the prison term at the conclusion of the appeal. Therefore, his appeal against the refusal of the court a quo to admit him to bail pending appeal, must fail.

2nd appellant

Mr Ndlovu submits that the 2nd appellant’s conviction is based on the doctrine of common purpose. In terms of section 196A of the Criminal Law [Codification and Reform] Act, the doctrine of common purpose is part of our law. See: S v Mgedezi and Others1989 (1) SA 687 (AD) at 705I-706C, S v Safatsa and Others 1988 (1) SA 868 (A), S v Ndebu and Another1986 (2) SA 133 (ZSC). The evidence does not show that there was a prior agreement, expressed or implied, to commit a section 174(1) of the Criminal Law (Codification and Reform) Act offence. In the absence of evidence of a prior agreement, 2nd appellant’s liability would arise from his active association and participation in the criminal design. In this case, the appeal court has to determine, whether 2nd appellant actively associated and participated in a common criminal design, with the requisite blameworthy state of mind.

Mr Ndlovu, submits that 2nd appellant actively associated himself with the 1st appellant’s criminal enterprise. It is contended that the gist of the matter is that 1st appellant irregularly awarded and gave Striations World Marketing Company the tender to service 1000 stands at Gokwe Town and purported that this was a the housing committee decision made at a meeting held on the 1 July 2013, when in fact no such meeting was ever held and the company did not make an application to be awarded the project. It is contended that the central to the appointment of Striations World Marketing Company as the land developer was the layout plan drawn by the 2nd appellant.  However, this argument overlooks the fact that the layout plan was approved by the relevant ministry and adopted by Gokwe Town Council.

2nd appellant was employed as a Provincial Planning Officer for the Midlands Province. He attended the meeting of August 2012, and undertook to prepare a layout plan for the Mapfungautsi project.  He prepared the lay out plan for the project. Following the drawing of the layout plan, it was sent to the Physical Plaining Department Head office for approval. The forwarding of the layout plan was accompanied by a letter from the Department of Physical Plaining, Midlands Province. The author of the letter one V Chebundo, indicated that he was writing on behalf of the 2 appellant. Mr Ndlovu, makes much play about this letter. However, I take the view that there is nothing amiss about this letter.  V. Chebundo wrote the letter on behalf of the 2nd appellant, because the latter was the Provincial Planning Officer for the Midlands Province.

Mr Ndlovu, submits that 2nd appellant was eager to have the project fast tracked and implemented in no time such that the only reasonable inference is that he was in the scheme and was part and parcel of the plan to award the tender to a handpicked developer, who had not made an application and was not vetted. I do not agree. This cannot be the only inference that can be drawn from the proven facts, and the proven facts cannot be said to exclude all other reasonable inferences from them save the one Mr Ndlovu seeks this court to draw. See: R v Blom 1939 AD. It could well be argued that 2nd appellant did no more than what his duties permitted him to do.

In dismissing the application for bail pending appeal, in respect of both appellants the court a quo held that:

The applicants argue that the 1000 stands did not constitute commonage, hence there is no offence. They fell under a misdirection that the offence was founded on establishing that the stands in issue were commonage. This is not an element of the charge in terms of section 174 (1) of the Code. Whatever they choose to call the 1000 stands, commonage or otherwise, the land is state land. The applicants had no business in allocating to Strations in the manner they did.

There is no evidence that the 2nd appellant allocated the 1000 stands to Striations World Marketing Company for servicing. Even the facts that anchor the doctrine of common purpose that is used to hook-in 2nd appellant to the offence, are debatable.  It is correct he attended the meeting of August 2012, it is correct he prepared the lay out plan for the Mapfungautsi extension, it is correct he played an active role in having the layout plan approved by the relevant ministry and later adopted by Gokwe Town Council. It is correct that without the lay out plan 1st appellant would not have allocated Striations World Marketing Company for the tender to service the 1000 stands. However, notwithstanding all this, I take the view that it could be reasonably argued that the 1st did no more than what his office permitted him to do. There might be a suspicion, even a strong one that the 2nd appellant “was in it” as Mr Ndlovu submits. However, strong as it might be, a suspicion is not proof and cannot result in a conviction. I am of the view that the appeal court might well find that 2nd appellant discharged the onus cast on him by section 174 (2) of the Criminal Law (Codification and Reform) Act.

Finally, I take the view that in considering bail pending appeal the court a quo misdirected itself by failing to analyse 2nd appellant’s circumstances and involvement in the offence. The evidence shows that 2nd appellant’s appeal is reasonably arguable and not manifestly doomed to failure. He has a good fighting chance. On the evidence on record, 2nd appellant has discharged the onus of showing that it is in the interests of justice that he be admitted to bail pending appeal. This court is satisfied that the court a quo misdirected itself in refusing to admit the 2nd appeal to bail pending appeal, it shall give a decision, which in its opinion the lower court should have given. The 2nd appellant is indeed a good candidate for admission to bail at this stage, and his appeal against the refusal of the court a quo to admit him to bail pending appeal, must succeed.

Disposition

In the result, I make the following order:

1st appellant - Mr Jason Max Kokerai Machaya’s - appeal must fail and it is accordingly dismissed.

2nd appellant - Chibururu Chisainyerwa’s – appeal succeeds. He is  and  hereby admitted to bail on the following conditions:

He deposits the sum of ZW$50 000.00 bail with the Clerk of Court, Gweru.

He resides at Flat number 9, 3rd Street, Gweru until the appeal pending under cover of case number HCA 90/20 finalised.

He must surrender to the Clerk of Court, Gweru, any travel document or passport in his possession.

He must report to Gweru Central Police Station, once a week on Fridays between 6 a.m. and 6 p. m. until the appeal pending under cover of case number HCA 90/20 finalised.

Mbidzo, Muchadehama & Makoni, 1st appellant’s legal practitioners

Mapaya Law Chambers, 2nd appellant’s legal practitioners

Prosecutor-General’s Office, respondent’s legal practitioners