Jonathan Mbambo v The State

### Preamble
1
HB 139/21
HCB 190/21
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JONATHAN MBAMBO

Versus

THE STATE

IN THE HIGH COURT OF ZIMBABWE

DUBE-BANDA J

BULAWAYO 16 JULY 2021 & 22 JULY 2021

Bail Application pending trial

V. Ndlovu, for the applicant

K. Jaravaza, for the respondent

DUBE-BANDA J: 	This is an application for bail pending trial. Applicant is charged with the crime of robbery as defined in section 126 of the Criminal Law [Codification and Reform] Act [Chapter 9:23]. It being alleged that on the 14 June 2021, at about 23 45 hours, the applicant in the company two persons still at large approached the complainant who had parked his motor vehicle a Toyota Hilux at Total Garage, in Bulawayo. Applicant and his accomplices are said to have produced a rifle and a pistol which they used to threaten the complainant before pulling him out of the motor vehicle. The assailants drove off leaving the complainant on the ground having sustained injuries. The motor vehicle was abandoned and later recovered. It was recovered on the 15 June 2021, at about 0800 hours.

The applicant chose to bring his application for bail by means of a bail statement and supporting affidavit.  The State responded with an affidavit.  Each side in effect submitted one affidavit. The applicant advanced his case in the bail statement and in his supporting affidavit on the following lines. He categorically denied any involvement in the crime that he is charged with.  He averred that he is a married man. A father of two. No links with the outside world. He had left his car at the scene of crime when he visited his friend. He was arrested when he returned to collect his car. He was then charged with the crime of robbery. In his oral submissions, Mr Ndlovu, counsel for the applicant argued that the State case is weak against the applicant. There is no evidence that the finger prints uplifted in the stolen motor vehicle are those of the applicant. Applicant was not identified as the assailant. He could not have committed two offences i.e. robbery and unlawful entry at two different locations and at the same time. It was contended that it is in the interests of justice that he be admitted to bail pending trial.

In its opposition to the granting of bail, the State placed its reliance on an affidavit deposed to by the investigating officer.  The State contends that applicant is a flight risk and he has a propensity to commit further crimes. It is argued that applicant is clearly linked to the crime of robbery. The stolen vehicle was dusted for finger prints and the prints uplifted matched those of the applicant. Applicant’s motor vehicle was searched and a cellphone belonging to one Michael Sibanda was recovered in the car. A hunt for this Michael Sibanda has revealed that he took his clothes and left his place residence on the 15th June 2021, at 0200 hours. It is contended that applicant faces a separate charge of unlawful entry and theft under CR 198/06/15. Again, it is contended that applicant is facing a serious offence and there is evidence against him and the State has a strong prima facie case against him.  It is contended that the State has a very strong prima facie case against the applicant such that he is likely to be convicted of the crime of robbery. It is argued that considering the penalty that might be imposed on the applicant, if released on bail it might motivate him to abscond trial. It is thus in the interests of justice that applicant remain in custody pending trial.

The applicant is facing a crime referred to in Schedule 3 Part 1 of the Criminal Procedure and Evidence Act [Chapter 9:07], being robbery, involving the use of a firearm. In terms of section 115C (2) (a)(ii) (A) of the Criminal Procedure and Evidence Act [Chapter 9:07] (CP&E Act) applicant bears the burden of showing, on a balance of probabilities, that it is in the interests of justice that he be released on bail. It then follows that the bar for granting bail in the crime of robbery where there has been a use of a firearm is lifted a bit higher by the legislature. This is what the applicant has to contend with.

It is contended for the State that there is a strong prima facie case against the applicant. In the event of a conviction, and the possible penalty, this may motivate applicant to abscond and not stand his trial. The prima facie strength of the state's case against an accused is a factor a court may consider, in determining whether there is a likelihood that that the accused, if released on bail, he or she will attempt to evade his or her trial.  Our courts have over the years accepted that where there is a strong prima facie case against an accused, this is a factor which the court has to take into consideration in deciding whether it is in the interests of justice for an accused to be released on bail. However, this does not mean that the strength of the State's case is the all­ decisive factor. It simply means that it is a factor that has to be considered together with others. What the court is called upon to do is an examination of all the relevant factors, not individually, but as a whole, in determining whether an accused has established that the interests of justice permits his or her release on bail. In the evaluation of the relative strength of the State's case in a bail application, a court must caution itself against making a provisional finding of guilt and turning the hearing into a dress rehearsal for the trial. See: S v Viljoen 2002 (2) SACR 550 (SCA) para 25.

The evidence linking applicant to this crime is that he was arrested at the scene of crime, where it is alleged he had returned to collect his vehicle after the commission of the offence.  The finger prints uplifted from the stolen motor vehicle marched his own finger prints. His answer is that these are mere allegations, and the trial court may well find that the finger prints are actually not his. For the purposes of this application, I accept the evidence of the investigating officer that the recovered stolen motor vehicle was dusted for finger prints and the prints uplifted matched those of the applicant.

In all the circumstances of this case I accept the evidence given by the investigating officer for the purposes of determining this bail application. On the facts placed before court by the respondent, I find that the State has a strong prima facie case against the applicant. Applicant is facing a serious charge of robbery, where a rifle and a pistol were used to subdue the complaint. It is trite that the seriousness of the offence charged standing alone, cannot be a ground to refuse to release an applicant to bail pending trial. This is so, because, no matter the seriousness of the offence, the presumption of innocence still operates in favour of the accused. See: Mlilo v The State HB 49 / 18. There must be something more than the mere seriousness of the offence, for the court to refuse to admit an accused to bail. In S v Acheson 1991 (2) SA 805 Nm, the court said the key consideration is whether or not the accused will return to court if released and ultimately whether he will stand trial. On the facts of this case, if convicted, applicant is most likely to be sentenced to a lengthy custodial term, thus he 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.

Where there is a cognisable indication that an accused person would evade his trial if released from custody, the bail court would be serving the interests of justice by refusing bail. The liberty of an accused person would, in such circumstances have to give-way to the proper administration of justice. See: S v Dial and Another 2013 (2) SACR 665 (GNP). Again, it is contended that applicant faces a separate charge of unlawful entry and theft under CR 198/06/15, and that upon release on bail he will commit further offences. Furthermore, the applicant is not only a flight risk but his release on bail given the serious allegations against him of use of a rifle and a pistol in the 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 determining whether applicant should be released on bail pending trial, I have considered all factors that weigh in his favour as against those that weigh in favour of the State. I have put these factors in a judicial scale and I have come to the conclusion that it is not in the interest of justice to release the applicant to bail pending his trial. He has not discharged the onus on him of showing that it is in the interests of justice that he be released on bail pending trial. There is a likelihood that the applicant will abscond and evade trial.

Disposition

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 to release the applicant on bail pending trial.

In the circumstances, the bail application is hereby dismissed.

Makiya and Partners, applicant’s legal practitioners

National Prosecuting Authority, respondent’s legal practitioners