Joseph Ndlovu v The State

### Preamble
1
HB 149/21
HCB 214/21
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JOSEPH NDLOVU

Versus

THE STATE

IN THE HIGH COURT OF ZIMBABWE

DUBE-BANDA J

BULAWAYO 4 AUGUST 2021 & 11 AUGUST 2021

Application for bail pending trial

T. Khumalo, for the applicant

T.M. Nyoni, for the respondent

DUBE-BANDA J: This is an application for bail pending trial. Applicant is being 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 26 March 2021, applicant in the company of other accomplices used violence, or threats of immediate violence upon one Zenzo Proud Nkomo to relinquish control over 200 kgs of pregnant gold carbons and one 303 rifle, the property of Lone Mine.

The applicant chose to bring his application for bail by means of a bail statement. The applicant advanced his case in the bail statement on the following lines. He categorically denied any involvement in the crime that he is charged with. He avers that he was not party to the alleged offences and was never at the Lone Mine i.e. scene of crime. He never teamed up with the other six alleged accomplices. He first met the other four alleged accomplices upon arrest for this case. He knows the other two alleged accomplices as he once worked with them at Freda Mine. He denies ever leading the police to the recovery of a 303 rifle as alleged. He avers that at the time of his arrest, the 303 fire arm had already been recovered by the police. Again, it is contended that two of the applicant’s accomplices   have been released on bail, therefore applicant is entitled to equal treatment and to be released on bail like the other accused who have been so released.

In its opposition to the release of the applicant on bail, the State placed its reliance on an affidavit deposed to by the investigating officer. The State contends that applicant is a flight risk. In his affidavit the investigating officer avers that police investigations following the arrest of one Innocent Nkona led to the arrest of the applicant. Put simple, the averment is that Innocent Nkona implicated the applicant in the commission of the crime of robbery. The investigating officer avers that he has evidence that applicant led his alleged accomplices to the scene of robbery, i.e. the Lone Mine. He was armed. Upon arrest it is contended that there is evidence that he made indications which led to the recovery of the 303 rifle, stolen at the Mine. The State concedes that two alleged accomplices, i.e. Ngonidzashe Msipa and Reilly St Paul Lansbery have been released on bail. In respect of the applicant it is argued that the State has a strong prima facie case against him, and that if released on bail he will abscond and not stand his trial.

It is important to highlight that applicant is facing a 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 115C (2) (a)(ii) (A) Criminal Procedure and Evidence 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 involving the use of a firearm   is lifted a bit higher by the legislature. This is what the applicant has to contend with. For him to discharge such a burden of proof, he must adduce evidence before court, i.e. oral evidence or by affidavit.

When one speaks of the need to discharge the burden of proof, it immediately becomes clear that there is an evidentiary burden that must be met. The standard of proof required from the applicants to establish that it is in the interests of justice that he be released on bail is on a balance of probabilities. Such burden cannot be discharged by submissions of law contained in a bail statement.  Applicant must adduce evidence. The evidence must show that it is in the interests of justice that he be released on bail. In fact section 117(6) of the Criminal Procedure and Evidence Act [Chapter 9:07] says:

Notwithstanding any provision of this Act, where an accused is charged with an offence referred to in—

Part I of the Third Schedule, the judge or (subject to proviso (iii) to section 116) the magistrate hearing the matter shall order that the accused be detained in custody until he or she is dealt with in accordance with the law, unless the accused, having been given a reasonable opportunity to do so, adduces evidence which satisfies the judge or magistrate that exceptional circumstances exist which in the interests of justice permit his or her release.

Part II of the Third Schedule, the judge or (subject to proviso (iii) to section 116) the magistrate hearing the matter shall order that the accused be detained in custody until he or she is dealt with in accordance with the law, unless the accused, having been given a reasonable opportunity to do so, adduces evidence which satisfies the judge or magistrate that the interests of justice permit his or her release. (My emphasis).

In casu, applicant neither testified nor filed an affidavit in support of his application. There is no evidence before court, but only detailed submissions of law contained in the bail statement. It is important to note that in such a case the issue of bail turns on whether the applicant has discharged the burden of proof placed upon him by legislation.

Again, the bail statement itself is not in substantial compliance with rule 90(4) of the High Court Rules, 2021, in that the court by which and the date on which the applicant was last remanded is not given. The criminal record book number is not given. The police criminal record book number is not given. The name of the police officer in charge of investigations is not given. The name of the police station is not given. It is important in such a bail application that there be compliance with rule 90(4), to enable this court to carefully consider the competing interests, on one hand the liberty of the applicant, and on the other hand the interests of society and the proper administration of justice. For the court to discharge such a function, all the relevant material facts required in terms of rule 90(4) of the Rules must be explicitly and succinctly provided in the bail statement. These are matters of substance and not form. The court may then, with all the material facts and evidence before it, perform its judicial function.

However, on the facts of this case, factoring into the equation the degree of compliance with the rule, I condone the noncompliance in terms of rule 90(3) of the Rules, and then proceed to consider the merits of this application.  See: Goremusandu & others v The State HB 142/21.

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 implicated by his alleged accomplices.  The investigating officer avers that he has evidence that applicant led his alleged accomplices to the scene of robbery, i.e. the Lone Mine. He was armed with a fire arm. Upon arrest it is contended that there is evidence that he made indications which led to the recovery of the 303 rifle. This 303 rifle was stolen from the Lone Mine.

Applicant contends that two of his alleged accomplices have been released on bail pending trial. The fact that these two alleged accomplices are jointly charged with the applicant is not enough. I take the view that in a case where the burden of proof is on the applicant, he must show, by adducing evidence that he is similarly situated with the released accomplices. That their circumstances are the same. That like the released accomplices he is not a flight risk. That like the released accomplices the State has no strong prima facie case against him. It is woefully inadequate to merely submit that “since the other two have been released, I must also be released.” Therefore, the release on bail of the two accomplices is not a credit entry to the applicant’s case. Is just a neutral factor. Nothing turns on it.

In all the circumstances of this case I accept the evidence given by the investigating officer for the purposes of determining this bail application. It is not controverted. 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 fire arm was 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 applicant. 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). Furthermore, the applicant is not only a flight risk but his 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 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 considered that the bail statement itself is not in substantial compliance with rule 90(4) of the High Court Rules, 2021; and that applicant has not adduced evidence in support of this bail application. 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 on 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 applicant has not discharged the burden of showing that it is in the interests of justice that he be released on bail pending trial.

In the circumstances, the bail application is hereby dismissed.

Mlweli Ndlovu and Associates, applicant’s legal practitioners

National Prosecuting Authority, respondent’s legal practitioners