Naphitaly Longwani v The State

### Preamble
1
HB 203./20
HCB 250/20
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NAPHITALY LONGWANI

Versus

THE STATE

IN THE HIGH COURT OF ZIMBABWE

MAKONESE J

BULAWAYO 1 & 24 SEPTEMBER 2020

Bail Application

F Nyamayaro for the applicant

K Jaravaza   for the respondent

MAKONESE J:	This is an application for bail pending trial.  The applicant Naphitaly Longwani, a Zambian national is jointly charged with one Bhekumuzi Dube, a Zimbabwea national.  The duo were arrested and initially charged with robbery committed in aggravating circumstances as defined in section 126 (1) of the Criminal law (Codification and Reform) Act (Chapter 9:23).  The state has indicated its intention to drop the robbery charge.  The state has indicated that an amendment to the charge has been made and the applicant is now facing a charge of theft of a motor vehicle.  The state is opposing the application for bail pending trial.

Factual background

On the 11th of July 2020 the accused drove through Beitbridge Border Post in a Toyota Hilux, double cab, bearing South African registration plates.  The applicant was in the company of Bhekimuzi Dube.  The applicant applied for a Temporary Import Permit on the Zimbabwean side of the border.  The applicant indicated that he was the driver of the motor vehicle.  It has been established that the said motor vehicle was stolen from its owner in a robbery at gun point in Hilbrow, Johannesburg, South Africa on the 10th July 2020.  It is common cause that the applicant was found in possession of the stolen motor vehicle two days after the robbery and theft of the motor vehicle.  Applicant avers in his bail statement that on the day of the robbery he was not in South Africa. He was in Zimbabwe.  He alleges that copies of his passport show that he legally entered Zimbabwe on the 12th June 2020 and was in the country until his arrest in July 2020.  The applicant points out that his co-accused has since been released on bail.  The applicant does not explain his possession of a stolen motor vehicle.  The applicant does not explain why he applied for a Temporary Import Permit for the vehicle and does not disclose the owner of the vehicle.

In making a determination on whether or not the applicant is a suitable candidate for bail the court shall take into account the fact that theft is a continuing offence.  Theft of a motor vehicle is specified in paragraph 5 Part II of the Third Schedule to the Criminal procedure and Evidence Act (Chapter 9:07).

The accused is facing a charge on a specified offence. He bears the onus to show that there are exceptional circumstances in the interests of justice for him to be released on bail pending his trial. Section 117 (5) (b) of the Criminal Procedure and Evidence Act provides that where an accused is charged of an offence falling under Part II of the 3rd Schedule, of the  Criminal Procedure & Evidence Act the judge or magistrate shall release him on bail if he adduces evidence which satisfies the court that the interests of justice permit his release.

The accused has tendered a bare denial and has not explained his possession of a motor vehicle that was stolen in a robbery.  Two days after the alleged robbery, the accused entered Zimbabwe from South Africa with the stolen vehicle.  He declared on the Temporary Import Permit that he is the driver of such vehicle.  It is not in dispute that accused declared on the Temporary Import Permit that the motor vehicle was in transit to Zambia.  The applicant is the holder of a Zambian passport.  The accused has no ties to Zimbabwe.  Accused’s attempt to establish some link with Zimbabwean nationals further complicates the matter.  In an affidavit deposed by Energy Muzanenhamo on the 26th July 2020, the respondent states that the accused is a relative he has known for about 7 years.  The deponent further declares that if granted bail the applicant would be residing at 26008 Cowdray Park, Bulawayo.  This affidavit was inexplicably replaced by another affidavit sworn by another affidavit sworn to by one Hardlife Steve Makwarimba.  In this new affidavit the deponent says that he has known the applicant for 3 years.  The affidavit further indicates that if granted bail, the applicant would be residing at stand number 400, Goromonzi Township, Goromonzi.  No reasonable explanation has been given by the applicant for the replacement of the affidavit.  The court has no doubt that the applicant is shifting goal posts because he has no fixed abode in Zimbabwe.  There is simply no guarantee that if granted bail, the accused would not abscond to avoid standing trial.

In paragraph 6.3 of his bail statement the applicant alleges that he found himself in the stolen vehicle because he had been sent to his co-accused to pick up some parcel by his cousin Eddie Banda.  In my view, the explanation given the accused on how he was found in possession of the vehicle sounds hollow.  The fact that the applicant completed the Temporary Import Permit as the driver of the vehicle puts paid to the assertion that applicant knows nothing about the importation of the vehicle in Zimbabwe.

It is clear that there are compelling reasons for denying the application for bail pending trial.  On the 10th July 2020, the complainant lost his motor vehicle in a robbery in South Africa.  On the 11th July 2020 the applicant was at the border post at Beitbridge clearing the motor vehicle in his name.  Noteworthy is the fact that the applicant gave a South African address.  The motor vehicle was being exported to Zambia, and Zimbabwe was being used as a transit point.  The state has a prima facie case against the applicant.  The strength of the state case and the likelihood of a conviction and a lengthy prison sentence is sufficient inducement for the applicant to abscond in order to avoid trial.

In the circumstances, this court finds that the accused has not made a proper case for his release on bail.  The applicant is a flight risk.  The fundamental principle governing the court’s approach to application for bail is that of upholding the interests of justice while at the same time safeguarding the liberty of the individual.  The courts will lean in favour of the liberty of the accused where this is appropriate.  See  ; S v Hudson 1980 (4) SA 145 and S v Chiadzwa 1988 (2) ZLR 19.

For the foregoing reasons I find that the application for bail pending trial is not merited.

Accordingly, it is ordered that the application be and is hereby dismissed.

Farai Nyamayaro Law Chambers c/o Mutuso Taruvinga & Mhiribidi, applicant’s legal practitioners

National Prosecuting Authority, state’s legal practitioners