Nhlanhla Mhlanga v The State

### Preamble
1
HB 188/20
HCB 241/20
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NHLANHLA MHLANGA

Versus

THE STATE

HIGH COURT OF ZIMBABWE

DUBE-BANDA J

BULAWAYO, 28 AUGUST AND 10 SEPTEMBER 2020

Application for Bail Pending Trial

Applicant in person

K. Ndlovu, for the respondent

DUBE-BANDA J: This is an application for bail pending trial. Applicant is facing ten counts of contravening section 126 of the Criminal Law Codification and Reform Act [Chapter 9:23]. The allegations are that between the periods extending from 12 July 2019 to 20 August 2020, the applicant embarked on a spree of armed robberies in Bulawayo. It is alleged that he was targeting various taxi operators whom he would rob of cash and other valuables after threatening to shoot them with a pistol. It is alleged that on arrest the police recovered an unregistered FN pistol in his possession. Again, it is alleged that some of the cell phones that were stolen during the robberies were all recovered, either in his possession or through his indications. The bail application is opposed.

The brief allegations against the applicant are as follows; in count one it is alleged that on 12 of July 2019, armed with a pistol, he used violence or threats of immediate violence upon Innocent Tauzeni, and robbed him of a Huawei Y7 cell phone, cash ZAR 3000, RTGS 14-00 and Honda Fit keys. In count two, it is alleged on 12 of July 2019, armed witha pistol, and using the same modus operandi robbed Thulani Ncube of a Huawei cell phone, Mobicel cell phone, cash ZAR500, RTGS54-00 and Honda Fits keys. In count three, it is alleged that on 25 of July 2019, again armed witha pistol and using the same method robbed Bryon Andile Phiriof a Samsung J5 dual sim cell phone, cash RTGS100-00 and Honda Fit keys.  In count four,  it is alleged that on 6 of August 2019, armed with a pistol and using the same modus operandirobbedJustice Mutohorera of cash in the sum of RTGS475-00 and Honda Fit keys. In count five, it is alleged that on 6 of August 2019, armed with a pistol deploying the same strategy robbed Prince Moyo of a Samsung J5 cell phone. In count six it is alleged that on 6 of August 2019, and armed with a pistol using the same modusoperandi robbed Kerina Mutandwa of a Nokia 5 cell phone.

In count seven, it is alleged that on 20 of August 2019, armed with a pistol, used violence or threats of immediate violence upon Shadreck Magadzire, and robbed him of Ktel cell phone, cash RTGS50-00 and Honda Fit keys. In count eight, it is alleged that on 20 of August, and armed with a pistol using the same modus operandi robbedKuthaba Nkosiyabo Nyathiof a Voda cell phone and cash RTGS14-00. In count nine it is alleged that on the 20 of August, and armed with a pistol, robbed Duduzile Moyoof a ZTE L110 cell phone. In count ten, it is alleged that on the 20 of August, and armed with a pistol robbed Never Verenga, and robbed him of an Itel cell phone.

Applicant filed a detailed bail statement and made submissions in this court in support of his bail application. In his bail statement, applicant avers, inter alia that:

I am charged with 12 counts of robbery as defined in section 126 of the Criminal Law [Codification and Reform] Act.

The matter is before the Regional Magistrates’ Courts but they are yet to commence the trial due to my ill-health.

I am denying the allegations levelled against me and state that I never committed the said offences. I was accosted and brutally assaulted by a gang of four in a Toyota Wish vehicle and handed to the police with allegations of robbery levelled against me. Nothing was recovered from me, including that was said to have been used in the alleged robbery. The charges are frivolous and malicious because I never attempted to do so at any event.

The trial which was due to start on 13 January 2020, was not able to start due to my health condition. I have been sent back to Mpilo Hospital in a number of occasions after the end of the industrial action by doctors in January, but I have been unable to get any help there as I have been referred to private laboratories and pharmacies for a number of tests and essential drugs. I have so far failed to raise the required amount in United States dollars to pay for those tests and medication as the state cannot pay for treatment to private laboratories and pharmacies.

The Covid 19 pandemic has made life difficult in prison. I believe further incarceration will endanger my already fragile life.

Crowded prison conditions are a danger to my failing health and there is insufficient food and water and visitations by relatives have stopped due to the pandemic and the supplementary diet provided by relatives has ceased.

As I speak, Bulawayo prison has recorded a number of cases. This disease is real, which the courts should not take lightly in regard to accused persons who are in custody for pending cases as the law presumes people to be innocent until proven guilty.

The accused is a permanent resident of Zimbabwe.

The applicant does not possess any travel document which makes his chances of absconding very slim.

The applicant has no property outside the jurisdiction of this court.

I believe I should be granted bail as my health has been deteriorating and I pray that I should be set free on medical grounds to enable me to access treatment in a conducive environment. Otherwise my demise is inevitable and will not serve the interests of justice.

In his oral submissions, applicant stated that he was arrested in August 2019. He emphasised the fact that he was of ill-health. He seeks to be admitted to bail to enable him to seek medical attention. He is suffering from chest pains and abdominal pains. He says he survives on porridge. He contended that Mpilo Hospital, as a government institution has no facilities and capacity to carry out the medical tests that he is supposed to undergo. Applicant produced his medical cards to show that he is of ill-health.  He denied that the FN pistol was recovered in his possession. He argued that no recoveries of stolen property was found in his possession.

The State opposes the admission of the applicant to bail. It called the testimony of Detective Sergeant Bukhosi Mbekezeli Ncube (D/S Ncube). This witness told the court that he is a police officer attached to the Criminal Investigations Department (C.I.D.) Homicide, and the investigating officer in this case. He testified that sometime in August 2019, the applicant boarded a pirate taxi somewhere in the city centre of Bulawayo en route to a residential suburb called Nketa in Bulawayo. There were three other passengers in the taxi. Upon arrival in Nketa, applicant informed the driver to stop the vehicle as he had arrived at his destination. He got out of the taxi, and pretended to be getting cash from his pocket to pay the fare, when in fact he was pulling out a firearm. He pointed the firearm at the driver and quickly pulled out the ignition keys from the vehicle. He ordered everyone in the vehicle to surrender whatever valuables they had in their possession.

D/S Ncube testified that a female passenger surrendered her cell phone, and one man also surrendered his cell phone to the applicant. The driver and the other male passenger remained unmoved. The applicant threated to shoot unless further valuables were surrendered to him, he then warned that he will count up to five, and if nothing is produced then he will shoot. He counted up to five, but nothing more came out from his victims, he then depressed the firearm trigger, but it did not discharge. One of the victims in the taxi shouted that the firearm was not working, it was a toy-gun. The driver and his passengers quickly jumped out of the car, applicant started running away, they gave chase and he was apprehended. The firearm was taken away from him as well as the cell phones he had stolen. He was taken to Emganwin Police Station, where he was arrested by the police.

This witness testified that applicant suffered injuries in the hands of the people who apprehended him. These are the people he was robbing and it is said members of the public joined in beating-up the applicant. According to this witness the reason for the beating was that he was resisting arrest. Applicant disputed that members of the public joined in, he contended that he was beaten by what he called “a gang of four” i.e. the people he was with in the vehicle. Applicant told the court that as a result of the beating he lost consciousness, and he recovered at the police station, and the police beat him again.  According to D/S Ncube, at the police station applicant was arrested and then takenfor medical treatment at Mpilo Central Hospital, Bulawayo.

D/S Ncube testified that following inquiries, police managed to connect applicant to many other robbery cases.  As a result of investigations, police recovered cell phones applicant had stolen using themodus operand described above.  Some recovered cell phones still had photographs of the individuals they were stolen from, i.e. the victims of the robberies.

Applicant cross-examined this witness, and he asked among others, the following questions:

Q. Where did you find the gun?

A. It was recovered from you by the people who arrested you.

Q. You searched my property, did you find anything linking me to the crime?

A. Nothing. But the gun was found in your possession at arrest.

Q. What is it that you recovered from me that links me to the crimes?

A. You led us to Augustine Dube, we got cell phones from Dube and his wife. They confirmed that you were selling cell phones to them.

According to Mr Ndlovu for the respondent, applicant is charged with serious offences. He made the point that the offence of robbery is specified in the Third Schedule of the Criminal Procedure and Evidence Act [Chapter 9:07]. It was argued that theonus is on the applicant to show that it is in the interests of justice that he be admitted to bail pending trial. It was contended that the State has a prima faciestrong case against the applicant. It was submitted that the cell phones robbed from the complainants were recovered in hispossession, or through his indications. It was argued that on arrest the applicant was in possession of a Huawei cell phone that had been stolen in count number one. Again it was argued that there is evidence linking the applicant to the FN Pistol, which was used in the commission of the robberies. It was argued that the State has a prima facie strong case against the applicant and he was likely to be convicted and to receive a long custodial sentence. It was submitted that the prospects of a very long prison term is likely to tempt applicant to abscond and not stand his trial.

The applicant has been on remand awaiting trial for a period approximating one year. The prosecution submitted that on many occasions the State had summoned all the witnesses with the intention of commencing the trial. On each occasion the trial would be postponed at the instance of the applicant. He would always cite ill health as a basis for seeking a postponement. The court was informed that the matter was postponed to the 30 August 2020, for trial in Regional Court A, Bulawayo.

Section 115C of the Criminal Procedure and Evidence Act [Chapter 9:07] (the Act) shifts the onus to the accused where he is charged with a crime listed in Part I of the Third Schedule to the Act. An accused so charged bears the onus of showing, on a balance of probabilities, that it is in the interests of justice for him to be admitted to bail.  In terms of the Act, robbery involving the use by the accused of a firearmin the crime is listed in Part 1 of the Third Schedule to the Act.Applicant is charged with crimes of robbery were a firearm was used. Therefore his case falls within parameters of section 115C (2)(a) (ii)  which places a burden on an accused person to adduce evidence and satisfy the Court that circumstances exist which would entitle him in the interests of justice to be admitted to bail.

It seems to me that the approach involves a two-stage enquiry.  The applicant for bail is first enjoined to establish and place on record the circumstances that make it in the interests of justice that he be admitted to bail.  Secondly, he is required to prove that such circumstances justify, in the interest of justice, that bail be granted.  It also appears to me that the enquiry relating to the second leg cannot even begin or be engaged unless the first leg has yielded positive results.  See S v Vanqa 2000 (2) SACR 371.

The circumstances presented by the applicant, both in his papers and his address in court can be tabulated as follows:

He is of ill-health, a circumstance warranting him to be admitted to bail to attend specialist treatment as the prison hospitals and Mpilo Hospital in Bulawayo are 
ill-equipped to deal with his medical condition;

he has been referred to private laboratories and pharmacies for a number of tests and essential drugs.

the medical treatment that he receives in prison is and Mpilo Hospital is inadequate;

he denies that he has committed the offence and it is therefore probable that he may be acquitted on the offences he is charged with.

I have carefully considered applicants version and I accept that applicant has tabulated and placed on record circumstances, which if exists, might warrant his admission to bail in the interest of justice. This court must be satisfied that the circumstances as outlined by the applicant indeed exist. If they exist, the second leg of the inquiry is then engaged, whether such circumstances justify, in the interest of justice, that bail be granted.

Applicant argued strongly that he should be admitted to bail on account of ill health. In terms of section 117 (4) (e) of the Criminal Procedure and Evidence Act the health condition of an accused person is a relevant factor to be taken into account when considering bail. According to this empowering provision, in consideringthe issue of bail, the court shall decide the matter by weighing the interests of justice against the right of the accused to his personal freedom and in particular the prejudice he is likely to suffer if he were to be detained in custody, taking into account, where applicable the state of health of the accused.

In considering this matter I factor into the equation the fact that a person in custody is in a vulnerable position. I also factor into the equation that the State is legally and constitutionally bound to provide medical treatment to prisoners who need it. Again, I take the view that a person in custody is entitled to be offered access to medical care. The responsibility of affording him access to medical care rests with those in whose custody he is, i.e. the State. My view is that themere fact that a person in custody is of ill health does not, standing alone, entitle him to be admitted to bail unless there arespecial grounds for doing so.  A court may, amongst other reasons, consider admitting an accused to bail on the grounds of ill-health when his continued stay in prison poses a possibility of a health hazard to others, or when the prison authorities have no medical expertise to treat the ailment afflicting the detained person. The court may also accede to admit an accused person to bail on grounds of ill health, if his medical condition cannot be managed in prison. The court may also consider admitting an accused to bail on health grounds if his condition requires specialist treatment which is not available in prison. Again, I make the observation that a mere allegation or assertion of ill- health will not be sufficient as aspecial circumstance to admit an accused to bail. Medical evidence must be placed before court to show the state of the accused’s health.

In casu, I have perused with care the medical records placed before court by the applicant.I noted that on the 28th January 2020, he was seen at the prison remand clinic, following a complaint of abdominal pains, vomiting and chest pains. The prison remand clinic referred him to Maximum Prison Hospital (Khami) for further management. At the Maximum Prison Hospital, the records show that he was admitted, given medication to stop vomiting, given pain killers and re-hydration fluids.  He was then referred to Mpilo Hospital for further management. On the 31st January 2020, he was seen at Mpilo Hospital as an out-patient, it was found that his chest was clear. He continued complaining of pain in the stomach. On the 10 March 2020 he was seen by a Physician. The Physician found that he had no shortness of breath, no cough, and no diarrhoea. The Physician referred him for an X-Ray test. The results show the flowing: nothing wrong or no disease was found in the liver, gall bladder and biliary tree. Again the spleen, both kidneys, pancreas and para-aortic area were found to be normal. No abdominal mass or ascites seen.Normal urinary bladders. No lymphadenopathy seen.

The physician indicated that there was need to rule out stomach ulcers.  The physician then referred applicant for a pylori test.The results of this test are not in the medical records that the applicant placed before court. This is something that the prison authorities may have to follow up with Mpilo Hospital.

In casu, the first issuefor determination is whether the medical circumstances outlined by applicant indeed exist. For completeness, he tabulated the following circumstances:

He is of ill-health which require specialist treatment which is not available inprison hospitals and Mpilo Hospital, which hospitals are ill-equipped to deal with his medical condition;

he has been referred to private laboratories and pharmacies for a number of tests and essential drugs.

the medical treatment that he receives in prison is and Mpilo Hospital is inadequate;

Applicant’s medical records show that he is of ill health. I say he is ill because he has been to hospitals both in prison and outside prison. However, the records do not show that he has a medical condition that requires specialist treatment, and that such treatment is not available inprison hospitals and Mpilo Hospital. The physician found that he had no shortness of breath, no cough, and no diarrhoea. There is no indication in the medical records placed before court that he was referred to private laboratories and pharmacies for a number of tests and essential drugs. In fact, the records show that he was sent to a specialist, i.e. a Physician, who examined him and then sent him for X-Raysand H. Pylori tests.  The records show that the X-Ray test have been done at Mpilo Hospital and results communicated to the applicant.

Applicant contends that he cannot receive the desired medical attention while in custody. He avers that medical treatment that he receives in prison and Mpilo Hospital is inadequate. His medical cards show that he has been attended to at Mpilo Hospital. The cards do not show that he is suffering a serious condition that requires specialised treatment. The prosecution says there is a hospital in prison and his condition can be managed by that prison hospital. He has been seen at the prison hospitals, Mpilo Hospital causality section, seen by a specialist physician, referred to X-Rays. There is thus nothing before this court, beyond the exaggerated and unsubstantiated claims of the applicant in his written application and oral address, to show that his state of ill health is serious to warrant specialist treatment, private laboratories, pharmacies and a number of tests and essential drugs.

The issue is, does the existence of ill-health per se justify, in the interest of justice, that he be admitted to bail? No doubt his ill-heath is a factor to be taken into account in considering whether to admit him to bail. However, his medical records do not corroborate his version that he requires specialist treatment, private laboratories, pharmacies and a number of tests and essential drugs, which Mpilo Hospital and prisons cannot provide. An allegation of ill-health, without more will not be sufficient for the admission of an accused to bail.

Again applicant appeared in this court and argued his application in person. He painted a rather pathetic picture of himself, as a person who is virtually a vegetable, in contrast I saw a man who does not look ill as he would like this court to believe. I saw a man who could vigorously argue his case. I saw a man who is very tactful. I saw a man who is desirous not to stand his trial.

I also note that at his instance, his trial at the Regional Court has been postponed on numerous occasions.  At every turn he alleged his ill health as a basis for asking for a postponement. On the contrary, he was able to attend this court, argued his bail application and cross-examined the State witness. So to him, his health could not permit him to attend his trial at the Regional Court, but allows him to attend in this court and argue his bail application. He has a right to argue his bail application, he also has an obligation to attend to his trial. He cannot pick and choose what is convenient for him to attend.

I have carefully examined applicant’s version, it appears to me that he is receiving medical treatment whilst in custody, which is provided for by the State.Further the applicant has a right to communicate and be visited by a medical practitioner of his choice, should he wish to.If it was the law that an accused person remanded in custody is entitled to be granted bail pursuant to a right to have access to a medical practitioner or medical facility of his choice, hardly would any accused person remain in custody to await trial. However, each case has to be decided on its peculiar facts. I am not satisfied that the applicant’s health condition ought to cause concern to the extent that a more intensive care is warranted. I am unable to find that circumstances exists, which justify his admission to bail on the grounds of ill health.

I take note that applicant submitted that the Covid 19 pandemic has made life difficult in prison. He contended that crowded prison conditions are a danger to his health and there is insufficient food and water.  He says visitations by relatives have stopped due to the pandemic and the supplementary diet provided by relatives have ceased. He says Bulawayo Prison has recorded a number of Covid 19 cases. He argues that this disease is real, and the courts should not take it lightly in regard to accused persons who are in custody.  This version was not disputed.  I am therefore bound to accept it. However, I have no doubt that in a perfect world any treatment which a patient sought would be provided if doctors were willing to give it, no matter how much it cost.  Any food a person in prison would want to have, would be provided no matter how much the cost. Prisons without overcrowding would be available, no matter how much the cost. It would, however in my view, be shutting one’s eyes to the real world if the court were to proceed on the basis that we do live in such a world.  We do not. All I can say is that after an arrest the arrested person retains his fundamental right to human dignity. However, this standing alone, and on the facts of this case, cannot be a basis to admit this applicant to bail.

In this case, the contention of the State is that the applicant is a flight risk. In S v Tsvangirai and Others HH-92-03 the court held, inter alia, that the grant of bail is a consequence of the arrest and remand of an accused person on a specific charge. The nature of the offence charged and other relevant considerations are factors to be taken into account in determining the grant or refusal of bail.It has repeatedly been held that in assessing the risk of flight, courts must take into account not only the strength of the case for the prosecution and the probability of a conviction, but also the seriousness of the offence charged and the concomitant likelihood of a severe sentence. The obvious reason of this approach is that the expectation of a substantial sentence of imprisonment would undoubtedly provide an incentive to the applicant to abscond. In S v Nichas1977 (1) SA 257 (C) 263G-H, the court said if there is a likelihood of heavy sentence being imposed the accused will be tempted to abscond. In S v Hudson 1980 (4) SA 145 (D) 164H, the court held that the expectation of a substantial sentence of imprisonment would undoubtedly provide incentive to the accused to abscond and leave the country. In S v C 1995 SACR 639 (C) 640H, it was said that whilst the possibility of absconding is always a very real danger, it remains the duty of the court to weigh up carefully all the facts and circumstances pertaining to the case.

This application turns on the risk of abscondment by the applicant. In Aitken & Another v Attorney-General 1992 (1) ZLR 249 (S,) the court set out how the court should assess the risk of abscondment. It was held:

In judging this risk the court ascribes to the accused the ordinary motives and fears that sway human nature. Accordingly, it is guided by the character of the charges and the penalties which in all probability would be imposed if convicted; the strength of the State case; the ability to flee to a foreign country and the absence of extradition facilities; the past response to being released on bail; and the assurance given that it is intended to stand trial.

It is quite clear from the above remarks that the critical factors in the above approach are the nature of the charges and the severity of the punishment likely to be imposed upon conviction and also the apparent strengths and weaknesses of the State case.

In the present case, there is no doubt that the offences with which the applicant is charged are very serious. Robbery is a very serious offence. In S v Ashton Mlilo HB-49-18 the court said the seriousness of the charge, cannot, on its own, be not a ground to refuse an accused person bail.  The courts have granted bail to accused persons facing very serious charges. In this case it is the seriousness of the offence and the circumstances surrounding the alleged commission of the offence, the attempt to flee and the subsequent apprehension by members of the public that must be considered. The State contends that applicant was apprehended by his victims, who surrendered him to the police, with his gun and some of the cell-phones he had stolen. According to the State, there is evidence linking the applicant to all the charges of robbery levelled against him.Applicant denies the charges, he argues that he was accosted and brutally assaulted by a gang of four in a Toyota Wish vehicle and handed to the police on allegations of robbery. He says nothing was recovered from him, including the gun. Notwithstanding, I take the view that the State’s case looks apparently prima facie strong.In the event he is convicted, as required by law, he shall be liable to a very long term of imprisonment.

I take the view that on the facts of this case, that applicant seeks bail to enable him to abscond and not stand his trail. There is just too much against applicant, and very little in his favour. What is in his favour is the presumption of innocence. The law presumes that he is innocent until he is proved guilty by a court of law. The other point in his favour is the right to liberty. Which is one of the most fundamental human rights, which should not be lightly interfered with. The facts of the case warrant that the presumption of innocence and the right to liberty be interfered with in the interests of justice.

The granting of bail to a suspect calls for a delicate balance between the liberty of the accused who has the presumption of innocence operating in his favour and the interests of society which demands that an accused should be able to stand trial or avail himself for trial when he is so required. It is a balancing act. Where there is an indication that applicant’s release on bail might prejudice the interest of justice the court must not opt for that route. In the Attorney-General v Aitken and Another 1992 (1) ZLR 249 @ 253C the court noted inter alia that the ends of justice would not be served if there were some cognizable indications that the accused would not abide by the conditions of the bail recognisance. In S v Fourie1973 (1) SA 100 (D) at 101 (G-H), the court gave the following guidance:

It is fundamental requirement of the proper administration of justice that an accused person stands trial and if there is a cognisable indication that he (or she) will not stand trial if released from custody the court will serve the needs of justice by refusing to grant bail even at the expense of the liberty of the accused, despite the presumption of innocence.

I find that the prosecution has a prima facie strongcase against the applicant. On conviction of robbery committed in aggravating circumstances he is very likely to be sentenced to a long prison term. The strength of the prosecution case and the likelihood of a long prison term on conviction may induce applicant to abscond and not attend his trial. The facts before court which he has not disputed are that at arrest he attempted to flee.  In terms of the legislative provisions of the Criminal Procedure and Evidence Act, to ascertain whether the accused is a flight risk, the court may factor into the equation the nature and gravity of the offence or the nature and gravity of the likely penalty therefor; and the strength of the case for the prosecution and the corresponding incentive of the accused to flee. The offence is serious. The prosecution has a strongcase against the applicant. He was apprehended on the scene. He attempted to escape. Applicant tried to flee from the people who apprehended him, but could not outpace them.  The conduct of the accused at the time of arrest can be taken into account in assessing whether he should be granted or refused bail. See Delish Nguwaya v The State HH 199-17.The circumstances of the applicant’s arrest, as described by D/S Ncube reveal a brazen execution of a robbery and a determination to escape. See Thando Chinara v The State HB 126/20. Upon conviction the sentence is likely to be severe. I find that the applicant is a flight risk. These are strong barriers against admitting applicant to bail. See S v Jongwe SC 62/2002.

Disposition

In my view the applicant has failed to discharge the onus reposed on him to show that it is in the interests of justice to admit him to bail at this stage. He is a flight risk. I am inclined to agree with the respondent’s submission that it is not in the interests of justice to admit the applicant to bail at this stage.

The application is accordingly dismissed.

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