Ocean Mpofu and Tendai Romeo Sanyanga v The State

### Preamble
1
HB 80/21
HCB 138/21
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OCEAN MPOFU

And

TENDAI ROMEO SANYANGA

Versus

THE STATE

IN THE HIGH COURT OF ZIMBABWE

MAKONESE J

BULAWAYO 27 MAY 2021

Bail Pending Trial

Ms B. Khupe for the applicants

K Ndlov  for the respondent

MAKONESE J:	On 19th January 2019, the country was rocked by demonstrations and protests under the code name “Shutdown Zimbabwe”.  In Bulawayo, the second largest city, mobs of violent protesters went on a rampage burning motor vehicles, assaulting innocent civilians and causing massive destruction to property.  A police officer, Ekson Maure was caught up in the melee,  and was assaulted by unknown persons.  He sustained fatal injuries and later died.  On 24 April 2021 the two applicants were arrested on murder allegations.  They both deny the charge. Applicants are currently in remand at Khani Prison.  Applicants apply for bail pending trial.  The state is not opposed to the application.

In applications for bail the court is enjoined to deny bail where there are compelling reasons for denying bail.  The court must never be placed in a situation where an applicant seeking bail pending trial is kept in remand to allow the state to investigate and buttress the allegations against applicant.

In this case, the brief background is as follows.  The applicants, Ocean Mpofu and Tendai Romeo Sanyanga were arrested on 24th April 2021 and charged with murder as defined in section 47 of the Criminal Law Codification and Reform Act (Chapter 9:23).  The two applicants are jointly charged with Charles Chauluka who is not a party to the present application.  The allegations against the two are that on 14th January 2019 around 11:00 hours and at or near house number J84 Njube, Bulawayo, the three acting in concert, allegedly engaged in public violence.  Police officers attended the scene.  The deceased was one of the officers deployed to attend to crowd trouble at the intersection of Masiyephambili and Luveve Roads.  Whilst going about his duties the situation got tense and officers dispersed and ran into Njube suburb.  The riotous crowd gave chase and began a door to door operation in search of the police officers.  The deceased was located at J84 Njube Township.  He was savagely attacked with stones and various objects.  Deceased sustained serious injuries. He died the following day the 15th of January 2019 whilst undergoing treatment at the Intensive Care Unit at United Bulawayo Hospitals.  Applicants were arrested in April 2021 by officers from the Law and Order Section at Bulawayo.

Applicants deny participating in the unlawful demonstrations.  They deny that they incited the public to engage in acts of violence and were not involved in the murder. They allege that these allegations were preferred against them after being implicated by one Charles Chauluka, who has since deposed to an affidavit distancing himself  from the alleged implication.  Applicants argue that they are only linked to this offence by Charles Chauluka’s assertions, which he now disowns.  In not so many words, Charles Chauluka, “confesses” to have been at the scene, wherein the deceased lost his life.  In his words, Chauluka states that the persons he recall being at the scene are Isa, Vuyo, Mathiya and Jonah, who are still at large.  Chauluka categorically states that the two applicants were not at the scene, where he himself says he was, when the tragic events unfolded.  No other evidence has been marshalled to provide a nexus between the offence and these two applicants.

In terms of section 117 (B) (a) of the Criminal Procedure and Evidence Act (Chapter 9:07) an applicant charged with a specified offence in the Third Schedule to the Act, must in an application for bail, discharge the onus placed on him by the provisions of section 115 C (2) (a) (ii) of the Act, by “adducing evidence which satisfies the judge that exceptional circumstances exist which in the interests of justice permit their release on bail”.

Applicants are facing a charge of murder involving a police office.  Their co-accused, on the basis of whose implication, they were arrested and retained, has alleged that he was pressured to list people who he was with at the scene at the material time.  On this basis, the state has a weak case against the applicants.  In the absence of other independent evidence, linking them to the offence the applicants  have demonstrated that they are suitable candidates for bail.  A suspect in a criminal offence in not required to prove his innocence.  Instead, it is the duty of the state to establish a nexus between the accused and the offence to warrant that he be denied bail in appropriate circumstances.

In my view, the applicants have demonstrated that there are exceptional circumstances in this case warranting their release on bail.  In the case of Aitken & Anor v AG 1992 (1) ZLR 249 (S), the Supreme Court laid the position per GUBBAY CJ (as he then was), at page 253 B-C as follows:

“The notion that an accused is presumed innocent until proven guilty is the cornerstone in an application for bail.  Consequently, it is the tradition of our courts to lean in favour of and not against the liberty of the subject and to grant bail where possible…”

See also S v Fourie 1973 (1) SA 100 (D) and AG Zimbabwe v Phiri 1987 (2) ZLR 33 (H).

In the present case there is no risk of abscondment.  Both applicants have strong social ties to the community.  First applicant is employed at 13 Infantry battalion in Plumtree.  He is of fixed abode.  Second applicant resides at 57600 New Lobengula and is currently unemployed.  There is no likelihood of interference with state witnesses.  The offence was committed in 2019.  At  this stage the state would have secured its witness’ statements.  The allegations that applicants are likely to commit other offences if granted bail, is a bald assertion not supported by evidence.

In the circumstances, applicants are hereby admitted to bail pending trial in terms of the draft order.

Messrs T. Hara & Partners, applicants’ legal practitioners

National Prosecuting Authority, respondent’s legal practitioners