Rejorie Matsiela v The State

### Preamble
1
HB 121/19
HCB 207/19
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REJORIE MATSIELA

Versus

THE STATE

IN THE HIGH COURT OF ZIMBABWE

MAKONESE J

BULAWAYO 1st  & 8 AUGUST 2019

Bail Application

T. Gamure for the applicant

K. Ndlovu for the state

MAKONESE J	The applicant is a South African national ordinarily resident in the Republic of South Africa.  He is facing charges of theft as defined in section 113 (1) of the Criminal Law Codification and Reform Act (Chapter 9:23).  The allegations are that on the 25th of June 2019 he stole a truck, an Iveco Tracker, registration number HXP 425 MP from a parking bay in South Africa, by means of forged and fraudulent documents.  On the following day, a report was made to the police.  A tracking device on the vehicle was activated and indicated that the vehicle was crossing into Zimbabwe through Botswana.  The police at Plumtree were alerted.  Upon arrival at the border, the applicant was confronted and arrested by police detectives as he was leaving the border post, and after he had completed immigration and customs formalities.  The applicant was charged with theft of a motor vehicle. Applicant denies the charges and seeks bail pending his trial.  The state is opposed to this application.

In his bail statement, the applicant raises jurisdictional issues.  He contends that the offence he is accused of was committed occurred outside Zimbabwe at Ferret Complex parking bay Middelburg, South Africa.  Applicant contends that the complainant is a company based outside the jurisdiction of this court.  The applicant denies the facts surrounding the theft of the vehicle and asserts that he had legitimate papers from the complainant and that the stolen vehicle was lawfully removed from the parking bay.  Applicant avers that it was only unfortunate that  he was  the person hired to drive the truck into Zimbabwe for the purposes of removing and assisting another truck that had broken down in Zimbabwe.  The applicant contends that he was arrested on the 25th of June 2019.  He has spent almost three weeks incarcerated in a foreign prison for a crime he did not commit.  Applicant argues that there is no direct evidence linking him to the offence.  He argues that there are no compelling reasons why bail should not be granted.  The applicant drove a stolen motor vehicle into Zimbabwe.  The motor vehicle was stolen in South Africa.  This court has the jurisdiction to hear the matter.  Theft is a continuing crime. It continues to be committed for as long as the thief remains in possession of the stolen property. See; A Guide to Criminal Law of Zimbabwe by G Feltoe at page 130 2nd Edition and Lisani Nkomo v The State SC 79/06  at page 8 of the cyclostyled judgement.  The offence of theft of a motor vehicle is an offence specified in part 11 of the Third Schedule.  Section 115 (c) (2) (a) (i) of the Criminal Procedure and Evidence Act (Chapter 9:07) states that the prosecution shall bear the burden of showing on a balance of probabilities, that there are compelling reasons, justifying an accused’s continued detention, unless the offence in question is one specified in the Third Schedule.  Subsection 2 (1) (b) of the same section recites that where the offence in question is one specified in Part 11 of the Third Schedule the accused bears the burden of proving on a balance of probabilities that there are exceptional circumstances which exist in the interests of justice to prevent his or her release from custody on bail.  The applicant has not advanced any meaningful grounds for proposing that there are exceptional circumstances warranting his release on bail.

Mr Gamure, appearing for the applicant conceded that the issue of jurisdiction does not arise in this application.  It is clear that the applicant faces allegations of theft of a motor vehicle which was transiting from South Africa, through Botswana, into Zimbabwe.  The offence the applicant is facing falls into the category of transnational crimes.  These are crimes that occur across, beyond or through multiple countries.  In this instance the motor vehicle in question was seized at Plumtree border post, having been driven from South Africa through Botswana, into Zimbabwe.   The applicant had completed all the customs and immigration formalities.  The vehicle was in Zimbabwean territory at the time the arrest was  effected.  The courts in Zimbabwe have full jurisdiction to hear this matter.  Mr Ndlovu, appearing on behalf of the, state has indicated that the witnesses have been warned to appear in court for trial on the 5th of August 2019.  There will be no undue delay in the conduct of the trial.  Whilst the fact that the matter has been set down for trial on its own, is not a reason to deny bail, an applicant facing charges specified in Part II of the Third Schedule of the Criminal Procedure and Evidence Act must show on a balance of probabilities that there are exceptional circumstances that warrant his release on bail.

The applicant’s explanation that he was merely a hired driver sounds hollow.  The state has furnished a copy of a police report filed in South Africa.  The motor vehicle in question was reported stolen.  If the applicant was an authorized driver it was incumbent upon him to produce a letter of authority from the owners of the vehicle granting him permission to drive the vehicle into Zimbabwe.  Such authority does not exist.  There is no indication of the final destination of the vehicle. The applicant does not give details of the vehicle that was to be rescued from Zimbabwe. His explanation is palpably false. Crimes of this nature are difficult to combat. The prospects for applicant absconding are extremely high.  In Aitken & Anor v AG 1992 (2) (1) ZLR 249 (S), the learned judge held at page 234 as follows:

“In judging the risk the court ascribes to the accused the ordinary motives and facts 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 response to being released on bail, and the assurance given that it is interested to stand trial.”

The applicant faces serious charges of theft of a motor vehicle.  He is a foreign national.  He has offered a tenuous defence to the charges.  The likelihood of abscondment is high.  It is not in the interests of justice to grant the applicant bail pending trial at this stage.

In the result, and accordingly, the application is hereby dismissed.

Mabundu & Ndlovu Law Chambers, applicant’s legal practitioners

National Prosecuting Authority, state’s legal practitioners