Shephard Maponga v The State

### Preamble
1
HB 37/21
HCB 57/21
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SHEPHARD MAPONGA

Versus

THE STATE

IN THE HIGH COURT OF ZIMBABWE

KABASA J

BULAWAYO 1 MARCH AND 11 MARCH 2021

Appeal Against Bail Refusal

J. Ndlovu, for the appellant

B. Maphosa, for the respondent

KABASA J:		This is an appeal against the refusal by the court a quo to grant the appellant bail on the basis of changed circumstances.

The background to the matter is this: The appellant was arrested in October 2020 on allegations of theft as defined in section 113 (2) (a) and fraud as defined in section 136 of the Criminal Law (Codification and Reform) Act, Chapter 9:23.

It is alleged that the appellant was employed as a depot manager at Ipomea Enterprises, a company whose core business involves the buying and selling of bulk fuel.  On 31st August 2020 the company’s accountant audited the company’s books covering the period 1st June 2019 to 30 June 2020.  The audit revealed a misrepresentation of fuel quantities issued and recorded resulting in a prejudice of 78 195 litres of diesel and 40 526, 20 litres petrol with a total value of US$114 811, 45.  The audit also unearthed quantities of fuel which were supplied to a customer and paid for in cash but such cash was not remitted into the company coffers.  The total amount involved was US$104 108.

The appellant appeared in court for initial remand and made an application to be admitted to bail.  The application was opposed.  The opposition was premised on the fact that the appellant was a flight risk, had contacted witnesses via telephone, investigations were on-going and the seriousness of the charges would induce the appellant to abscond.

The court a quo ruled that the appellant was a flight risk as he was arrested in Murombedzi and was also communicating with fellow employees.  The learned Magistrate went on to conclude as follows:-

“The grounds that accused has been on the run and contacting fellow employees about the progress of the investigations are compelling grounds to deny bail.  Hence accused is denied bail pending trial.”

Aggrieved by this ruling the appellant appealed to this court, which appeal was unsuccessful.  At the time of hearing of the appeal the appellant’s trial had been aborted due to the unavailability of his erstwhile legal practitioner.  A new date for trial was set which was again aborted as the appellant was said to be ill and was therefore not brought to court.  A new date had been furnished and witnesses who had failed to testify warned for the new date.

The residential address the appellant had given as the place of residence was found to be incorrect.  Through investigations the police managed to find the correct address but the landlord’s relative who stays as a caretaker at the premises was not aware of the appellant’s whereabouts as the appellant had just left the premises without informing him and never returned.

The appeal court found no misdirection or irregularity in the exercise of discretion by the court a quo warranting interference with the decision to deny the appellant bail.  This informed the appeal court’s decision to dismiss the appeal.

Following the dismissal of the appeal on 26th November 2020 the appellant’s trial commenced on 9th December 2020 and a total of 5 witnesses testified.  The state subsequently closed its case on 14th December 2020 whereupon the appellant made an application for discharge in terms of section 198 (3) of the Criminal Procedure and Evidence Act, Chapter 9:07.

Before a ruling on the application could be made the country was placed under Level 4 lockdown to contain the spread of the Corona virus.  The courts could only deal with urgent applications and bail applications which meant the ruling on the application for discharge had to be held in abeyance.  The matter had been postponed to 13th January 2021 for the ruling.

The appellant then made an application for bail based on changed circumstances in terms of section 116 (c) (ii) of the Criminal Procedure and Evidence Act.  The application was made on 28th January 2021.

The changed circumstances the appellant relied on were:-

a)	The 5 state witnesses’ uncontroverted evidence proved that stand 1592 Murombedzi Zvimba where the appellant was arrested at is his own property.  The appellant had travelled there to attend to a sick child and his employer had given him leave of absence thereby disproving the initial assertion that the appellant was fleeing from justice when he went to Murombedzi.

b)	The state had called all 5 witnesses and closed its case and so the issue of interference with witnesses was no longer an issue.  It no longer existed.

c)	The on-going investigations which were hoped to result in the recovery of the stolen money or fuel had not yielded any positive results.  The fear that appellant would conceal or destroy evidence was therefore no longer an issue.

d)	The appellant had secured an alternative address where he could reside in compliance with the Covid – 19 lockdown regulations which prohibited inter-city travel.

The application was opposed with the state contending that the trial had commenced and the parties were awaiting the court’s ruling on the application.

On the issue of evidence establishing that the appellant had gone to Murombedzi to attend to a sick child after getting time off from the complainant, the state accepted that this was indeed the evidence led from one Lazarus Demo but the same witness went further to state that the employer suspected that there could have been fraudulent activities going on and so caused an audit to be carried out.  The auditor required the books of accounts which were being maintained by the appellant and so the appellant was asked to come and avail such books but he refused.  The books of accounts could not be located and are still missing.  The company laptop could also not be accessed as the appellant had locked it by inserting a password which no one knew.

The appellant refused to attend a review of the audit outcome.  He again did not avail himself on being advised of the outcome of that review.  He never availed himself until his arrest.  The 2 weeks leave of absence he had been given had lapsed and he did not come back to work.

Contrary to the assertion that the 5 state witnesses’ evidence is weak, such evidence established a prima facie case against the appellant.  So whilst the risk of interference with witnesses no longer exists the risk of abscondment is high.

The state further contended that after the appellant was initially denied bail on 26th October 2020 the matter was referred for trial which was to commence on 4th November 2020.  The appellant’s defence counsel had been duly served with the requisite state papers.  On the date of trial the defence counsel did not come but sent a representative to seek a postponement.  The matter was postponed to 9th November 2020 but again the defence counsel sought another postponement ostensibly because he was not ready for trial and was yet to prepare his client’s defence outline.  The matter was postponed to 24th November and the trial was again aborted as the defence counsel did not turn up, necessitating yet another postponement to 27th November 2020.  On the 27th November and 3rd December the trial was again aborted as the appellant was said to be ill.  The trial finally commenced on 9th December.

The trial could therefore have been finalized without delay but for the appellant’s conduct.

As regards the alternative address the appellant provided, the state contended that this cannot be an alternative address as no address was ever furnished in the first bail hearing.

An affidavit was also filed from the Investigating Officer to the effect that the appellant’s uncle whose address the appellant gave as an “alternative address” is employed by the Zimbabwe National Army and resides at Induna Army Barracks but no civilians over the age of eighteen are allowed to stay within the barracks.

A statement from Zvimba Rural District Council was also obtained and the Chief Executive Officer stated that although there are people with a similar surname who own property in Murombedzi, the appellant is not one of them as their files and electronic payment systems do not show a Shephard Maponga as a property owner in the area.

After considering these submissions the court a quo came to the conclusion that the weakness of the state case is yet to be determined and can therefore not be regarded as a changed circumstance warranting admitting appellant on bail.

The trial has commenced and the evidence led showed that the appellant wanted to evade justice.  He refused to avail himself when the complainant requested his presence and he never did even after the lapse of his leave of absence until he was arrested.

The trial had many false starts due to the delaying tactics employed by the appellant and the residential address he furnished as an alternative address is a new fact which sought to address the fact that the initial address the appellant gave was incorrect and he also had vacated those premises.

As a result the court a quo concluded that there were no changed circumstances as envisaged by section 116 (c) (ii) of the Criminal Procedure and Evidence Act.  The application for bail on changed circumstances was accordingly dismissed.

The question is whether the court a quo misdirected itself warranting this court’s interference?

Section 116 (c) (ii) of the Criminal Procedure and Evidence Act provides that:-

“Subject to this section and sections 32 and 34, a person may, upon an application made in terms of section 117 A, be admitted to bail or have his or her conditions of bail altered –

(a) 	….

(b) 	….

(c)	if he or she is a person whose case is adjourned in terms of section 55 (1) of the Magistrates Court Act (Chapter 7:10) or in respect of whom an order has been made in terms of section 35 (4), by a Judge or by any Magistrate within whose area of jurisdiction he or she is in custody:

Provided that –

(i)	….

(ii)	where an application in terms of section 117 A is determined by a Judge or Magistrate, a further application in terms of section 117 A may only be made, whether to the Judge or Magistrate who has determined the previous application or to any other Judge or Magistrate, if such application is based on facts which were not placed before the Judge or Magistrate who determined the previous application and which have arisen or been discovered after that determination.” (my emphasis)

In Murambiwa v State SC 62-92 it was held that the passage of time since the last bail application was made can be a new fact.

In casu there was reference to the delay in the finalization of the matter.  However the learned Magistrate chronicled the events which culminated in the trial finally being heard on 9th December 2020, attributing the delay to the appellant.  A reading of the record bears testimony to this finding by the court a quo.

The reasoning by the court a quo that the delay in the finalization of the matter, which can also equally be seen as time lapse since the last bail application, is not a new factor as envisaged by section 116  (c) (ii) cannot be faulted.

In Barros and Others v State 2002 (2) ZLR 17 it was held that a postponement of a trial is a change in circumstances entitling a court to reconsider the question of bail.

In casu the postponements were occasioned by the appellant who appeared to be bent on frustrating the commencement of the trial.  The trial finally commenced and the state called all its witnesses and subsequently closed its case.  The ruling on the application for discharge would have been made but for the coming in of the Covid – 19 Level 4 lockdown measures.  This postponement must be looked at in its proper perspective.

The learned Magistrate considered the issue relating to the weakness of the state case and the postponement due to the national lockdown and concluded that these factors did not warrant a decision in favour of granting bail on changed circumstances.

The learned Magistrate is better placed to assess the weakness or otherwise of the state case.  This court has not been favoured with a transcript of the proceedings to be able to make an informed decision.

In George Kabanda v The State HH 750-16 CHITAPI J had this to say:-

“An important consideration in my view in a case where bail is sought during an ongoing trial would be the nature and strength of the evidence led in the trial court.  This can only be assessed by having a transcript of proceedings being availed for consideration.  I do not have such transcript and the applicant has not filed it.”

I would say the same in casu.  To ask this court to determine the issue of the strength of the state case is tantamount to asking it to pre-empt the court a quo’s decision, an impossible feat in the circumstances.

It is also important to note that whilst the appellant argued that the fact that all witnesses have testified removes the earlier issue of interference with witnesses, this was not the only ground upon which bail was successfully opposed.  The witnesses’ evidence, as demonstrated by the learned Magistrate, established the appellant’s reluctance to avail himself when the employer sought his presence after the discovery of the alleged theft and fraud.

So too is the issue of investigations which the appellant argues is now water under the bridge as the state has closed its case and no evidence was adduced as to the nature and result of those investigations which were aimed at recovering the stolen money and/or fuel.

This issue does not dispose of the fear of abscondment which in itself works against the proper administration of justice. Where an accused flees before the conclusion of a trial, the proper administration of justice is frustrated, more so in casu where the trial is almost about to be concluded.

As regards the alternative address the appellant has given, the question is it is alternative to what?  The record shows that the address given at the initial bail application was not correct.  When the correct address was located it was discovered that the appellant had long vacated that place and that was one of the grounds upon which his initial appeal was dismissed.  It surely cannot be regarded as a change in circumstances to provide some other address.  To my mind what the applicant seeks to do is to ask the court to re-visit its decision which decision was based on facts the appellant had stated in support of his bail application and which facts informed the decision not to grant him bail.

That alternative address has also been shown to be unavailable to him as he cannot reside at the Army barracks.

The alternative address does not amount to changed circumstances and the learned Magistrate’s finding on this cannot be faulted.

Counsel for the appellant relied on Keltles v State HB 119-20 for the proposition that the risk of contracting the corona virus in prison is a factor to be considered in the appellant’s favour.

Each case must be considered on its own particular circumstances.  Had all other factors been in the appellant’s favour then such a risk could be considered but would that amount to a change in circumstances?  Was such risk not there at the time of the initial bail hearing and was it not there on all the times the trial was aborted due to the appellant’s apparent efforts at frustrating the commencement of the trial?  I would say the risk was there and so it cannot now be seen as a change in circumstances.

In the State v Samson Ruturi HH 26-03 CHINHENGO J made the poignant observation that this court cannot substitute its own discretion in the absence of a misdirection or irregularity on the court a quo’s exercise of its discretion in refusing to admit an applicant to bail.

I find no basis to justify interfering with the court a quo’s decision to refuse to admit appellant to bail on changed circumstances.  I equally find no fault with the court a quo’s findings that there are no changed circumstances as envisaged by section 116 (c ) (ii) of the Criminal Procedure and Evidence Act warranting admitting the appellant to bail.

In the result the appeal against the court a quo’s decision to deny the appellant bail on changed circumstances be and is hereby dismissed.

Mashayamombe & Co. Attorneys, appellant’s legal practitioners

National Prosecuting Authority, respondent’s legal practitioners