Shingayi Sithole v The State

### Preamble
1
HB 8-19
HCB 248/18
XREF DETE 163-8/18
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SHINGAYI SITHOLE

versus

THE STATE

HIGH COURT OF ZIMBABWE

MABHIKWA J

BULAWAYO 18 DECEMBER 2018 AND 24 JANUARY 2019

Bail Application

K Ngwenya for the applicant

N Ndlovu for the respondent

MABHIKWA J:	The applicant in this matter faces a charge of contravening section 82 (1) of Statutory Instrument 362 of 1990 as read with section 128 (1) (b) of the Parks and Wildlife Act [Chapter 20:14] as amended in section 11 of the General Laws Amendment number 5 of 2011, that is to say, “Acquire, Possess or Transfer raw unmarked Ivory without a permit.”

The brief facts as alleged by the State are that on 25 November 2018, the applicant in the company of five (5) others (co-accused) intentionally acquired, possessed or transferred two pieces of ivory in the form of two elephant tasks weighing 37kgs without a permit.  It is alleged that on 24 November 2018, police received information that there were people selling elephant tasks.  Seven (7) officers of the Zimbabwe Republic Police and three (3) officers from the Parks and Wildlife Authority teamed up to follow on the information.  At cross-Dete, Hwange District, one of the detectives had a conversation with the suspects, for about two (2) hours.  They had arrived there in the applicant’s vehicle and driven by him, a red Mazda 323.

The applicant and his co-accused then took off and drove to Dete.  The officers cleverly followed behind for about 5km before intercepting the suspects at Makwanda area of Dete.  Applicant was driving the vehicle.   Of the other co-accused who were in the vehicle, Austin Sibanda and Kemesi Shoko had one elephant task each on their laps when the car was stopped and searched.

The applicant seeks to be admitted to bail pending trial relying mainly on the following factors.

a)	His personal circumstances, that he is a married motor mechanic, has three (3) minor children and is the breadwinner of this young family.

b)	That his entitlement to bail is a constitutional right guaranteed in terms of section 50 (1) (d) of the Constitution of Zimbabwe (Amendment No. 20) Act 2013.

c)	That there are no compelling reasons shown by the state which would lead the court to deny him bail.

d)	That there is no evidence that applicant has the propensity to commit crimes or that he had an inclination to abscond.

e)	That in his affidavit, the investigating officer had mentioned the names of the specific individuals who were allegedly found in possession of the said ivory.  That applicant himself maintains that he was never found in possession of the ivory and is innocent.

f)	Further that in the same bail affidavit, the investigating officer specifically mentioned the names of the co-accused who resisted arrest and attempted to escape.

Applicant thus argued that in the absence of compelling reasons, the applicant is a good candidate for and is entitled to bail.  Mr K Ngwenya for the applicant also argued that the presumption of innocence is in applicant’s favour, particularly in that he was not found in possession of the tasks.

The court noted and registered its displeasure at the fact that of late some prosecutors have been filing matters wherein they simply restate and lay down the law relating to the granting or refusal of bail with very little or no effort at all to lay bare the facts of the case in issue and relate them to the law being relied on.

It is the duty of both the state and the defence counsel, in all cases and particularly in serious offences such as the current one to assist the court by clearly laying the facts and the law so that the court comes up with a just decision on bail.  That burden is of course more on the state than the applicant.

Mr N Ndlovu had already of course quickly apologized for the way the state’s application for bail had been drafted.  He was appearing for the State on behalf of a colleague.

Mr N Ndlovu argued for the state that the offence the applicant and his colleagues were facing is a serious one.  He argued that the offence no doubt carries with it a lengthy prison term upon conviction.  This he argued would entice the applicant to abscond once granted bail.

Mr Ndlovu argued further that possession is a “legal term” which denotes legal and at times physical possession.  He argued that the fact that applicant was not himself found physically carrying the tasks in his hands would not necessarily absolute him from criminal liability.

He argued that inspite of the applicants’ criticism of the affidavit by the investigating officer, the state case remained very strong against the applicant and that if given bail, he would not stand trial and face such evidence.  He implored the court, stating that although he had not checked if at the time the matter had been set for trail, he knew for a fact that applicant’s co-accused had not been granted bail and that should applicant be granted bail and abscond, that might jeopardise the trial and the interests of justice.

Applicant in fact properly submitted that section 50 (1) (d) of the constitution as read with section 117 of the Criminal Procedure and Evidence Act [Chapter 9:07] establishes general entitlement of an accused to pre-trial bail.  However, if the circumstances indicate that the accused’s release on bail would endanger specific, general or broad interests of justice, a court would properly deny an accused bail pending trial.  While taking cognance of the accused rights to the presumption of innocence and his liberty until proven guilty, the critical question to ask at the same time is; will the interest of justice not be prejudiced by the accused’s release on bail?  The court would only lean in favour of granting bail pending trial if the interests of justice will not be jeorpadised by such grant.

Section 117 (2) reads as follows;

“The refusal to grant bail and the detention of an accused in custody shall be in the interests of justice where one or more of the following grounds are established—

a)	where there is a likelihood that the accused, if he or she were released on bail, will—

(ii)	not stand his or her trial or appear to receive sentence or;

(iv)	undermine or jeopardise the objectives or proper functioning of the criminal

justice system, including the bail system.”

In S v Tsvangirai – 2003 (1) ZLR 650 @ 664 E-F MAVANGIRA J then quoted with approval Burchell and Hunt’s South African Criminal Law and Procedure Vol. 1 at page 317 where the learned authors state that

“--- in its endeavour to protect the administration of justice, the court should not lose sight of its duty to safeguard the liberty of the subject, and a balance should be struck between these interests.  While most reluctant to consider the merits of, or to say anything which might savour of prejudging the case, the court will consider all the circumstances with a view to deciding whether the grant of release is likely to prejudice the ends of justice.”

In State v Aitkem (2) 1992 (2) ZLR 463 (S) the court also held the view that though it would not wish to deal with the merits of the charges faced by the accused at bail stage, the strength or otherwise of the state case is a salient factor in deciding whether or not to admit an applicant to bail.

Also in Aitkem and Another v Attorney General 1992 (1) ZLR 249 (S) it was held that in judging the risk that an accused person would abscond, the court would, among other factors, be guided by the following:

a)	The nature of the charges and the severity of the punishment likely to be imposed upon conviction.

b)	The apparent strength or weakness of the state case.

c)	The credibility of the accused’s own assurance of his intention and motivation to remain and stand trial.

It was also held in that case by the Supreme Court that the bail hearing High Court judge had properly exercise his discretion in deciding that even if the appellants were admitted to bail on the most stringent conditions, there was still, a real risk that they would abscond.

In casu, the crucial state witnesses are no doubt the officers who tracked, intercepted and searched the red Mazda 323 where the two elephant tasks were found.  The applicant was the owner and driver of that vehicle.  He honestly cannot escape criminal liability simply on the basis that it was not him who was holding the tasks at the time they were stopped.  It has often been stated in cases of common purpose that a person may not escape a murder charge simply because he did not pull the trigger.  This offence is one for possession and the state has argued legal possession.

It is the court’s finding that the state has a valid point.  In any case, the applicant was driving and could not have been holding the tasks at the same time.  It may well be a case of different roles in the commission of a crime.  The court is however conscious of not “trying” the case at bail stage.  Suffices to say the state case is apparently strong against the applicant and his co-accused.  The defence that the co-accused who were found with the ivory on their laps were passengers who had just asked for a lift and the applicant himself knew nothing about the tasks is difficult to believe.  In fact it is a kind of defence which his co-accused can use in reverse once applicant is granted bail and absconds.  His co-accused may also easily claim that they had been just offered a lift in a red Mazda 323 which had two elephant tasks on the back seat but, had nothing to do with the tasks themselves.

The applicant faces a serious charge likely to attract a length prison term as the offence in fact involves not one but two (2) elephant tasks.  His co-accused have remained in custody.

In the circumstances, it is not in the interests of justice that applicant be released.  His application for bail pending trial is accordingly dismissed.

Muvhiringi and Associates, applicant’s legal practitioners

National Prosecuting Authority, respondent’s legal practitioners