Tobias Dube v The State

### Preamble
1
HB 80/22
HCB 368/20
---------


TOBIAS DUBE

Versus

THE STATE

IN THE HIGH COURT OF ZIMBABWE

TAKUVA J

BULAWAYO 24 NOVEMBER 2021 & 17 MARCH 2022

Bail Application

S, Chinyanganya for the accused

K. Guveya for the state

TAKUVA J:	This is an application for bail pending trial.  The applicant is in custody pending trial for murder as defined in section 47 of the Criminal Law (Codification and Reform) Act Chapter 9:23.  There are three accused persons who are jointly charged with the applicant.  The allegations are that on 20 August 2020 at ARDA Balu Estate, Umguza main gate the accused persons who were armed with machetes and axes approached the deceased Enerst Dube and Ashely Manyemba security guards on duty.  They struck the now deceased with axes and machetes all over the body and he died on the spot.  The applicant and his accomplices stole the deceased’s service rifle with 10 rounds of ammunition, a Nokia cellphone, a lanyard and house keys before disappearing into the bush.

Applicant and his accomplices unsuccessfully applied for bail in this court.  Applicant as a one man band has decided to re-apply for bail on the ground that circumstances have since changed since the denial of bail in that his co-accused who admit having encountered the deceased have deposed to affidavits duly sworn confirming that he was not with them at the scene of the murder.  These annexures are attached and marked “D-F” respectively.

According to the applicant he was never anywhere near the scene of the murder.  His explanation for possessing the deceased’s blood stained jacket is that it was left in his custody by one Dumara (Dumisani Mdluli) whilst drinking beer at Joko bar at around 10pm of the night deceased was murdered.  Applicant admits that there was a blood stained axe covered by this jacket although he professes ignorance of its existence at the time he took possession of the jacket.  He further contended that this change in circumstances actually tilts the scales in the applicant’s favour as it places him away from the scene of the offence.  This, so the argument goes means his defence is “partially” proven and the State case is no longer as strong as it thought it was when bail was initially denied.  Accordingly there exists no inducement upon him to abscond.

Mr Guveya for the State opposed the application on the following grounds;

Applicant has a heightened risk of abscondment.

Applicant is facing a charge of murder as defined in section 47 of the Criminal Law (Codification and Reform) Act (Chapter 9:23).  The offence is specified under Part 1 of the Third Schedule to the Criminal Procedure and Evidence Act (Chapter 9:07) (the Act) and was committed in aggravating circumstances.

The applicant has failed to discharge the onus proving that he is a good candidate for bail.

Applicant has not demonstrated the existence of exceptional circumstances which in the interests of justice can be termed change of circumstances.

Respondent’s counsel further argued that in casu there are no new facts which have arisen or have been discovered in that all that the applicant has done is solicit a change of heart from his co-accused to exonerate him from the commission of the offence.  However applicant fails to explain away the fact that he was found in possession of a blood-stained axe and deceased’s blood-stained jacket.  Applicant’s shoes were also blood-stained.

Finally, the respondent argued that the interests of justice will be greatly compromised if the applicant were to be granted bail at this stage as he has not demonstrated the existence of exceptional circumstances warranting his admission to bail.

The law

Where bail has been refused by a court, a further application for bail can be made at subsequent remand proceedings if this application is based on new or different facts from the previous application.  Section 116 (1) (c) (ii) of the Act provides that;

“(ii)	Where an application in terms of section 117A is determined by a judge or magistrate, a further application in terms of section 117A 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.”

See also S v Borras & Ors 2002 (2) ZLR 17 (H) where HLATSHWAYO J (as he then was) held that a postponement of a trial is a change in circumstances entitling a court to reconsider the question of bail …  Whether bail should in fact be granted will depend on the circumstances of the case in question.  …”

See also Murambiwa v The State S-62-92 where it was held “that the passage of time since the last application for bail can be a new fact arising after the last application.”

John van der Berg, Bail, A Practitioner’s Guide, Third Edition at page 73 states;

“Once a court has refused bail, it is not, of course precluded from hearing a renewed application, provided that the applicant for bail shows the existence of new facts or changed circumstances. …  It is not only the new matter which is to be considered by a court hearing a subsequent bail application, but the initial body of evidence and circumstances which impact on the issue when the new application is heard; and this would oblige the court to have regard to the prior evidence and information which may, have been placed before it”.

In S v Vermaas 1996 (1) SCR 528 (T) 531e-f the court stated that;

“Obviously an accused cannot be allowed to repeat the same application for bail based on the same facts week after week.  It would be an abuse of the proceedings.  Should there be nothing new to be said, the application should not be repeated and the court will not entertain it.  But it is a non sequitar to argue on that basis that where there is some new matter the whole application is not open for reconsideration but only the new facts.  I frankly cannot see how this can be done.  Once the application is entertained the court should consider all facts before it, new and old, and on the totality come to a conclusion.”(my emphasis)

There can of course be no numerius clausus as to the nature of new facts or changed circumstances that may legitimately warrant the grant of bail previously refused.  In S v Mohammed 1999 (2) SACR 507 © it was held that the newly discovered evidence of a witness who may prove the accused’s innocence amounts to a changed circumstance.

Application of the law to the facts

In casu, the applicant relies on the newly discovered evidence of his co-accused who have exonerated him in sworn statements after the 1st application was decided.  I have read my brother’s judgment dismissing the 1st application.  While it is apparent that this issue never came up, what exercised my mind is whether or not this fact was not known to the applicant at that time.  Upon their arrest applicant’s co-accused persons incriminated the applicant in their unconfirmed extra curial statements.  Later in annexures D, E and F all of them exonerated him.  This was after the 1st bail application had been dismissed.

While it is a principle of our law that an accused’s statement in reply to police questions is only evidence against the maker of the statement and is not evidence against any other person, it is also trite law that if the maker goes into the witness box and repeats on oath what he or she said in the statement such evidence becomes admissible against the co-accused.  Put differently, an accused’s evidence whether exculpatory or incriminatory is admissible for or against his co-accused.  In light of this, the applicant’s co-accused persons can be termed his witness whose exculpatory evidence was discovered late.  The fact that applicant omitted this evidence during the 1st bail application probably means that he was unaware of its existence.

Accordingly, I come to the conclusion that the co-accused persons’ exculpatory evidence post the 1st application amounts to changed circumstances.  Therefore this application is properly before me as it complies with the provisions of s116 (1) (a) (ii) of the ct.  However, the matter does not end here as the court is required to consider the totality of the evidence before deciding on the application.  The court per DUBE-BANDA J dismissed the 1st application on the grounds that the “applicants” were likely to abscond if admitted to bail.  It was held that there is a strong prima facie case against all of them. The issue is whether the exculpatory evidence has the effect of weakening the State’s prima facie case against the applicant.  I am not convinced that it does, for whatever exculpatory version of the accomplices might be, it does not and cannot lessen the sting of the evidence of the applicant’s possession of the deceased’s blood-stained jacket, a blood-stained axe and the fact that applicant’s shoes were blood-stained.  All the co-accused persons are mum on this crucial piece of evidence.

It is the applicant who introduced one Dumara (Dumsani Mdluli) into the fray.  Apart from the unconvincing explanation, none of his co-accused mentions Dumara’s role.  If indeed Dumara was there and left with deceased’s jacket, surely they would have mentioned this in their affidavits.  They did not do so.  Applicant’s explanation that he took possession of a blood-stained jacket that contained an axe without realizing the axe inside the jacket is not only improbable but completely false.  It is simply incredible to believe that Dumara would murder deceased, take the murder weapon together with deceased’s blood-stained jacket to a bar and leave these incriminating exhibits with applicant well knowing that they could easily be traced back to him through applicant with disastrous implications.

I take the view that the strength of the State case has not been reduced by the co-accused’s affidavits.  To the contrary, it is the applicant’s defence that has been weakened by the accomplices flip flopping.  What should be noted is that in the 1st application, none of the applicants indicated his defence to the court.  Up to now, the nature of their defences is not known.  It is only the applicant who in this second application says he was not at the scene.  Strangely, he seeks corroboration from accomplices whose role at the scene is unknown to the State and the Court.  According to the applicant, his co-accused “engaged” the deceased.  Whatever this means, it is a huge dent on their credibility.

In denying them bail my brother DUBE-BANDA J said;

“On the facts placed before the court by the respondent, I find that the State has a strong prima facie case against the applicants.  Applicants are facing a serious charge of murder.  It is trite that the seriousness of the offence charged standing alone, cannot be a ground to refuse to release an applicant to bail pending trial.  This is so because no matter the seriousness of the charge the presumption of innocence still operates in favour of the accused.  See Mlilo v The State HB-49-18.  There must be something more than the mere seriousness of the charge for the court to refuse to admit an accused to bail.  In S v Acheson 1991 (2) SA 805 NW, the court said the key consideration is whether or not the accused will return to court if released and ultimately whether they will stand trial.  On the facts of this case if convicted, applicants are most likely going to be sentenced to a lengthy custodial term, thus they will be tempted to abscond and not stand trial.  At arrest they attempted to flee.  The temptation from the applicants to abscond if granted bail is real.  See S v Jongwe SC-62-02.”

I entirely agree with these findings especially if one considers the following evidence linking the applicants to the commission of the offence;

The deceased’s 303 rifle serial number 1086, lanyard and house keys were found in possession of the applicants on their arrest.

They were also found with blood-stained clothes and blood-stained machete.

The applicant was found in possession of a blood-stained axe and deceased’s jacket which also had blood on it.

The accused persons made positive indications at the scene of crime.

The applicants were arrested after a high speed chase with police officers who had to summon police patrol dogs for assistance.

In my view the cumulative effect of these facts constitutes a weighty indication that there is a likelihood that the applicant will abscond if granted bail pending trial.  Therefore upon careful consideration of all the facts old and new, I am satisfied that the interests of justice do not permit the release of the applicant on bail.

In the result it is ordered that the application for bail pending trial on changed circumstances be and is hereby dismissed.

Liberty Mcijo & Associates, applicant’s legal practitioners

National Prosecuting Authority, respondent’s legal practitioners