Erec Manzi Sangwa v The State

### Preamble
1
HCC 52/24
HCCR 587/24
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EREC MANZI SANGWA

Versus

THE STATE

HIGH COURT ZIMBABWE
BACHI MZAWAZI J
CHINHOYI, 03 - 07 JUNE 2024

Appeal against refusal of bail

R. Mupita, for the Appellant
R. Nikisi, for the State

BACHI MZAWAZI J: Appellant, appeared before the Regional Magistrate Court, Kadoma on two occasions seeking bail pending trial. He had been apprehended on two charges of armed robbery and possession of articles used in the commission of an offence, in contravention of ss126 and 140 of the Criminal Law Codification and Reform Act [Chapter,9:23], respectively. Of note, on his initial remand of the 2nd of May 2024, bail was opposed by the State, on the faith of the request of remand form and the investigating officer’s affidavit. When the appellant reappeared on the 8th of May 2024, the State was in possession of a consent paper signed by the area public consenting to the granting of bail.

After a brief enquiry by the presiding court from the legal representative, Mr Urayai on page 24 of the record of proceedings, the court therein denied the appellant bail. The appellant through his defence counsel confirmed that his motor vehicle was used in the commission of the offence and that twelve days later he was found still in possession of some of the stolen property and articles of criminal use. This was also embodied in the request for remand form, also known as the form 242, and the investigating officer’s affidavit.

The application was subsequently turned down on the basis of the strength of the State case and the likelihood to abscond due to the seriousness of the offence which attracted a lengthy imprisonment term. In rejecting the consent paper, the presiding court justified its position by stating that, there was sufficient evidence on record, mainly from the investigating officer’s sworn affidavit establishing compelling reasons in terms s117(2) of the Criminal Law Codification and Reform Act [Chapter,9:23].

The brief background is that, the appellant a driver of a Nissan Serena motor vehicle, registration number AFW4156, was on the 18th of April, 2024 hired by the complaints as ordinary passengers from Chegutu to Harare. Along the way, the vehicle was diverted to Mupfure Farm. All the occupants of the vehicle were robbed at gun point and threats from machetes and other criminal paraphernalia, of their valued electrical gadgets possession. They were left with both their hands and feet tied.

Apparently, the robbers were in the same vehicle with all the passengers as well as accomplices as the appellant and had posed as co-passengers. After the robbery the culprits escaped leading to the police report by the complainants. The appellant was then seen by police detectives driving the same vehicle a few days later on the 21st of April 2024. This led to his arrest. An assortment of weapons used in the commission of offences was recovered in the same car.

From the evidence on record, the defence counsel in the court aquo, seemed to have admitted that the appellant was arrested at the scene of the crime. This however, does not make sense given that in terms of the State papers and the appellant’s own averments in his supplementary submissions he was arrested twelve days after the commission of the crime.

Nonetheless, it is the appellant’s defence then and now that he had been hired unsuspectingly by the culprits who then turned out to be armed robbers. As such, he was as much a victim as were the rest of the complainants.

Disgruntled, the appellant has approached this court attacking the court aquo’s decision couched in short as follows, that the court a quo misdirected itself in making a finding that there was a strong case for the prosecution which would influence the appellant to abscond having regard to his explanation to the charges. Secondly, that the court aquo misdirected itself in making a finding that there were compelling reasons to deny the appellant bail when the state in the court a quo consented to bail.

Summarily, he challenges that court’s findings on the strength of the State case and the likelihood of not standing trial against his right to liberty and the presumption of innocence ensconced in the Constitution. It is his argument that, correctly so, it is the State which has the onus to prove compelling reasons to rebut the appellant’s constitutionally guaranteed automatic right to his freedom pending trial. In that regard, in the face of a consent from the State, there were no compelling reasons upon which the court then decided to reject his admission to bail. In addition, they claim that no evidence was established in support of the strength of the State case or the fears that the appellant was likely to abscond. As such, the court erred and misdirected itself in refusing him bail.

The State Counsel, on appeal submitted that the trial court did not err or misdirected itself. It exercised its discretion judiciously, based on the evidence from the police officer’s affidavit. This sworn piece of evidence established the basis of its conclusion that appellant was likely to abscond in light of the strength of the State case and the attendant penalty. As it where, such, discretion was not so unreasonable as to vitiate that court’s decision. Mr. Nikisi for the State, highlighted the exceptional circumstances upon which an upper court can tamper with the discretion of the subordinate court which they submitted were not present in this appeal. He further argued that, this was a third schedule offence dictating the burden of proof to shift to the appellant to provide exceptional circumstances and that it was in the interests of justice for him to be admitted to bail. In support of their averments the State relied on several cases, amongst them State v Chikumbirike 1986 (2) ZLR 145 (5) and Aitken & Anor v Attorney General 1992 (1) ZLR 249 (5).

On the other hand, the defence maintained its argument as alluded to above and emphasised that, the seriousness of the offence, risk of abscondment or strength of the State case are not factors to be determined singly but cumulatively. Further, they can be allayed by stringent bail conditions, especially in view of the fact that appellant eventually surrendered himself to the police. The defence relied on the cases of State v Hussey 1992 (2) ZLR 187 SC, Fletcher Dulizi v The State SC 126-01, AG v Phiri 1987 (2) ZLR 331 and Mubaki v The State HH 192/11 amongst several others.

Broadly, the main issue before this court is whether or not the court erred in its decision to deny the appellant bail in the face of the State’s consent?

To begin with, the legal position is that, s50(1)(d) of the Constitution, accords an accused person an automatic right to freedom from detention pending trial unless there are compelling reasons. This premised on s70 of the same Constitution, which proffers a rebuttable presumption of an accused’s innocence until proven guilty. See, State v Mada HCC30/2022 and State v Daryl HCC06/23.

Section 115(2) of the Criminal law Code, places the burden of proof of such compelling reasons on the State. In Zenda v State HB101/17 the court dealt with an appeal against bail refusal wherein the court a quo had dismissed a bail application in which the prosecution had consented to bail, in overturning the decision the learned judge remarked as follows;

“Understanding where the onus lies will assist the lower court to appreciate the folly of appearing to descend onto the arena and in the process misdirecting itself as the court a quo did in the present case. I say this because the prosecution did not even begin to discharge the onus of showing the existence of compelling reasons for the denial of bail”

What distinguishes the case of S v Zenda, supra, with the current case is that, the offence in Zenda was not a third schedule offence, whereas, in the present case the appellant faces a third schedule offence. Thus, as already extrapolated, it matters not that the respondent had consented to give the bail application or not in terms of Section 116 of the Criminal Procedure and Evidence Act, [Chapter 9:07]. It was still incumbent upon the appellant to demonstrate that exceptional circumstances existed which warranted his release on bail in the interests of justice.

In casu, it is one hundred per cent, correct that the State has the onus to prove compelling reasons in view of s115C (2) and the above cited cases. However, in my considered view, the point of departure is that, the consent paper filed of record did not necessarily indicate lack of compelling reasons. It merely stated, that the State is not opposed to bail and bail should be granted on attached conditions. It is bereft of any factual or legal backing to convince the court that the appellant is a good candidate for bail against the glaring facts that had been placed before the court. Of course, one would jump to conclude that, then entails that the State failed to place compelling reasons by the mere fact that it placed literally nothing before the presiding court. In the absence, of any other evidence initially placed before the same court this is a sound conclusion. However, it is prudent that the State details the reasons why it is of the opinion that there were no compelling reasons. It is not sufficient to simply dictate bail conditions to the court. This type of consent falls flat in its face faced with the contrasting evidence supplied by the same source, the State.

Further, the consent paper serves as some form of submissions or proposition by one of the two opposing litigants. It is therefore, subject to the court’s scrutiny. The State’s consent cannot usurp or oust the court’s role as the arbiter or ultimate decision maker with a constitutional mandate to hear and weigh facts and evidence from both sides and then come up with sound decision.

This observation finds support in section 115C. (1) of the Chapter, [9:07], which reads:

In any application, petition, motion, appeal, review or other proceeding before a court in which the grant or denial of bail or the legality of the grant or denial of bail is in issue, the grounds specified in section 117(2), being grounds upon which a court may find that it is in the interests of justice that an accused should be detained in custody until he or she is dealt with in accordance with the law, are to be considered as compelling reasons for the denial of bail by a court.

The section further solidifies that it is within the court’s ambit to decide on whether to grant bail or not notwithstanding that the State has consented or not, guided by the compelling grounds outlined in s117(2).

What constitutes compelling reasons is well provided for in section 117 (2) as:

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—

(i) endanger the safety of the public or any particular person or will commit an offence referred to in the First Schedule; or

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

(iii) attempt to influence or intimidate witnesses or to conceal or destroy evidence; or

(iv) undermine or jeopardise the objectives or proper functioning of the criminal justice system, including the bail system;

or

(b) where in exceptional circumstances there is the likelihood that the release of the accused will disturb the public order or undermine public peace or security.

Section 117(1), buttress the same that the court does not merely rubberstamp nor endorse the State’s submission without censor. It accords the court the discretion to deny bail if it is in the interest of justice to do so. The interests of justice are determined by the provisions of s117(2) above. State in Criminal matters, is dominus litus but it exercises that dominance within set legal parameters. See, State v Essack 1965 (2) SA 161 (D) @ 162 and Ian Makone v The State HH 493/07.

In the present case, the court was privy to the police investigating officer’s sworn affidavit that detailed reasons why the appellant was not a good candidate for bail. It brought to the fore the circumstance under which the offence took place, how the police reports were made, how the vehicle with the weapons was recovered, as well as, how the appellant was arrested. This was evidence establishing the basis upon which the court concluded that the State case was strong and could propel the appellant to evade justice. I agree with the State counsel that the Magistrate’s court’s ruling cannot be impugned.

Notably, the police officer’s affidavit which the court relied on buttressed their reasons in opposing bail in the form 242, which cannot be ignored. That affidavit is evidence with or without the summoning of viva voce evidence from its author. If a police officer’s affidavit is sworn to and commissioned by a commissioner of oath, it meets all the requirements of a sworn statement. As a stand- alone it is evidence with probative value. The calling of the police officer to testify orally is a bonus but not a rule of thumb. It only serves to clarify certain aspects in contention.

It is common cause that a court of appeal, is at large to make a determination whether or not the trial court was indeed correct in making a finding that there were compelling reasons. A distinction must be drawn in the approach that is taken in an application for bail pending trial and that of an appeal against the refusal of bail. With the former, the court is at liberty to explore all the compelling reasons listed in s117(2) above, and weigh them against the accused person right to freedom from detention. However, in the latter, the appeal court has to concentrate but is not restricted to whether or not the court misdirected itself in one way or the other.

As correctly put by the State, it is an accepted general rule that, the discretion of the presiding court is not lightly interfered with unless it has been injudiciously exercised. This is where the decision was irrational leading to gross misdirection and or where there was a mis-direction in facts or the application or interpretation of the law. Section 38 of the High court Act Chapter 7:06 enlists instances whereby the upper court can be allowed though sparingly to interfere with the decision of the lower court.  Barros and Anor v Chimponda 1999 (1) ZLR 59, S v Mulunjwa 2003 (1) ZLR 275 H. Barros & Anor v Chimponda(supra) amply outlined the exceptional circumstances upon which that interference can be justified.

Disposition

In the final analysis, the subordinate court’s discretion in rejecting the State’s consent cannot be faulted. It reasoned out that the appellant’s failure to report the offence until accosted by the police several days later pointed not to an innocent association with his accomplices on the run. This was coupled with the fact that the appellant did not deny the presence of the weapons in his car reflected in count two or give a reasonable explanation thereto. The court did not decide one factor in isolation but conjunctively. The court indicated its consideration of the need to strike a balance the between interests of society and the liberty of the appellant. More so, given the rampant nature of the offences committed using the same modus operandi. It was guided by sections 117 (2) (a) (iv) and 117 (2) (b) of the Criminal Procedure and Evidence Act [Chapter 9:07] which relates to the factors to be taken into account when assessing the risk of abscondment. The fact that he then surrendered himself to the police is negated. He had no choice, as his car had already been impounded with the instruments in question. The net was getting closer to his door step, thus such surrender cannot be construed as an indication that he will stand trial and not abscond.

That being the case, the appellant has failed to demonstrate, that the Court a quo, erred or misdirected itself   in denying him bail. He has also not succeeded in establishing on a balance of probabilities that it is in the interests of justice for him to be released on bail given the prevalence of the offence he is facing his involvement, as well as, that of his vehicle. The court was correct in dismissing his contradictory defence.

Therefore, it is my finding that, the court did not err or misdirect itself when it rejected the consent. It also did not err when it made a finding that there were compelling reasons justifying the appellant’s continued detention.

Accordingly, the appeal against bail is dismissed.

Samundombe and Partners Legal practitioners, for the Appellant
National Prosecuting Authority, for the State