Partson Zambure & 10 Ors v The State

### Preamble
1
HCC18-22
B199/22
---------


PARTSON ZAMBURE

AND

KUDZAI CHIKWEZVERO

AND

AARON DHOKOTERA

AND

WINSTON CHIKWEZVERO

AND

TATENDA KADEMAUNGA

AND

KENNETH NDAWU

Versus

THE STATE

2. MUNYARADZI TAUYA

AND

NYASHA TAUYA

AND

SIMON MAKOTA

AND

NKOSILATHI GONYORA

AND

KEVIN BUNDO

Versus

THE STATE

HIGH COURT OF ZIMBABWE

MUZOFA J

CHINHOYI 22 & 30 June 2022

Bail pending trial.

J Mangeyi,  for the 1st – 5th applicants

& I Muchini  for the 6th – 11th  applicants

TH Maromo with GT Dhamusi, for the respondent

Bail pending trial

MUZOFA J:	The applicants were placed on remand jointly charged on one count of armed robbery as defined in s126 of the Criminal Law (Codification and Reform) Act (Chapter 9:23 ) and one count of unlawful possession of a firearm without a licence in contravention of s4(1) of the Firearms Act  (Chapter 10:09). They applied for bail pending trial separately. For convenience, the two records were consolidated by consent for the purposes of disposing of the application.

The state alleges that on the 17th of August 2022 the applicants acting in common purpose with four others who are still at large went to Huka Mining Solutions, Chinhoyi armed with machetes, an iron rod, a Colombia knife and a CZ pistol. On arrival they attacked the security guards and subdued them .They then offloaded 350 kilograms of pregnant carbons and loaded them in sacks. They took them to Tynwald Elution Plant where they were allegedly arrested in the process of smelting the stolen pregnant carbons.

In their bail statements the applicants aver that they are proper candidates for bail. They indicated that they will not abscond and they have fixed places of abode. They further state that although they are facing serious offences, the state case is very weak that there are no prospects of a conviction. They neither have pending cases nor were they ever convicted on similar offences. They will not interfere with witnesses who are predominantly the police and the complainant. They totally deny the charges.

In opposing bail, the respondent relied on the Form 242, (Request for Remand Form) and also called the investigating officer to give evidence. The following were listed on the Request for Remand Form (242) as the reasons for opposing bail.

That the applicants were likely to abscond taking into consideration the strong case against them.

Applicant Aaron Dhokotera is on a warrant of arrest on a robbery case at Kadoma CID DR 22-3/03/20 and Kadoma CR 58-9/3/20.

Applicant Partson Zambure and Kevin Bundo are likely to interfere with witnesses as some of the state witnesses are their workmates.

The two security guards assaulted during the robbery are still at Chinhoyi Provincial Hospital and their conditions are uncertain.

The condition of the  two security guards who were assaulted during the robbery was said to have improved. According to the investigating officer one of them was discharged and one is still in hospital nursing broken ribs. It would appear there is no threat to life as matters stand.

Since the respondent’s main objection to bail is that the applicants are likely to abscond, the thrust of the investigating officer’s evidence was to establish the strength of the state case against the applicants.

Section 117 (2) of the Criminal Procedure and Evidence Act (Chapter 9:07) ‘ the Act’ sets out what the court must take into consideration in such an application. It provides that:

“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 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 jeoperdise the objectives or proper functioning of the criminal justice system, including the bail system; ….”

In State v Biti 2002 (1) ZLR 115 (H), NDOU J laid down the position as follows at page 117:

“It is trite that in bail applications the primary question for consideration is whether the applicant will stand trial or abscond.  Of equal importance, however is whether the applicant will influence the fairness of the trial by intimidating witnesses or interfering with evidence.”

The interest of justice is that persons accused of committing an offence are tried within a reasonable time. Their attendance for trial is therefore paramount. If there is evidence that an accused is likely to abscond thereby jeopardizing the interest of justice, bail maybe denied.

Section 117 3 (b) of the Act, details what the court should take into account in considering the likelihood to abscond. The  Court takes into account the ties the accused has with the place of trial, any assets held by the accused, possession of travel documents, the nature and gravity of the offence and the likely penalty, the strength of the state case and the corresponding incentive to abscond and other relevant factors.

Generally, where the State has a strong case against the accused person, having taken into consideration the nature of the charge and the likely sentence, bail maybe denied.

In order to come to a proper determination in this case, the Court must consider the circumstances of the individual applicants.

Although on the on the Form 242 the investigating officer D/Sgt Maruka indicated that there was evidence from a CCTV footage showing how the offence was committed and the identities of the applicants. In court he said the CCTV footage does not show the faces of the perpetrators .They were putting on woollen hats covering their faces. It is disquieting that the investigating officer had initially sought to exaggerate the evidence against the applicants.

As matters stand, the CCTV footage does not provide any link or evidence against the applicants. Investigating officers must be reminded that their office requires uttermost good faith in the discharge of their duties. They are the primary officers of the court called upon to give information that helps the court to make judicious decisions in bail applications. It is highly undesirable to embellish evidence or to refer to unavailable evidence for purposes of denying the accused persons bail. Such an approach must be censured.

The court appreciates both counsel for the applicants’ concerted effort to attack the investigating officer’s credibility. He misrepresented facts on the CCTV evidence. They urged the court to disregard his evidence even on other issues as either exaggerated or concocted. I am not inclined to disregard his evidence in its totality because some of it is corroborated by some of the applicants as l will demonstrate later in the judgment.

I shall address the cases separately.

Case Number B199/22

The applicants aver that the state case against them is very weak. They claim that on the 18th of August 2022 they were arrested whilst seated near a certain bar in Tynwald. They were waiting for their uncle. They were not arrested at the Tynwald Elution Plant. They do not know this Elution Plant. It is alleged that the police arrested everyone who was near the bar. Harare residents were released and all those from Chinhoyi were detained and subsequently placed on remand.

Besides the evidence of the applicants’ arrest at the Tynwald Elution Plant with the exception of Kenneth Ndawu, the investigating officer said they have evidence from Econet that shows Partson, Simon and Tatenda’s movements between 16 and 18 August 2022. They   were in Chinhoyi, then Zvimba and then Tynwald. This coincides with the route used to ferry the pregnant carbons from Chinhoyi. It was taken to a village in Zvimba then to Tynwald. This evidence was not disputed. Outstanding is a report from Netone for the other applicants.

When the applicants went to Zvimba and offloaded the loot and re loaded it in another truck they were observed by some villagers who can testify to the identity of the persons at the village. This evidence was also not disputed.

It is also alleged that when transport was secured from Chinhoyi by Simon and Nkosilathi they took Munyaradzi, Kudzai and Nyasha into town to purchase fuel. From town on their way to the scene of crime they picked Aaron, Winston and Tatenda.

In addition, the investigation officer alluded to the fact that Munyaradzi, Nyasha, Simon and Nkosilathi are artisanal miners. They have no fixed places of abode from where they operate. It would appear that this point was not disputed. I say this because under cross examination the applicant’s legal practitioner asked the investigation officer if the applicants undertake to remain in Gokwe and do their mining there would bail remain opposed.

The respondent argued that, as artisanal miners the said applicants are likely to abscond as they move from one place to another in search of gold. I agree with the submissions. Generally artisanal miners have no fixed places of abode. They live where they mine their gold. They do the mining wherever the gold can be found. The nature of their job is very fluid. They move from one place to another. They cannot be trusted to remain in one place.

According to the investigating officer, when the robbery took place the applicants also took Kenneth, the 6th applicant’s cellphone. He is a security guard at the complainant mine. He was on duty when the offence was committed .The state case against him is that he gave information about the pregnant carbons. The investigating officer believes that the taking of his cellphone was just a cover up since they were worked in cahoots in the robbery. Besides that suspicion there is no tangible evidence that he was involved in the robbery. He did not travel with the loot to Zvimba and to its final destination in Tynwald. He was not arrested at Tynwald where the other applicants were arrested. I do not believe the state has a strong case against Kenneth.

Case Number B200/22

The applicants except for Kevin explained that they were hired by someone only known as Kedha, no further particulars were given, to load the pregnant carbons for transportation from Chinhoyi to Harare. However they could not supply any further particulars of the person. Kedha therefore cannot be located due to lack of sufficient details. They confirm the investigation officer’s evidence that they were involved in the transportation of the pregnant carbons. They also confirm that the pregnant carbons were taken to some village in Zvimba and then transported to Tynwald in Harare. They were arrested at the Tynwald Elution Plant where the pregnant carbons were being smelted. One wonders why they would remain at the Elution plant if they were just hired. There can be only one inference, that they were the joint owners of the pregnant carbons.

According to the investigating officer the applicants were ordered by the police to collect their belongings from the Elution Plant since they had spent the night there. Partson took a satchel which had Nkosilathi and Simon’ sweaters. This piece of evidence shows that they were together at some point.

I have no doubt that the state case against the applicants is fairly strong. There was no reasonable explanation of their involvement with the pregnant carbons.

Kevin Bundo is employed at the complainant’s mine as a security guard. When the offence was committed he was off duty. According to the investigating officer, he was implicated by some of the applicants. As fate will have it, none of the applicants in their bail applications admitted the offence and implicated him. He was not in Harare at Tynwald Elution Plant when the other applicants were  arrested. There is no evidence linking him to the offence except of the alleged implication.

In the final, it is my view that the applicants are facing a serious offence. The evidence against Partson, Munyaradzi, Kudzai, Simon, Aaron, Nkosilathi, Winston and Tatenda is strong. They face a lengthy period of imprisonment upon conviction and this can incentivise them to abscond. It is trite that, at this stage, the presumption of innocence operates in applicants’ favour, however the Court is empowered by the law to assess the strength of the state case and upon consideration of all facts deny them bail.

As already stated Kevin and Kenneth are security guards at the complainant mine. It is suspected that they provided inside information about the pregnant carbons. However in respect of Kevin there is no evidence linking him to the offence except for a strong suspicion. Similarly for Kenneth there is no evidence. The investigating officer stated that a report on Kenneth’s movements from the phone has not been recovered. The applicant cannot be denied bail based on anticipated evidence. The results may be either way. There is no reason to deny the two bail.

Accordingly the following order is made.

Under B199/22

The application for bail pending trial in respect of  1st ,2nd ,3rd ,4th ,5th and 6th applicants that is Partson Zambure , Kudzai Chikwezvero , Aaron  Dhokotera ,Winston Chikwezvero  and Tatenda Kademaunga be and is hereby dismissed.

The  7th applicant Kenneth Ndawu be and is hereby granted bail pending trial  in the following terms,

That he deposits bail in the sum of RTGS $10 000.00 with the Clerk of Court Chinhoyi Magistrates Court.

That he resides at Kenworth village, Chief Magonde, Golden Kopje, Chinhoyi until this matter has been finalized.

That he does not interfere with witnesses and or evidence.

That he reports once every week on Friday between the hours of 6am and 6pm at CID Chinhoyi until the finalization of this matter.

Under B200/22

The application for bail pending trial be and is hereby dismissed in respect of  Munyaradzi Tauya, Nyasha Tauya ,Simon Makota and Nkosilathi Gonyora

The application  be and is hereby  granted in respect of Kevin Bundo as follows,

The applicant is to deposit bail in the sum of $50000 to the clerk of Court, Chinhoyi Magistrates Court.

The applicant is to reside at Plot 9 Agile, Golden Kopje Farm, Chinhoyi until the matter is finalized.

The applicant is to report once on the last Friday of each month at  Chinhoyi Rural Police Station until the trial is finalized

National Prosecuting Authority, respondent’s legal practitioners.

Mangeyi Law Chambers, 1st - 6th applicants’ legal practitioners.

Kachere Legal Practitioners , 7th – 11th applicants’ legal practitiners.