Chikwata Taurai v The State

### Preamble
1
HH 371-21
B463/21
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CHIKWATA TAURAI

versus

THE STATE

HIGH COURT OF ZIMBABWE

MUSITHU J

HARARE, 16 April 2021 & 15 July 2021

Bail Pending Trial

Applicant in person

H. Huni, for the respondent

MUSITHU J:

BACKGROUND

On 8 March 2021, the applicant filed an application for bail pending trial on one count of robbery and another count of attempted rape. The matter was only argued on 16 April 2021 after several postponements. I dismissed the application and gave brief reasons in court. The applicant has requested detailed reasons for the dismissal of his application to enable him to progress the matter further. The following are the reasons.

The applicant was charged with one count of robbery as defined in section 126(1)(a) of the Criminal Law (Codification and Reform) Act, (the Act), and one count of attempted rape as defined in section 189, as read together with section 65 of the Act. The applicant first appeared at the Bindura Magistrates Court for his remand hearing on 12 January 2021. The allegations as captured in the Form 242 were as follows:

“On 27/08/20 around 0015hrs at 569 HAY EAST, BINDURA, the accused person in the company 	of his accomplices who are still at large connived and hatched a plan to rob the complainant 	Winstone Mukunde. The accused persons proceeded to complainant Winstone Mukunde’s place of 	residence where they used an unknown object to force open the dining room window and gained 	entry. Whilst inside the said premises accused and his accomplices proceeded to complainant’s 	bedroom where they manhandled him, assaulted him using an unknown object, threatened to shoot 	him using an unidentified pistol. The accused persons assaulted complainant’s grandchildren using 	unknown objects and open hands. The accused persons ransacked the house and unlawfully took 	cash amounting to US$11000, Samsung 42-inch television set, 4 cell phones namely Samsung S7 	edge, ECD Learners Laptop, Samsung galaxy tab 4, Mint, and Ecco cellphone, groceries, clothes 	and shoes. The accused person also attempted to rape complainant’s grandchildren Hlanganiso 	Mapfumo and Patience Mukunde by forcing them to remove their pants and stopping after 	discovering that they were on their menstrual cycle. The accused ordered the complainant to go 	back to his room and cover his face with blankets and the accused persons went away.”

As regards the evidence linking the applicant to the commission of the offence, the Form 242 indicated that the applicant was identified by witnesses as the person who robbed them. The applicant was also alleged to have made indications at the crime scene on how he and his accomplices committed the offence.

In his oral submissions, the applicant denied committing the alleged offences. He stated that he was a family man who wanted to be reunited with his family which was suffering in his absence. He also stated that the Police actually arrested him while he was at his house with his family. He denied being connected to the alleged offences since nothing was recovered from him.

The application was opposed.  In its bail response, the respondent averred that the applicant was facing serious offences. While the seriousness of an offence alone was not a ground to deny an applicant bail, the respondent contended that the possibility of a lengthy custodial sentence in the event of a conviction would likely induce the applicant to abscond if granted bail.  It was also submitted on behalf of the respondent that the applicant’s co-accused persons were still on the run. There was a likelihood of the applicant reuniting with them and committing more offences if admitted to bail. It was further submitted that the applicant was arrested following a raid by the police. He had evaded the police from August 2020 until January 2021 when he was cornered and arrested. It was further contended that the public would lose interest in the justice delivery system if the applicant was released on bail. He had evaded arrest for a long time, and the authorities had made tireless efforts to bring him to book.

In her oral submissions, Ms Huni submitted that the applicant was not only positively identified by the complainants, but he was also a danger to society given the manner of his arrest. Counsel further submitted that investigations had since been concluded and the matter was ripe for trial at the Bindura Magistrates Court. The trial could not commence because the applicant had been transferred to Harare from Bindura Prison for his bail hearing. The court was also referred to the affidavit of the investigating officer, Never Milton Lisita. The investigating officer gave graphic details of how the offences were committed. The applicant and his accomplices allegedly drove to Bindura using a Toyota Ipsum. They were armed with an unidentified pistol and iron bars. The accused persons left their gate away vehicle parked at the ZAOGA Cathedral, which is about 700 metres from the crime scene. One of the accomplices, James Kambako was left guarding the vehicle. On arriving at the crime scene, the applicant who was allegedly in the company of Iyeni Njanji and one Sam forced their way into the house, and proceeded to the complainant’s bedroom. The applicant assaulted the complainant, a senior citizen with an unknown object and demanded cash. The applicant and his accomplices then tied the complainant’s hands and legs using some curtain material. They also tied the complainant’s nephew aged nine (9) years.

The accused persons entered a spare bedroom where Hlanganiso Mapfumo, Blessed Kanyemba and Patience Mukunde were sleeping. They threatened the trio and ordered them to cover their heads with blankets. The applicant and Sam then force marched Hlanganiso Mapfumo into a bathroom and took turns to kiss her and fondle her breasts. When they tried to rape her, they discovered that she was on her menstrual period. They ordered her to return to the spare bedroom where they tied her hands and legs with a cloth. They also assaulted her on her buttocks with a button stick and took away her Eco Mobile phone. They also took away Patience Makunde’s Samsung Galaxy tablet. Iyeni Njanji also force marched Patience Makunde into the kitchen and attempted to rape her. He only stopped after she pleaded with him not to rape her because of her age. The accused persons tied her hands and legs. They also tied the hands and legs of Bessy Makunde, a six year old girl. The accused persons also ransacked another bedroom and stole US$11 000.00 which was hidden in a small pillow.  They also stole a Samsung Galaxy S7 Edge cellphone, a 48 inch plasma television and a PVR decoder. Also stolen were various items of clothing, blankets and groceries.

The complainant made a report at Bindura Central Police station. Investigations led to the recovery of Blessed Kanyemba’s cellphone from a person who had bought it from a cell phone vendor. The cell phone vendor in turn implicated accused person Iyeni Njanji as the person who had sold the cell phone to him. Further investigations led to the arrest of James Kambako from his place of residence. He was found in possession of a Samsung S7 Edge cellphone, Mint cellphone and an ECD Learners laptop. James Kambako implicated the applicant, Iyeni Njanji and Sam. Kambako was also taken to the crime scene where he made indications on how the crimes were committed. On 10 January 2021, the police received information on the whereabouts of the applicant. When they tried to arrest him, he became violent and struck the investigating officer with an iron bar. The applicant escaped from the house and charged towards the detectives who were waiting outside the house with an iron bar. The detectives fired warning shots but he kept advancing towards them forcing them to shoot at him in the legs in order to subdue him and arrest him. The applicant was also taken to the crime scene where he made indications on how the offences were committed.

According to the investigating officer, the applicant was identified by witnesses at an informal identification parade as the one who had robbed them and also attempted to rape Hlanganiso Mapfumo. The property recovered was positively identified by the complainants. The total value of the property stolen was US$20 000.00, and only property valued at US$1500.00 was recovered. The investigating officer advised that the applicant’s trial was supposed to commence on 8 April 2021. He opposed the granting of bail to the applicant for the following reasons: the seriousness of the offence was likely to induce an abscondment in light of the lengthy custodial sentence it attracted in the event of a conviction; two of the applicant’s accomplices were still at large, and there was a likelihood that if the applicant was released on bail he would team up with the accomplices and continue committing more crimes; the applicant was arrested after a police raid and he resisted arrest. He also assaulted the investigating officer during the attempt to arrest him; when the applicant escaped from his house through the window, he threatened to assault detective constables Nyakambiri and Chirimire using an iron bar that he was wielding. He was only arrested after the police used minimum force.

In reply, the applicant insisted that he did not commit the offences. He also submitted that after arresting him, the police took him to the complainant’s house and they told the complainant that they had arrested the person who had committed the offences. According to him, the complainants never positively identified him.

THE LAW

In terms of section 115C (2) of the Criminal Procedure and Evidence Act, where an accused person is in custody in respect of an offence applies to be admitted to bail before he has been convicted of that offence, then the State shall bear the burden of showing on a balance of probabilities, that there are compelling reasons justifying his or her continued detention. There is a limitation though. The offence must not be one of those specified in the Third Schedule to the said Act. Compelling reasons are set out in section 115(C) of the Criminal Procedure and Evidence Act, as read with s 117(2) thereof. These were articulated by mafusire j in Chipetu v State.

ANALYSIS

It is common cause that robbery, which is one of the charges the applicant faces, is a Third Schedule offence. The applicant bears the burden to show on a balance of probabilities that it is in the interests of justice that he be released on bail.

Applicant denied having committed the offences, which culminated in him being arraigned before the court a quo on remand. The allegations that were placed before the remand court were not challenged, and this court has no reason to disbelieve them. The applicant did not address the court on the circumstances surrounding his arrest as demonstrated by the investigating officer in his affidavit. Further, in his submissions, the applicant did not attempt to allay the respondent’s fears about the risk of abscondment in the event that he was granted bail. In Kondo & Ano v The State, chitapi j had this to say about what is expected of an applicant in this position:

“The applicants in this case did not provide any evidence to demonstrate that it is in the interests 	of justice that they be admitted to bail. For example they simply stated that they are of fixed abode 	and are not a flight risk. Evidence means connotes the placing facts before the court which indicate 	that what is being alleged is true. If a person for example said that he owns a car that is not evidence. 	If he produces the car and documents showing that the car is his that is evidence. The applicants 	could also have deposed to sworn dispositions of their assertions in order that the court may attach 	weight to them. It is to be observed that where the State bears the onus of satisfying the court that 	bail be granted or where it seeks to demonstrate compelling reasons, it invariably produces an 	affidavit by the investigating offer. The reason for this is because sworn testimony or evidence 	carries more weight than unsworn statements. I will proceed in my determination of the application 	on the basis that the applicants elected to simply make statements in support of their bail application 	despite the provisions of s 117 (6) (a) of the Criminal Procedure & Evidence which require that the 	applicant charged with a Part 1 Third Schedule offence should adduce evidence to motivate his 	application and satisfy the court or judge of the existence of such circumstances exceptional or 	otherwise as permit his release on bail in the interests of justice.

I agree with the learned judge’s views entirely. The applicant did not address the allegations made against him by the investigating officer as set out in the investigating officer’s affidavit. His response was terse, bereft of detail and unhelpful to his cause. The circumstances of the applicant’s arrest as explained in the affidavit, and his connection to the offence make him a flight risk. The fact that the police had to use minimum force to subdue and arrest him makes him a danger to the community, and there is a real likelihood that his release on bail will disturb public order, as well as undermine public peace and security. It was for the foregoing reasons that the court was satisfied that applicant had failed to discharge the onus reposed on him to show on a balance of probabilities that it was in the interests of justice that he be admitted to bail. It is this court’s considered view that it is not in the interests of justice that the applicant be released on bail pending trial. For the foregoing reasons, the application must consequently fail.

DISPOSITION

Accordingly, it is ordered that:

The application for bail pending trial is hereby dismissed.

National Prosecuting Authority, respondent’s legal practitioners