Judgment record
Elton Mangoma v The State
HH 74-11HH 74-112011
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HH 74-11
B 317/2011
ELTON MANGOMA
versus
THE STATE
HIGH COURT OF ZIMBABWE
KUDYA J
HARARE, 15 March 2011
Bail application
S. Hwacha, for the applicant
C. Mutangadura, for the respondent
KUDYA J: This is an application for bail pending trial. On 11 March 2011 the
applicant was indicted by the magistrate sitting at Harare for trial on 28 March 2011 at
the High Court. As he was mandated to do by s 66 (2) of the Criminal Procedure and
Evidence Act [Cap 9:07], the indicting magistrate committed him to prison pending trial.
The same provision allows the applicant to seek bail if he so desires, hence the present
application.
In our law, the onus lies on the applicant to show on a balance of probabilities that
he is a suitable candidate for admission to bail. See Aitken & Anor v Attorney-General
1992 (1) ZLR 249 (S) at 253D; S v Makamba (3) 2004 (1) ZLR 367 (S) 369F. The basic
principles for admission to bail were crystallized by CHIDYAUSIKU CJ in S v Jongwe
2002 (2) ZLR 209 (S) at 214G-215D thus:
“In the case of Aitken & Anor v Attorney-General 1992 (1) ZLR 249 (S) this Court
reviewed a long line of cases and laid down the following guiding principles for the
determination of bail applications:
(a) That the Supreme Court can only interfere with a High Court decision if there
has been a misdirection or irregularity in the High Court or if the judge had
exercised his discretion in a manner which was so unreasonable as to vitiate
the decision reached.
(b) That when dealing with the matter of bail the court has to strike a balance
between the liberty of the accused and the State’s need to ensure that the
person stands trial and does not interfere with the course of justice
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(c) That the onus is on the accused to show on a balance of probabilities why it is
in the interests of justice that he should be freed on bail, but that the amount of
evidence necessary for him to discharge this onus would vary according to the
circumstances of each case.
(d) That in judging the risk that an accused person would abscond the court
should be guided by the following factors:
(i) the nature of the charge and the severity of the punishment likely to be
imposed on the accused upon conviction;
(ii) the apparent strength or weaknesses of the State case;
(iii) the accused’s ability to reach another country and the absence of
extradition facilities from the other countries;
(iv) the accused’s previous behaviour;
(v) the credibility of the accused’s own assurance of his intention and
motivation to remain and stand trial;
(e) That the risk of interference with investigation if alleged must be well founded
and not based on unsubstantiated allegation and suspicion.”
These principles are set out in more detail in Part IX of the Criminal Procedure
and Evidence Act, supra, especially in sections 116 and117. The format of a bail
application is the subject of s 117A of the same Act.
In the present matter while the applicant averred that he was a suitable candidate
for admission to bail, the respondent opposed bail on two grounds. The first was that the
applicant was a flight risk and the second was that there existed a real likelihood that he
would interfere with State witnesses. In resolving this dispute, I will apply the principles
set out in Aitken’s case and approved in Jongwe’s case, supra.
The applicant set out the basis why he considers himself a suitable candidate for
admission to bail. He firstly dwells on his personal circumstances, which by the way, are
common cause. He is a 55 year old Zimbabwean national who resides at a house in
Harare with his family. He is a chartered accountant. He is the Minister of Energy and
Power Development in the inclusive government of the Republic of Zimbabwe. He is the
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Deputy Treasurer General and acts as the treasurer general in the absence of the
incumbent in the Movement for Democratic Change (T), a political party which forms
one of the tripod of the inclusive government.
Mr Hwacha, for the applicant, contended that his roots are firmly embedded in
Zimbabwean soil and submitted that because of them, he had no desire or inclination to
leave his homeland. Mr Mutangadura, for the respondent, submitted that those personal
circumstances were a double edged sword whose other edge would impel him as a
sophisticated, resourceful and highly mobile individual to leave our borders and set up a
new home abroad without difficulty. Thus while the applicant averred that he was not a
flight risk by virtue of his standing, the respondent submitted that he posed such a risk
precisely because of it.
Mr Hwacha countered by contending that the applicant had no cause to run away
from the jurisdiction of this court because the case he is facing is not only weak but is in
reality non-existent. Mr Mutangadura countervailed by contending that the case against
him was so strong that conviction was certain and the impulse to flee high. It must be said
that he deliberately avoided making any reference to the punishment that would visit the
applicant on conviction.
The first argument embosses consideration (d) of the Jongwe formulation set out above. I
turn to apply its constituent elements to the present application.
On the nature of the charge and the severity of the punishment likely to be imposed on
the accused upon conviction and strength or weakness of the state case Mr Hwacha
contended that the state case was so weak that the likelihood of a conviction was absent.
The state case is that the applicant abused his office by ordering his subordinates to
procure fuel from a South African company in breach of the provisions of the
Procurement Act [Cap 22:14] and its regulations. It was specifically alleged that he
contravened s 174 (2) as read with s 174 (2) of the Criminal Law (Codification and
Reform) Act [Cap 9:23] that in his capacity as the Minister and therefore a public officer
he directed the Acting Chief Executive Officer of PetroTrade to purchase five million
litres of diesel from Nooa Petroleum (Pty) Ltd without going to tender in order to show
favour to Nooa whilst showing disfavor to approved companies duly Gazetted. In the
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alternative he will be charged with contravening s 30 of the Procurement Act as read with
s 5 (4) (a) (ii) and s 35 of the Procurement Regulations SI 171/2002 in that he instructed
PetroTrade to purchase 5 million litres of diesel from Nooa without going to tender, a
condition precedent for all purchases above US$50 000.00.
The main charge carries a maximum financial penalty of level 14(US$5 000.00) or
imprisonment not exceeding fifteen years while the alternative carries a maximum
financial penalty of level eight (US$600.00) or imprisonment not exceeding two years.
The maximum sentence is reserved for the most serious infraction. It is not in
doubt that the offence is serious regard being had to the allegations of abuse of office by
a cabinet minister. The sentence to be imposed will be a function of conviction. Mr
Hwacha contended that the framed charge is out of sync with the facts sought to be
proved at the trial as set out in the summary of state case. The incriminating evidence at
the trial will consist of the oral versions of the personnel who came into contact with the
minister during the discussions leading to the purchase of fuel. These have been
identified as his permanent secretary, his director of procurement and the acting chief
executive officer of PetroTrade. In addition the respondent will rely heavily on the letter
signed by the minister authorizing the purchase of the diesel without going to tender. The
scanty facts before me suggest that fuel was purchased after the conclusion of a supply
agreement between PetroTrade and Mowhelere from Mowhelere. The link between the
supplier and Nooa is not established in the scanty facts. Mr Mutangadura did not respond
to this apparent lacuna in the facts. The failure to address this gap in the allegations in the
bail application undermines the respondent’s averment that it has a strong and water tight
case against the applicant.
The other submission made on behalf of the applicant which tends to undermine the
strength of the respondent’s case will be the legal argument concerning whether
PetroTrade is a procuring entity as defined in the Procurement Act. It is a private
company which is distinct in law from procuring entities defined in section 2 of the
Procurement Act. It is not the State Procurement Board, Ministry, department or other
division of the Government; or a statutory body that engages in procurement or any local
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authority or other person declared in terms of subsection (2) to be a procuring entity. The
respondent may have an uphill battle to establish that PetroTrade is a procurement entity.
To the extent that these are concrete as opposed to fanciful factors that the
respondent will have to contend with, its case against the applicant cannot be said to be
strong.
There is another factor which affects the strength of the respondent’s case. It is
that some of the witnesses it seeks to rely on, to the extent that they appreciated their
actions were unlawful, may properly be regarded as accomplice witnesses. The caution
with which their evidence will be treated may affect its probative value and thus further
weaken the respondent’s case. The credibility of witnesses will assume prominence at the
trial. That the applicant may be telling the truth that he did not raise the incriminating
letter may be true regard being had to the reproduction in the respondent’s opposing
papers. An official does not copy to himself a letter he has written as appears in the
reproduction.
I agree with the sentiments expressed by GWAUNZA JA, cited by Mr Mutangadura, in
Kuruneri v State SC 40/2004 at page 4 of the cyclostyled judgment. It reads:
“Although every case must be determined on its own merits, this Court has held
in Aitken & Anor v Attorney General 1992 (1) ZLR 249 at 253 that although the
court must heed such an averment, implicit reliance cannot be placed on the
appellant’s mere say so. This is because, the court noted, an accused who harbors
an intention to abscond is not likely to admit it.”
And at the bottom the LEARNED JUDGE OF APPEAL quoted the judgment of Aitken
that:
“On the other three charges (relating to Exchange Control) I have found that the
State’s case is quite strong, the applicant’ explanation very weak or even
improbable, the charges are very serious and the punishment upon conviction is
likely to be severe as to induce the applicant who has both substantial means,
family, friends and connections abroad, to abscond.”
Those sentiments applied to Aitken. They do not apply in the present matter. In my
respectful view, the State case appears to me to be weak. It is not the type of case that
would induce the applicant to abscond. I was not addressed on punishment if convicted. I
proffer no opinion on the likely punishment if he is convicted. But it seems to me that in
the absence of evidence that the applicant personally benefited from the deal, his actions
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were prompted by a national crisis. As Minister responsible for energy all Zimbabweans
looked up to him to provide a quick solution to the problem. His well meaning response
to a national emergency may prove highly mitigatory. Courts do accept that at times
paths to hell are often paved with good intentions. Those good intentions may prove
highly mitigatory.
As regards his mobility and ability to reach other countries without extradition;
this factor was mentioned in passing and was not really debated. I was asked to surmise
that because of his political standing he may easily run away. I note in passing that the
extent of his connections abroad was not provided. Both Makamba and Kuruneri’s
foreign assets were provided by the respondent. In the present matter no such concrete
facts were placed before me. I am therefore not able to conclude that he will be able to
run away to countries that are beyond the reach of Zimbabwean law enforcement
agencies.
His previous behaviour has not portrayed him as a flight risk. There is no
evidence that he attempted to flee or avoid his arrest notwithstanding that he may have
suspected that it was imminent.
In the light of my findings on strength or lack thereof of the State case, factors raised by
his counsel, I accept that he has no motivation to evade justice. His assurances that he
will abide by any bail conditions imposed do carry weight.
The second ground for opposing bail was that he would interfere with witnesses
who are his subordinates. Such an averment must be backed by tangible facts. None were
laid before me. It has not been shown that he tried to muzzle any of his officers. It does
not seem to me that the witnesses that have been lined up against him are the type that he
would easily intimidate or attempt to suborn. He would do so at the peril of his liberty. In
any event the fact that he has been indicted for trial shows that all investigations are
complete.
I am therefore satisfied that the applicant is not a flight risk. I am also satisfied
that he will not interfere with any of the State witnesses. Accordingly, he is a good
candidate for admission to bail.
He is granted bail pending trial.
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It is ordered that:
1. The applicant be and is hereby admitted to bail in the sum of US$5 000.00 to be
deposited with the clerk of court at Harare Magistrates Court
2. The applicant shall reside at No. 25 Pendennis Road Mount Pleasant, Harare,
pending the final determination of his trial.
3. He shall report at Marlborough police station once a week every Wednesday
between the hours of 0600 and 1800.
4. The applicant shall surrender his passport to the clerk of court Harare magistrate
Court Harare.
5. He does not interfere with any state witnesses set out in the indictment papers.
Dube, Manikai &Hwacha, applicant’s legal practitioners
Criminal Division of the Attorney General’s Office, respondent’s legal practitioners