Getrude Marambanyika v The State

### Preamble
1
HH 285-21
HACC(B) 25/21
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GETRUDE MARAMBANYIKA

versus

THE STATE

HIGH COURT OF ZIMBABWE

CHIKOWERO J

HARARE, 3 June 2021 & 11 June 2021

Bail Appeal

C. Tatira, for the appellant

F. Kachidza, for the respondent

CHIKOWERO J: This is an appeal against the refusal of bail. Appellant is facing a charge of fraud as defined in s 136 of the Criminal Law (Codification and Reform) Act [Chapter 9:23] (the Code).

FACTUAL BACKGROUND

The allegations are that in connivance with her co-accused the two submitted a forged passport application form together with forged supporting documents to a Passport Officer at the passport office in Harare. Their intention was to misrepresent to the relevant officer that the documents were genuine thereby inducing her to issue the passport to the prejudice of the good administration of the passport office.

It was common cause that the person who appeared at the passport office, and submitted the documents, was not the appellant. It was her co-accused.

The annexure to the Request for Remand Form sets out the circumstances of the offence as follows.

The documents were duly received by the passport officer, for processing of the application. The application form bore the name of one Cynara Tanaka Maxine Nyahoda, who was reflected thereon as being in South Africa.

All the documents bore the date stamp of the Zimbabwe Consul General, South Africa. This meant the documents were purportedly processed and issued by that office. But the Passport Officer had concerns regarding the authenticity of the passport application form. She relayed these to the Senior Security Officer.

The latter verified the documents with the consulate’s office in South Africa. It was established that the application form was neither processed nor issued by the Consulate. The Civil Registry Security Staff arrested the co-accused.

They asked him to reveal where he had obtained the document in question. He stated that he had received the batch of documents from the appellant together with an instruction to appear at the passport office to apply for issuance of a passport.

The co-accused phoned the appellant. He made a request that the latter join him at the passport office to assist in the process of issuance of the passport. Appellant obliged. The Civil Registry Security Staff arrested the appellant.

Appellant alleged that she had handed over the documents to the co-accused for submission to the passport office since she had work commitments.

In due course the duo were brought before the magistrates court. They were placed on remand. The two engaged the same legal practitioner, who made a joint bail application on their behalf. The respondent opposed it. Evidence was led from the investigating officer. Counsel presented oral argument at the bail hearing. Stating its reasons, the court dismissed the application.

It found compelling reasons in the likelihood of abscondment by both the appellant and the co-accused. This stemmed from its view that the two were facing a serious charge coupled with a strong prosecution case. Since the prospect of conviction was high and the imposition of a long custodial sentence likely there was an inducement for the appellant not to stand trial. The inducement resided in the fear of incarceration. The use of fraudulent documents to apply for a passport indicated that the appellant had the propensity to unlawfully travel out of the country. It also showed that she could easily leave the country. Releasing her on bail on condition that she surrendered her passport to the Clerk of Court was not the panacea to abscondment. The allegations were evidence that she could easily acquire another passport. After all, the police had not yet recovered the tools used to forge the documents used to commit the offence. The source of those documents had not been established. The risk of the appellant fleeing the country was very high. The court was wary that she could join the other accomplice who was already on the run. If released, there was the likelihood of her making it harder for the police to arrest that accomplice as well as interfering in police efforts to recover the tools used to forge the documents. On the seriousness of the offence, the court expressed itself, at judgment p 6, as follows:

“The offence in question is a sophisticated one, one with a high degree of dishonesty where the accused persons planned about this and came up with the daring decision to go to the passport offices to surrender these documents. It is in light of this that the court believes that these circumstances would demonstrate or show that the accused persons are not people who can be trusted with bail.

So in the circumstances the court believes that the two accused persons are not suitable candidates for bail. Bail is therefore denied”.

As for the strength of the State case against the appellant the court made the following factual findings. Firstly, there was undisputed evidence that both the appellant and the co-accused were caught in possession of the forged documents which they had already submitted to a passport officer in an attempt to acquire a passport. While appellant was not at the passport office when the documents were submitted for processing, she was implicated by the co-accused. She did not dispute her involvement in the bid to attempt to acquire the passport. She had also possessed those documents.

Indeed, appellant did not dispute that she sent the co-accused to the passport office to apply for the passport. The appellant did not dissociate herself from the documents in question. The court took the view that this indicated the existence of prima facie evidence against the two.

The court accepted that the presumption of innocence operated in favour of the appellant. It observed that the presumption ought not to be overemphasised in this case in view of the fact that the respondent had established the existence of very strong evidence against the appellant and the high likelihood of a conviction.

I accept as proper Ms Kachidza’s concession that the court misdirected itself in ignoring the appellant’s defence in its assessment of the strength of the case for the prosecution. The result is that the court’s finding on this critical aspect was made without taking into account a relevant factor. This error puts me at large to exercise my own discretion on the question of bail, but using the same material as was before the Magistrates Court. See Barros v Chimponda 1999 (1) 58 (S).

Appellant’s defence was simply that she received the fraudulent documents from one Tapiwa Mvere. This explanation was put to the investigating officer under cross examination. His comments were that he had no such evidence. The prosecution case was founded on the appellant and her co-accused’s possession of the fraudulent documents and the duo’s submission of those documents to the passport officer.

Before assessing the strength of the State case in light of the appellant’s defence it is necessary to set out what exactly the forged documents were. They were, as outlined by the investigating officer:

a completed forged passport application form with a fake serial number.

a forged authorization letter purportedly authored by the Consul General instructing the Civil Registry to process the application for a passport.

a forged receipt purportedly issued by the Government of Zimbabwe reflecting that the co-accused had paid R300 for issuance of the passport application form.

a letter instructing appellant to process the application.

All the documents bore a fake date stamp. In addition the false serial number on the passport application form matched that on a genuine application form at the Gwanda Passport Office. The genuine form had, however, not been issued to anybody. The signature of the Consul General was also forged.

Tapiwa Mvere was not before the Magistrate. The evidence before that Court linked the appellant and her co-accused to the commission of the offence. Appellant is not employed at the passport office. Yet it was herself, and not Mvere, who appeared at the passport office to assist the co-accused in processing the passport application. She did not state how she would assist in that process. Appellant is connected to the co-accused, to the forged documents, to the scene of the commission of the offence and ultimately to the commission of the offence itself. Even after factoring in her defence I still agree with the magistrate that the respondent has a very strong case against the appellant. Most of the fundamental facts are common cause. I agree that the appellant did not dissociate herself from the offence. Instead, my opinion is that there are high prospects of her being found to have made common purpose with the co-accused in committing the offence. The fake serial number links another passport office (Gwanda) with this offence. Appellant possessed the forged application form bearing the false serial number. She then went to another passport office, (Harare) to “assist” in processing the application for the passport. I am with Mr Tatira in so far as he said that her defence, wherein she ropes in Mvere, represents an attempt to dissociate herself from the commission of the offence. Her problem is, despite the mention of Mvere, she features prominently in the commission of this intricate offence. Her footprints are quite visible. On the evidence placed before the magistrate she is a vital link in the chain. The result is that, despite the misdirection in not considering her defence the magistrate’s finding that the prosecution has a strong case against the appellant is one that I share.

I also agree with the court below that the offence is serious. I associate myself with the reasons given for that view.

I too am persuaded that there is a real prospect of the appellant being convicted, being sentenced to a long custodial term and hence the high risk of appellant not standing trial to avoid incarceration.

Appellant neither offered to deposit any amount as bail nor did she suggest any conditions beyond surrendering of the passport. Therefore, I am confined to a consideration of the condition to surrender her passport. The reasons given a quo for rejecting the proposed condition to surrender the passport are, in my view, sound. I adopt those reasons.

Appellant’s personal circumstances are outweighed by the reasons militating against her release on bail. The reasons justifying her continued detention pending trial are forceful and convincing as to lead this court to the conclusion that the appellant should not be released on bail.

In the result, the appeal against bail refusal be and is dismissed.

Messrs Mangeyi Law Chambers, appellant’s legal practitioners

National Prosecuting Authority, respondent’s legal representatives