Herbert Gomba v The State

### Preamble
1
HH 139-21
HACC (B) 12/21
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HERBERT GOMBA

versus

THE STATE

HIGH COURT OF ZIMBABWE

CHIKOWERO J

HARARE, 24 March 2021 & 30 March 2021

Bail Application

A Mugiya, for the applicant

R Nyamombe, for the respondent

CHIKOWERO J:  This is an application for bail pending trial, made in terms of s 116 (a) of the Criminal Procedure and Evidence Act [Chapter 9:07] (“the CPEA”) as read with this court’s bail rules.

The applicant, a former Mayor of the City of Harare, appeared before the Magistrates Court sitting at Harare on 13 March 2021 facing a charge of criminal abuse of duty as a public officer as defined in s 174 (1) (a) or (b) of the Criminal Law (Codification and Reform) Act [Chapter 9:23].

The allegations are that between 2018 and 2020, at a time when he was still the Mayor as well as being the Councillor for Glen Norah Ward 27, the applicant connived with the Head of the City’s Valuations Department, one Mutambirwa, to create commercial stands at Old Hararians Sports Club’s open space in Harare. During the subdivision process, applicant allegedly put pressure on the Head of the City’s Planning Division, one Nyabeze, to expedite the process of subdivision and sale of the stands. The pressure is said to have been applied through verbal instructions and phone calls made by the applicant to Nyabeze. It is alleged that applicant expressed an interest in one of the pieces of land for the purposes of running a fuel service station and was apprehensive that he would lose the opportunity were a Commission to be set up to run the affairs of the City before the land was subdivided and the subdivisions sold.

According to the respondent, the City’s Planning Division prepared a proposed subdivision plan which was taken through the necessary procedures to enable the City to lease the stands so created pending the process for change of use which, on completion, would enable the stands to be sold as commercial land. Nyabeze approved a proposed subdivision plan, TPF/CR/04/18, to lease the land only, pending a change of use of the land in question in terms of s 49 (3) and (4) of the Regional Town and Country Planning Act [Chapter 29:12] (“the RTCPA”).

Disregarding the condition precluding the sale of the stands before compliance with the relevant provisions of the RTCPA, the applicant is alleged to have connived with Mutambirwa and one Usingarawe (another employee of City of Harare) and sold the stands, as commercial land, to three companies owned by one family at a total price of RTGS$5 213 781.00. This was despite the fact that the land was reserved for recreation and public open space.

At the end of the day, therefore, the respondent alleges that applicant as Mayor acted unlawfully by unduly influencing council employees to sell the 3 stands as commercial land, without complying with the RTCPA’s requirements relating to change of use of the land in question.

Having been placed on remand, applicant filed an application for bail with the Registrar of this Court on 16 March 2021. After he had filed the record of the remand proceedings held a quo and the respondent had filed a written response to the bail application itself the matter was then set down for 24 March 2021 for hearing.

Respondent opposed the release of applicant on bail. It relied on its written response to which it attached the affidavit of one of the investigating officers, Maxwell Nyamapfeni. Respondent also relied on the testimony of Nyamapfeni. After cross-examining the investigating officer both Counsel made oral submissions. I reserved judgment.

The law on bail is settled. Besides case law the relevant provisions are s 50 (1) (d) of the Constitution of Zimbabwe Amendment (Number 20) Act 2013 and s 115 (1), (2) (a) (i) as well as s 117 of the CPEA.

I therefore apply the relevant legal principles to the facts of this matter.

WHETHER THE RESPONDENT PROVED, ON A BALANCE OF PROBALILITIES, THAT THERE IS A LIKELIHOOD OF APPLICANT ABSCONDING IF HE WERE ADMITTED TO BAIL

The respondent neither led evidence on, nor did it predicate its contention that applicant was likely to abscond on:

the ties of the applicant to the place of trial;

the existence and location of assets held by the applicant;

the applicant’s means of travel and his possession of or access to travel documents;

the efficacy of the amount or nature of the bail and enforceability of any bail condition.

This seems to me to mean that the respondent conceded, without necessarily saying so, that all things being equal, these factors are in favour of the applicant being admitted to bail on the basis that he is unlikely to abscond.

Instead, the respondent relied on the following factors to ground its submission that the applicant will not stand his trial or appear to receive his sentence:

the nature and gravity of the offence or the nature and gravity of the likely penalty therefor and;

the strength of the case for the prosecution and the corresponding incentive of the applicant to flee.

It was not disputed that this particular offence is serious and, if a conviction is secured, the imposition of a custodial sentence is virtually certain. But it is settled law that the seriousness of an offence is not on its own a reason to deny bail. See S v Hussey 1991 (2) ZLR 187 (S).

Respondent coupled the seriousness of the offence (and the attendant likelihood of a lengthy jail term) with what it submitted is a strong State case as likely to act as an incentive to the appellant, fearing conviction and imposition of such sentence, to abscond. The investigating officer testified that there were three witnesses who will testify that the applicant exerted pressure on Nyabeze to speed up the subdivision of the land in question and that the applicant was involved in the illegal sale of the three stands. It appears to be common cause that the stands were illegally sold, and that there is a paper trail speaking to the subdivision, sale and payment of the purchase price of the land in question. Applicant attached certain annexures to his bail statement. The first is what appears to be the first page of the town clerk’s report to the Finance Committee, dated 18 October 2019, wherein a recommendation is made that

“stand 4215 Harare Township of Salisbury Township be sold to Optel Enterprises (Private) Limited for fresh farm produce market purposes at an amount of RTGS$2 019 722 (Two Million and Nineteen Thousand Seven Hundred and Twenty-Two RTGS$) inclusive of 15% VAT with the full purchase price to be paid on signing of the sale agreement but otherwise the sale being subjected to provisions of s 153 of the Urban Councils Act [Chapter 29:15] and the City’s standard conditions of such sale.”

It is this stand which was then subdivided into three commercial stands, which were thereafter sold. The second is applicant’s letter, as Mayor, addressed to the town clerk. It is dated 3 December 2018. Therein the applicant makes reference to several objections having been received from the Combined Residents Association relating to the subdivisions, planning and allocation of land in all the city’s sporting facilities including golf courses and clubs. The applicant directed the town clerk to stop all planning processes and allocations in such facilities. Particular reference was made to Mount Pleasant Sports Club, Mcdonald Swimming Pool, Old Hararians Sports Club, Highlands Sports Club and Sherwood Golf Course. The third annexure is a letter dated 8 November 2018 wherein applicant was advising the then acting town clerk (Mutambirwa) that it had come to applicant’s attention that various classes of persons were abusing the former’s personal name and position as Mayor to curry favour with council in land allocation matters. Consequently, applicant stressed that due process must be followed in all matters of land allocation, without regard to the status of the person in need of land. The last annexure is a letter dated 16 March 2020 wherein applicant, again as Mayor, wrote to the town clerk to investigate circumstances surrounding the subdivision and sale of the land which is the subject of the charge he now faces.

Applicant’s defence is therefore a denial of his involvement in the subdivision and sale of the land in question. Instead, he says he relies on the annexures that I have referred to for contending that he was actually surprised to learn of the sale of the land. Mr Mugiya argued that the word of mouth of the alleged witnesses relating to appellant’s participation in the subdivision and sale of the land will not be able to survive the force of the applicant’s defence, buttressed by the annexures that I have made reference to.

I am aware that the investigating officer questioned the sincerity of the applicant in writing the annexures as no follow up appears to have been made by the latter to check whether the town clerk acted on the letter of 16 March 2020, and that the purchase price for the land in question was in fact paid in June 2020.

My view is this. I am sitting as a bail Court. It is at trial where all the evidence will be adduced, and tested. What was placed before me seems to be a rudimentary picture of the main matter. I consider that, at this stage, the scales appear to be evenly balanced. The result is that it would be remiss of me to find that the respondent established, on a balance of probabilities, that its case is so strong that there is a corresponding incentive for the applicant to flee. The respondent failed to satisfy me that there is a likelihood that applicant will flee if released on bail. The seriousness of the offence and the likely penalty, standing alone, cannot compel me to find for the respondent.

My finding is fortified by these additional pieces of evidence. They were not disputed by the respondent. Applicant is already on bail in CRB ACC 71/20, an offence arising from sale of council land allegedly committed during the same period, but he has not absconded. His alleged accomplices in the present matter were arrested a week earlier than him. He did not seize the opportunity to flee. Instead, he surrendered himself to the police on receiving a message that the police were looking for him.

WHETHER THE RESPONDENT ESTABLISHED THAT APPLICANT IS LIKELY TO INTERFERE WITH WITNESSES AND EVIDENCE

In my view no cogent evidence was placed before me to make a finding in favour of the respondent on this ground. That applicant was once a Mayor and Councillor, without more, is insufficient basis to find that he still has influence at Town House and therefore likely to interfere with his former subordinates. There was neither allegation nor evidence that he has, since ceasing to be Mayor and Councillor, attempted to interfere with any witness, former subordinate or otherwise. It is true that the investigating officer talked about a potential witness who allegedly disappeared after claiming to have received threatening phone calls from Council (at a time when applicant had vacated the Mayoral Office). What is important is that the investigating officer conceded, correctly in my view, that he was unable to link the alleged phone calls to the applicant. I think it would be an injudicious exercise of discretion if I were to ground a finding that there is a likehood of applicant interfering with the investigations and evidence on an assumption that the applicant may very well have sympathizers at Council. After all, the respondent’s witness failed to mention the name of a single sympathizer despite being pressed to do so under cross-examination. The applicant is already on bail on a similar charge. There is no evidence that he interfered with either investigations or witnesses in that matter. This circumstance bolsters my finding that the respondent failed to establish that applicant is likely to interfere with witnesses and evidence if admitted to bail. See S v Bennet 1976 (3) SA 653 (H) I therefore take the view that imposition of a condition that he is not to interfere with witnesses and investigations is the reasonable course of action to take in the circumstances.

WHETHER THE RESPONDENT ESTABLISHED THAT THE APPLICANT IS LIKELY TO COMMIT SIMILAR OFFENCES IF ADMITTED TO BAIL

The following facts stood undisputed by the respondent. The applicant has no previous convictions. The allegations in CRB ACC 71/20 relate to an offence allegedly committed during the same period as in the present matter. There are no allegations that applicant committed similar offences after he was released on bail in CRB ACC 71/20. There also are no allegations that he committed similar offences after he ceased to be the Mayor of the City of Harare. That he may be under investigation for several cases of illegal sale of council land (the crime reference numbers were not disclosed to the court) does not appear to be a sound reason to deny him bail. Those investigations are not the matters in respect of which the bail application was made. In my view, the investigations appear not to be material for present purposes.

In all the circumstances, therefore, the respondent failed to establish that there are compelling reasons justifying the continued detention of the applicant pending his trial.

In the result, the following order shall issue:

The applicant is admitted to bail on these conditions:

He shall deposit RTGS$60 000.00 with the Clerk of Court Magistrates Court Harare.

He shall reside at House Number 5756 Glen Norah B Harare until this matter is finalized.

He shall report at Glen Norah Police Station every Friday between 6 a.m. and 6 p.m.

He shall not interfere with state witnesses and police investigations.

Mugiya and Muvhami, applicant’s legal practitioners

The National Prosecuting Authority, respondent’s legal practitioners