Joana Mamombe and Cecillia Revai Chimbisi v The State

### Preamble
1
HH 130-21
B 511/21
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JOANA MAMOMBE

and

CECILLIA REVAI CHIMBIRI

versus

THE STATE

HIGH COURT OF ZIMBABWE

CHITAPI J

HARARE, 16, 17 and 25 March 2021

Bail appeal; in terms of s 121 (1) (b) of Criminal Procedure and Evidence Act [Cap 9:07] as read with r 6 (1) of the High Court of Zimbabwe; Bail Rules 1991

J. Bamu with A. Muchadehama, for the appellant

F. Nyahunzvi with T. Mapfuwa, for the respondent

CHITAPI J: The background to this appeal is that the two appellants appeared before the Provincial Magistrate at Harare Magistrates on 6 March, 2021 on initial remand. They were legally represented by Mr J. Bamu who again is their legal representative in this appeal. The appellants faced a charge of contravening s 5 (3) (a) of the Public Health (Covid 19 Prevention, Containment and Treatment National Lockdown) Consolidation and Amendment Order of S.I. 200/29 as read with S.I. 42/2021 (Partakes or covenes a gathering) Chapter 15:07.

The facts alleged to ground the charge against the appellants were that they attended at the Magistrates Court Harare on 25 February, 2021 in solidarity with one Makomborero Haruzivishe who had been brought to court for a default enquiry on what was described in the allegations as – “…two different cases of participating in a gathering with intent to promote public violence, breaches of peace or bigotry” in breach of CIV 19 National Lockdown regulations, the cases against Makomborero Haruziveshe are not an issue in this appeal.

It was further alleged in the facts outlined in the annexure to the form 242 request for remand form that following the remand of Makomborero Haruzivishe in custody to the following day, the 26 February 2021, the appellants went out of the court house where they gathered by the court house main entrance and “made a press statement denouncing the arrest and detention of Makomborero Haruzivishe and the alleged police brutality, calling for the resignation of the Commissioner General of the Zimbabwe Republic Police. By so doing, the accused partook or convened a gathering without any exemption as required by the regulations”. It was alleged in addition that the applicants were captured on video footage committing the offence and that there were witnesses to testify against the appellants. The appellants despite their protestations made through cross examinations of state witnesses that their conduct did not constitute the offence charged were nonetheless placed on remand. Their application to be remanded out of custody on bail was unsuccessful and they were remanded in custody. The appellants filed this appeal against the decision by the magistrate to deny them bail.

The appellants prepared and have filed a notice and grounds of appeal. In the notice of appeal the following statement appears

“FURTHER TAKE NOTICE THAT the decision refusing appellants bail pending trial was made by the learned Provincial Magistrate Vongai Pamela Muchuchuti-Guwuriro Esq sitting at Harare Magistrates Court on the 11th March, 2021…”

The reference to the magistrate by her first names should be avoided. Legal practitioners and indeed appellants are not required to waste time and energy trying to find out first names of judicial officers. The bail rules which the appellants rely on for this appeal as read with the provisions of s 121 of the Criminal Procedure and Evidence Act, do not provide for such requirement. The bail rules require that the appellant should provide the name of the court whose decision is being appealed against and not the name of the magistrate let alone the first names of the magistrate. It was not clear to me where the appellants got the magistrates name from because from the record of proceedings the matter was before V.P. Guwuriro. The point is therefore made that etiquette in the context of referring to judicial officers requires that judicial officers are referred to by the office they occupy or by surname. Counsel must be guided in future.

Reverting to the appeal, the appellants set out five ground of appeal. They are detailed as follows-

The court a quo grossly misdirected itself in denying appellants bail on the basis that the appellants might commit offences if granted bail, a finding which is contrary to both evidence and dictated of section 117 (3) (a) of the Criminal Procedure and Evidence Act [Chapter 9:07] as well as established case law on the subject binding the court a quo. In arriving at this conclusion, the court a quo allowed extraneous issues, which issues were also not supported by available evidence, to influence its decision resulting in the court denying appellants bail in circumstances that leads one to conclude that refusal of bail was being used as a punitive measure against appellants.

The court a quo grossly misdirected itself in denying appellants bail circumstances where no fears of absconding trial existed. The primary purpose of bail being to secure the attendance of the accused at the trial, it was contrary to the interest of justice for appellants to be denied bail in circumstanced where there are no fears of abscondment.

The court a quo grossly misdirected itself in failing to find that the imposition of bail conditions could sufficient take care of the fears of the State given that they have religiously complied with their bail conditions in respect of the other pending cases. This is particularly so when the Investigating Officer conceded that the imposition of bail conditions would suffice to secure the ends of justice.

The court a quo grossly misdirected itself in concluding as it did that the State had discharged the high standard set by the constitution in showing that there were compelling reasons justifying the denial of bail when in fact such a finding is not supported by evidence on the ground.

The court a quo grossly erred in failing to take into account relevant considerations such as the incidence of COVID-19, the health status of the appellants and the general inadequacy of prison facilities to contain a possible outbreak of the pandemic I prison in deciding the question of bail.

I have carefully considered the grounds of appeal and read and re-read the magistrate’s ruling. It is important to identify the reasons which the magistrate gave to support her decision to deny the appellants bail. I have also been greatly assisted by the appellants’ counsel detailed heads of argument. I have indicated that I reread the magistrates judgment in order to fully appreciate it because in a bail appeal, the appellant, as pointed out by Mr Nyahunzvi relying on the judgment of Ndou j in S v Malunjwa 2003 (1) ZLR 275 (H) must attack the decision of the lower court. It follows that the decision of the lower court must be understood in context and substance. Both  counsel were agreed that the judge on appeal against the refusal by the magistrate to grant bail can only interfere if the appellant has established a misdirection or irregularity committed by the magistrate in reaching the decision appealed against.

In paras 4 and 5 of the appellants’ heads of argument, appellants’ counsel properly summarized the legal position on the approach to an appeal as in the one herein as follows:

“4.	The golden rule for any appeal to succeed is that the appellant must demonstrate a misdirection by the court a quo. See Barros and Another v Chimponda 1991 (1) ZLR 58(S) at 26 – 63A.

5.	Put differently an appeal court can interfere with the decision of a lower court if the manner in which the court a quo exercised its discretion is so unreasonable as to vitiate its decision; or if the court a quo’s decision is afflicted by “a misdirection occasioning a substantial miscarriage of justice.”

See S v Siwela SC 20/17

S v Ncube 2001 (2) ZLR 556

S v Makombe SC 30/04

Tungamirai Madzokere & Ors v State SC 8/12

Aitken & Anor v Attorney General 1992 (1) ZLR 249 (S)

S v Malunjwa 2003 (1) ZLR 275 (h)

S v Ruturi 2003 (1) ZLR 259 (H)”

My close reading of the magistrates judgment shows that bail was refused on the main ground that the appellants were likely to commit further offences whilst on bail. The magistrate also made a finding that the state case against the appellants was strong because there was a video clip which showed the appellants committing the offence. The magistrate noted that the appellants did not refute this evidence but instead they sought to query why, one Professor Madhuku was not arrested yet he was part of the gathering. The magistrate further noted that the appellants were intent on demonstrating a selective application of the law since Professor Madhuku was left to go free. It is significant to note that the magistrate stated that she would not have refused to grant the appellants bail had the reason for opposing bail been solely the strength of the state case. The magistrate stated as follows on p 11 of her ruling:

“Although the court would not have refused the grant of bail on the basis of the strength of the 	state’s case alone, the ground adds a different picture when infused into the main issue of the 	accused likely to commit further offences whilst on bail.”

It follows from the above that the appellants were denied bail on the principal ground that if released on bail, there was a likelihood that they would commit further offences. It is this ground which must be interrogated to determine whether the magistrate was misdirected in dealing with it in any manner which entitles the judge on appeal to interfere with the magistrate’s decision.

The appellants in their first ground of appeal dwell on the issue of the finding by the magistrate to deny the appellants bail on the grounds of the likelihood of the appellants to commit further offences. The appellants averred in the ground of appeal that the magistrate was misdirected in making the finding aforesaid because she did so contrary to both evidence, the dictates of s 117 (3) (a) of the Criminal Procedure and Evidence Act and decided case law. It is also averred that the magistrate allowed extraneous issues which were not supported by evidence to influence her decision to deny the appellants bail.

The crux of the matter is firstly that indeed the appellants have pending cases which are yet to be tried. The cases are pending before the same Harare Magistrates Court. The judgment of the magistrate however contains comments on issues of the non-trial of the pending cases. The magistrate appeared to place blame on the first appellant for the delayed trials. The issue of delay in the prosecution of the pending cases was not even an issue before the magistrate. Her comments or findings that the first appellant was the cause of the delay amounted to a misdirection. The conduct of the trials as was common cause was a matter on which the High Court granted orders wherein it was ordered that trial be arrested pending the treatment of the first appellant by her private doctors for. Case No HH 629/20 Mamombe v Prosecutor General dealt with the issue. Once the High Court had made a ruling as noted by the magistrate, it was irregular to then make a finding adverse to the first appellant in particular that the appellant was the one to decide “on whether she can stand trial”. Further a joint trial of the appellants was ordered by the High Court in case No. HC 7200/20 Mamombe v Deputy Chief Magistrate when the state had decided to separate the trial of the appellants on a pending case on account of the first appellant’s inability to stand trial. All in all, the magistrate should not have made adverse findings against the appellant for having sought relief from the High Court which granted it.

The appellants argued in the heads of arguments that the magistrates statement, viz, in relation to the appellants that:

“… they openly refuse to be tried raising numerous technicalities. At the same time they go out and commit more offences.”

clouded the magistrate’s decision in that the magistrate allowed erroneous assumptions to influence her decision and to reach wrong factual and legal conclusions. I have already indicated that the magistrate was misdirected to make adverse findings against the applicants on matters which the High Court had decided upon. The approach of the magistrate could easily be construed as a review of the High Court decisions which the magistrate is not legally empowered to do.

The appellants made reference to other comments made by the magistrate that the appellants did not successfully challenge their placement on remand on the pending cases. The appellants attacked those comments on the basis that the comments would imply that an accused who fails to successfully challenge his or her placement on remand should not be bailed. I did not read such conclusion to be the import of the magistrates comment. Rather, I read the comment as being made to demonstrate that the pending matters are based upon a finding that there was a basis for the remands. In other words, the appellants were placed on remand on the basis that there was a reasonable suspicion that they committed the offences charged therein. Such suspicion continues to hold and I will take note of its existence because the continued remand of the appellants has not been challenged or if it was then the challenge did not succeed. Crucially though, the fact remains that upon the arrest of the appellants and their appearance for initial remand, they were persons who had pending cases before the Harare Magistrates Court.

Having determined that the magistrate was misdirected in allowing extraneous matters to influence her decision, the correct approach to take therefore is to deal with this appeal in the wider sense, being the approach which is followed in the jurisdiction. The judge hearing an appeal against the decision of the magistrate on bail whether such appeal is brought by the accused or Prosecutor-General will treat the appeal as a fresh application, so to speak. In other words, if there has been a misdirection and the appeal judge’s hands are by reason of the misdirection, freed to interfere with the decision of the magistrate, the appeal judge places himself or herself in the position of the magistrate and exercises a discretion to grant or deny bail. See Mazivisa v State HMA 11/16 per MAFUSIRE J and cases cited therein

I propose to briefly deal with other grounds of appeal before I revert to the main ground of refusal of bail, namely, the likelihood that the appellants will commit other or similar offences as it was described in the judgment. The appellants argued in the second ground of appeal that since the primary purposes of bail is to secure the attendance of the accused person for his or her trial, bail ought not to have been denied as there was no fear of abscondment. The argument does not express the correct position at law. The correct position is that in terms of the provisions of s 117 (2) (a) and (b) it is deemed to be in the interests of justice if bail is denied where any 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—

endanger the safety of the public or any particular person or will comment on offence referred to in the First Schedule; or

not stand his or her trial or appear to receive sentence; or

attempt to influence or intimidate witnesses or to conceal or destroy evidence;

undermine ort jeopardize the objectives or proper functioning of the criminal justice system including the bail system.

(b)	when in exceptional circumstances there is a likelihood that the release of the accused will disturb the public order or undermine public peace ort security.”

The magistrate was not obliged to grant bail upon a finding that the appellants would not abscond. She was entitled to consider other grounds too. Bail will properly be refused where other grounds for its refusal in the interests of justice are established other than the absence of the risk of abscondment. The magistrate did not rely on this ground to deny bail. There is no merit in the second ground of appeal.

In regard to the third ground of appeal, it was argued that the magistrate erred in not finding that the imposition of bail conditions would take care of the State’s fears given that the appellants had so far complied with the bail conditions imposed in pending cases. It was also argued that the investigating officer had conceded that imposition of bail conditions would suffice. The first point to note is that once a matter is pending before the court, it is the court which is now seized with it and will give a decision on its disposal. Even where the Prosecutor General stops a prosecution or withdraws charges, it is the court which disposes of the matter. That being, the concession by an investigating officer in a bail application is one of the many factors which the court considers. It is not determinant on its own. Whilst it is correct that the imposition of bail conditions may allay the State’s fears, the arguments before the magistrate were that there was a likelihood that the appellants who were on bail in pending cases were likely to reoffend if granted bail. A reading of the magistrates’ judgment on p 10 of the judgment and p 24 of the record on appeal shows that the magistrate stated—

“...The State’s fears that the accused are likely to commit similar offences whilst on bail are therefore real and cannot be cured by the imposition of stringent bail conditions.”

The magistrate therefore considered the imposition of stringent bail conditions and determined that they would not cure the fears aforesaid. The ground of appeal therefore fails as it is premised upon a wrong fact that the magistrate did not consider the imposition of bail conditions.

The fourth ground of appeal does not meet the standards of how a ground of appeal should be drawn. It should be clear and concise which it is not. The ground of appeal as couched by the appellants is too generalized. It alleges that the court misdirected itself to conclude that the State had discharged the onus to show compelling reasons to deny bail in the absence of evidence on the ground. It is not possible to answer this ground because it is not specific to the error which the magistrate made.

In the fifth ground of appeal, the appellants aver that the magistrate erred in not taking into consideration relevant considerations such as the incidence of COVID-19, health status of the appellants and the inadequacy of prison facilities to contain a possible outbreak of the pandemic. I do agree that the court when considering bail applications should take into account the state of health of the accused. Section 117 (4) (e) of the Criminal Procedure & Evidence Act, provides that where applicable, the court will take the fact into consideration. Critically though, s 117 (4) emphasizes that in determining a bail application and in considering the factors outlined in subs 2 of s 117,

“... the court must still decide the matter by weighing the interests of justice against the right of the accused to his or her personal freedom and in particular the prejudice he or she is likely to suffer if he or she were to be detained in custody...”

The overriding principle is therefore what the interests of justice dictate in any given case. The interests of justice expressed in general terms require that the rule of law be observed and that the subject should be bound by and obey the law. The health of the appellant was not in this matter an unusual issue in my view. The appellants were able to find their way to court to be part of the gallery, where after, they are alleged to have addressed people or a small gathering in breach of the COVID-19 regulations.  I did not find on record medical reports or other independent evidence of the health status of the appellants and how detaining them in custody would impact upon their health. Counsel made generalized submissions. In regard to COVID-19, it is indeed a deadly virus and it is also true that prisons are overcrowded. However, it is also true that the prisons institution like every institution is aware of and takes measures to ensure the safety of prisoners health wise. If the risk of contracting COVID-19 was to be used as the criteria to avoid remands in custody and imposition of custodial sentences, then there would be no use for prisons to remain functional. I do not find that the failure by the magistrate to interrogate the issue of COVID-19 and the state of health of the appellants, though it could qualify to be a misdirection, would on its own entitle the appellants to their release on bail because bail was denied on a specific ground.

Reverting to the primary ground for denying the appellants bail, I carefully considered the arguments raised by counsel and the judgment of the magistrate in regard to the likelihood of the appellants to commit further or similar offences whilst on bail. Arguments were and have been put forward in regards to the requirements to be met for this ground to be properly invoked. The denial of bail will be interests of justice once the State establishes facts which ground a likelihood that if released on bail, the accused will commit an offences referred to in the first schedule. The first schedule offences are those offences where a punishment of imprisonment exceeding six months is provided for upon conviction whether there is an option of a fine or no such option. It is difficult to assume that an accused “will” not “may” commit a First Schedule offence. The provision will always present problems because of its futuristic character. Who can tell what the future holds? Nobody.  Arguments on the interpretation therefore should not detain the appeal determination.

The magistrate reasoned that to release appellants on bail in circumstances where they had been shown to have offended whilst on bail would bring the justice system into disrepute and render Courts ineffective and the interests of justice compromised. Sub paragraph (1v) of paragraph (a) of ss (2) of s 117 provides that bail may be denied where the release of the accused on bail will –

“(iv) undermine or jeopardize the objectives or proper functioning of the criminal justice system including the bail system”

The court is enjoined when relying on this ground to take into account factors, as they may be applicable, set out in s 117 (3) (d). The court may take into account any other factor which in the Court’s opinion should be taken into account.

It is important that the public should be protected from further criminal activity by an accused whose trial is pending. In the normal course of things, a pending trial moreso where the person to be tried is on bail, should act as a deterrent on the person to be tried from engaging in conduct which may constitute an offence. The State must provide facts from which it can be inferred that there is a danger that the accussed may engage in further criminal conduct pending trial. It must also appear that the imposition of stringent bail conditions will not avert the likelihood of the accused engaging in further criminal conduct before trial. From the submission by counsel for the appellants before the magistrate, the thrust thereof was to show that the appellants did not contravene the law. It was noted by the magistrate that there was focus on selective application of the law by not arresting Professor Madhuku as opposed to whether the actus rens was committed. There was also a submission made that there was nothing wrong with addressing the press. The appellants themselves did not offer or undertake that they would not address any gathering or that they would strictly comply with COVID – 19 regulations. A reading of the submissions by counsels showed an attitude of defiance. I say so because the appellants did not give any indication or assurance that despite their placement of remand, which placement meant that there was a reasonable suspicion that they committed the offence alleged against them, they would refrain from engaging in similar conduct, which they instead argued did not constitute a crime. The appellants did not suggest such stringent conditions themselves.

The appellants have been granted bail as admitted in pending cases as follows. In respect of first appellant she was admitted to bail in case number CRB 2591/20 in March, 2020 albeit the charge of subverting constitutional Government was withdrawn before plea on 23 March, 2020. On 27 May, 2020, she was brought before the Court under case number CRB 5359-61/20 on a charge of subverting constitutional government with alternatively contravening the lockdown regulations by addressing a gathering of more than 50 people. She was admitted to bail. In June, 2020, she was charged with the offence of publishing or communicating false statements prejudicial to the State. The case number is CRB 7566-8/20. She was admitted to bail. Under CRB 919-20/21 opened in February 2021, the appellant was charged with the offence of undermining police authority. She was granted bail.

The second appellant is a co-accused of the first appellant in case number CRB 5359-61/20 and was similarly granted bail. She is again the first appellants co-accused in case number CRB 919-20/21. In these cases, she is also on bail. The cases for which the second appellant is on bail are pending trial.

It is correct as submitted by their counsel that both appellants do not have previous convictions. I have noted the references to the case of AG v  Siwela SC 20/17 and other cases on the approach of the court to determining a bail application where the ground for opposing the application is that the accused will commit similar offences because of the accused’s’ history of premises convictions.

In casu however, in determining the appeal in the wide sense, the Courts’ concern arises from the realization that the granting of bail to the appellants  in previous pending cases does not appear to have had any deterrent or other effect to dissuade the appellants from engaging in conduct which is adjudged to constitute a reasonable suspicion that they have committed an offence. The first appellant is a legislator and law giver. In that capacity she appreciates the fact that an existing law must be obeyed. Whilst I cannot say that she is guilty of the offences on which she is on remand because of the presumption of innocence, it remains a fact that she has not stopped to engage in other activities deemed as grounding a criminal offence. The second appellant may not be a legislator. She is or a co-accused of the first appellant. She is like any citizen deemed to know the law and that the law must be obeyed. The history of the appellants places focus on the objectives and functions of the bail system and the criminal justice system. It is certainly not the intention behind the concept of the presumption of innocence that a person on bail or any accused for that matter should engage in conduct which is adjudged to constitute the constitution of an offence and seek bail hiding on the presumption of innocence.

The bail system must be seen to be effective: The system is undermined and looses significance if the same person who has been granted bail in one matter continues coming to Court for bail on subsequently committed matters. This is the situation which the appellants present given their history. The question of bail is not for the accused person only. It also caters for the public interest and the due administration of justice and its efficacy. The appellants evidently have been engaged in conduct adjudged to ground a reasonable suspicion that they committed the offences charged. It does not appear that stringent conditions will arrest the likelihood of the appellants not to engage in conduct which is unlawful I am not persuaded that it is in the interests of justice to admit the appellants to bail. To do so clearly undermines the objectives of the bail system. Being on bail means that ones’ freedom is curtailed and the bailed person should until cleared by the court be deterred by the fact of being on bail not to engage in conduct which violates the law or is deemed to be so by the Court.

Having considered all the papers in this matter and agreed that the magistrate committed misdirections which entitle the appeal judge to interfere with the magistrates decision, I have after considering the record of proceedings the grounds of appeal and counsel’s submission, come to the same conclusion as the magistrate that there are compelling reasons to deny the appellants bail. Accordingly, my order is that:

“The appeal by both appellants be and it is hereby dismissed.”

Muchadehama Mbidzo & Makoni, appellant’s legal practitioners

National Prosecution Authority, Respondent’s legal practitioners