Joanna Mamombe and Cecilia Revai Chimbiri vs The State

### Preamble
1
HH 228-21
B 511/21
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JOANNA MAMOMBE

and

CECILIA REVAI CHIMBIRI

versus

THE STATE

HIGH COURT OF ZIMBABWE

CHITAPI  J

HARARE 23 April 2021 and 5 May 2021.

Appeal against refusal to grant bail: Section 121 (1)(b) of Criminal Procedure and Evidence Act, [Chapter 9:07]

A Muchadehana, for the Appellants

F I Nyahunzvi, for the respondent

CHITAPI J: The background to this appeal is that on 11 March, 2021, the appellants were denied bail by the provincial magistrate sitting at Harare. They had appeared before the magistrate on 6 March, 2021 for initial remand on 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 200/20 as read with S.I. 42/2021 (Partake or convenes a gathering) [Chapter 15:07]. The appellants applied for bail unsuccessfully. The provincial magistrate dismissed the application. Following the dismissal of the application, the appellants noted an appeal to this court in terms of s 121(1)( b) of the Criminal Procedure Act against the dismissal of their bail application. On 16 and 17 March, 2021 I heard arguments on the merits of the appeal. On 25 March, 2021 I dismissed the appellants appeal in a fully clothed judgment referenced HH 130/21. A copy of the aforesaid judgment is attached as part of the appellant’s papers herein.

Following the dismissal of their appeal, the appellants appeared before the provincial magistrate on 8 April, 2021. They made another application for bail. The application was premised on the provisions of proviso (ii) to subs (c) of s 116 of the Criminal Procedure and Evidence Act. In terms thereof, where a judge or magistrate has determined and dismissed an initial bail application made by an accused person after he or she has appeared in court following arrest as more fully provided in s 117A of the same enactment, a further or follow up application may be made to the judge or magistrate who made the previous order or to any other judge or magistrate.

“…if such application is based on facts which were not placed before the judge or magistrate who 	determined the previous application and which have arisen or been discovered after that 	determined.”

In daily practice, such application has come to be referred to as an application based on changed circumstances in both court papers, submissions by the applicants and respondent as well as in court corridors. The application was presided over by another provincial magistrate different from the provincial magistrate who dismissed the initial application. On 13 April, 2021, the further application was dismissed. This prompted the filing of this appeal against the dismissal aforesaid.

A very brief recap of the facts of the charges against the appellant is advised. It was alleged against the appellants that on 28 February, 2021 the two appellants attended the Harare Magistrates court as part of the audience which was in attendance at court in solidarity with an accused person. Makomborero Haruzivishe. The said Makomborero was appearing before the court for a default enquiry arising from his defaulting court in a case pending before the court. It was alleged that, in violation of s 5(3)(a) of the Public Health Act as quoted herein above the appellants gathered outside the court house by the main entrance. They proceeded to make a press statement addressing the members of the press and other onlookers. They were captured on video camera making statements denouncing the arrest and detention of the said Makomborero. They denounced alleged brutality by members of the police whilst calling upon the Commissioner General of the Police to resign.

The provincial magistrate dismissed the appellants initial bail application on the principal ground that they had shown a propensity to commit further and/or similar offenses. The finding was based upon the consideration that the appellants had allegedly committed the charge whilst on bail. On appeal, I determined that the provincial magistrate was misdirected to refuse bail on the basis that the appellants had been shown to have a propensity to commit further  offences. My decision was based upon an appreciation of the dicta in the Supreme Court decision in AG v Siwela SC 20/17 wherein it was stated that before bail can be refused on the ground that the accused is likely to commit further and similar offences, it must be shown that the accused has been convicted of a similar or other offence previously and that there had to be at least two such previous convictions.

Despite the misdirection by the provincial magistrate I still dismissed the appellants’ appeal having determined the appeal in a wide sense. In this approach, the issue that I had to determine was whether or not the misdirection having untied the court’s hands to interfere with the decision of the provincial magistrate, it was on the facts and circumstances of the case, in the interests of justice to grant the appellants bail. I based the decision to deny the appellants bail upon the consideration that to grant them would undermine the objectives of bail and the functioning of the criminal justice system generally. The point I made was that the grant of bail in circumstances where the appellants engage in the same conduct for which they are on bail showed intransigence on their part. It is unreasonable that after a person is arrested on criminal allegations. He or she appears before the magistrate who determines that there is a reasonable suspicion that the conduct of the accused complained constitutes an offence. The person is granted bail. The person commits the same conduct before giving the court the opportunity to determine such persons’ guilt or innocence. Such conduct in my view would constitute a threat to the objectives of the bail system. A reasonable person who has been granted bail in relation to an offence founded on certain conduct is not expected to engage in the same conduct and be arraigned before the same court. The court would in such circumstances be justified to hold that the person concerned is minded to challenge and undermine the criminal justice system and the bail system in particular. The presumption of innocence wanes on the face of continued engagement in conduct which the court adjudges to raise a reasonable suspicion that the accused committed the offence in question. The above summation was then the basis for denying the appellants bail in my judgment.

When the appellants mounted a follow up application whose dismissal resulted in this appeal, the provincial magistrate was required to first determine whether the appellants had established new facts which were not in existence at the time of making the initial application and had not been placed before the magistrate or myself since I decided the appeal in the wide sense by putting myself in the shoes of the magistrate and making what I considered to be the correct findings albeit the result to dismiss the appeal having the same effect as the dismissal by the magistrate. If new facts were established the provincial magistrate was required to consider whether the new facts had changed the circumstances of the case to such extent that bail could be granted without compromising the reasons for the initial refusal to grant bail.

It is noted and acknowledged that Mr Nyahunzvi for the respondent correctly directed my attention to cases which outline the court’s approach to applications such as the one which the magistrate had to determine. Paras 8 and 9 of Mr Nyahunzvi response reads as follows:

“8.	In the case of Daniel Range v S HB 127/04, Cheda J remarked at p 2 of the cyclostyled 			judgment that-

“In determining changed circumstances the court must go further and enquire as to whether 		the changed circumstances have changed to such an extent that they warrant the release of 		a suspect on bail without compromising the reasons for the initial refusal of the said bail

9.	Matanda-Moyo J also had this to say in S v Brian Makanya HH 415/15: -

“The applicant bears the onus to produce evidence which satisfies me that exceptional circumstances exist which in the interests of justice permit his release. Even if I accept that there are new circumstances or changed circumstances, I am still obliged to consider all the facts before me, new and old and on that basis decide whether applicant is a good candidate for bail.”

The bail application of the applicants does not require that the appellants satisfy the court of the existence of exceptional circumstances because the offence charged is not a Third Schedule offence. It is in fact the respondents who must show compelling reasons for bail to be refused.

The appellants in their application before the provincial magistrate submitted a number of factors or facts which they relied upon to persuade the court to accept them as constituting changed circumstances. It was averred that by passage of statutory instrument S.I 22/21, public gathering of an increased number was now permitted. It is correct that the covid regulations were relaxed on 2 March 2021. Notably, gatherings of not more than fifty people are now permitted. What this means for the first applicant is that as an individual or as a constituency member of Parliament she is free to address gatherings of people not exceeding fifty. The argument put forward was that the environment was no longer as tight as it was in relation to the ban on gatherings for fear of spreading the COVID-19 virus. In addition to the relaxation of bail COVID-19 regulations, the applicants gave personal assurances that they would not contravene the COVID-19 regulations if released on bail.

The provincial magistrate was not persuaded to grant bail. The provincial magistrate considered that the State case had not weakened. The appellants’ counsel had advanced the argument that relaxation of COVID-19 regulations had resulted in the weakening of the State case. It is not necessary to unduly dwell on this meritless submission. The provincial magistrate properly found no merit in the appellants’ argument. This is so because the appellants will be tried on the basis of the facts and evidence then existing as at the date of  the commission of the offence charged. The weakening of the State case could also not properly be determined in the bail application since the allegations on which the appellants were placed on remand remained extant. There had been no further challenge to the confirmed remand. The original decision of the provincial magistrate who granted the remand application remains holding. Trial has not started and therefore the strength of the State case remains what was determined on the remand hearing.

The provincial magistrate in his judgment accepted that there were changed circumstances in the form of the relaxed COVID-19 regulations. However, he reasoned that the issue of propensity remained extant. He thus concluded that granting bail to the appellants would compromise the reasons for the initial refusal of the court to admit the appellants on bail. Bail was refused.

The appellants have listed twelve grounds of appeal. I have gone through them.  I do not find it necessary to list them all now nor to interrogate them individually. I however comment that most of the grounds of appeal are generalized and do not impact on the decision made. In this regard I find myself in agreement with Mr Nyahunzi for the respondent wherein he stated in the State response in para 5 as follows—

“5.	In an appeal of this nature, the appellant should attack the decision of the lower court in denying him bail pending the commencement of his trial.

See S v Malunjwa 2003 (1) ZLR 275 (H)”.

Mr Nyahunzi also correctly submitted that the appeal court judge could only interfere with the lower court’s findings if it is shown that that court committed a misdirection.  Mr Nyahunzvi stated as follows in para 6 of the respondent’s response—

“6.	The appellant would be successful and admitted to bail pending trial if it is shown that the court a quo committed an irregularity or misdirected itself and exercised its discretion in an unreasonable or improper manner to such an extent that its decision cannot be upheld by a higher court

See S v Ruturi 2003 (1) ZLR 259 (H)”.

In casu, the decision of the provincial magistrate was that bail be denied because in his view, the fears that the appellants would continue to	 commit further or similar offences remained extant. He reasoned that to grant the appellants bail would defeat the reasons for which bail was previously denied. This is the finding which the grounds of appeal should be directed at.

In so far as the grounds of appeal which could be said to be directed at the decision of the provincial magistrate are concerned, I would just single out one of them being ground 7. It reads as follows—

“7.	The court a quo erred and misdirected itself in ignoring the assurances given by the appellants in which they undertook not to commit any offences whilst on bail an assurance that the High Court (per CHITAPI J) had said had not been given before him or the initial court (V.P Guwuriro) which had heard the application”.

It is correct that through submissions by Mr Bamu made before the provincial magistrate, the appellants made undertakings not to engage in similar conduct for which they are on remand. The provincial magistrate did not advert to the undertakings nor comment on their impact on the feared propensity of the appellants to engage in similar conduct.

In my judgment in which the appellants were denied bail, I took a serious view of what appeared to be obstinate conduct by the appellants in continuing to engage in conduct for which they had been arrested and granted bail without giving the criminal justice system a chance to determine their guilt or innocence. The appellants presented themselves as stubborn and not intent on changing from their course of conduct even though they had been criminally charged for that conduct. A continued commission of the same conduct could only be interpreted as acts of defiance and confrontation with the police. A serious view too, was taken of the fact that the first appellant was a legislator who did not seem to care about the need to refrain from conduct for which she was arrested. To release the appellants then would have made a mockery of the objectives of the bail system in particular and the criminal justice system in general. The appellants did not give any assurance that they would relent or refrain from engaging in conduct complained of.

In the case of Aitken & Anor v Attorney 1992 (1) ZLR 249; S v Kuruneri HH 111/2004 and S v Mwonzora HH 72/2011 it was stated that, amongst several factors which are proper to consider in deciding whether or not to grant an accused bail, the credibility of the accused’s assurance of his intention and motivation to stand trial was an important consideration. In casu, the provincial magistrate was misdirected to fail to take into account the undertakings of the appellants not to engage in similar conduct if granted bail. This opens my hands to interfere with the decision of the provincial magistrate.

By making an undertaking to refrain from engaging in similar conduct, this waters down the militant character of the appellants in exhibiting an attitude of obstinacy and defiance of existing law and the functions of the criminal justice system. The continued engagement in conduct which the court would have determined as prima facie criminal upon a consideration whether there is reasonable suspicion that the offence charged was committed could only be described as misplaced bravado. The police and courts will in the discharge of their constitutional mandates respectively arrest the appellants and courts will in turn determine their guilt or innocence as many times as the appellants are arrested on reasonable grounds of having committed the offences. It is therefore ill advised of any reasonable person to go on a spree of engaging in conduct for which the person has previously been arrested because the arrests will continue. The situation would be otherwise if the court will have determined the legality or otherwise of the conduct. It becomes key in my view to consider the assurance which the appellants gave to give the criminal justice system a chance to have the appellants tried without them appearing before the court for continued alleged similar transgressions of the same law founded on similar conduct on which the court will have expressed a prima facie view that there is reasonable suspicion that the appellants committed the offence in issue.

In considering the assurance given, it is necessary to take into account the imposition of bail conditions which allay the fears of repeat conduct. Mr Nyahunzvi without conceding the appeal expressly submitted that the respondent’s fears remained that of repeat conduct by the appellants. When I enquired of him, whether the imposition of stringent conditions would not allay the fears of the respondent, Mr Nyahunzvi submitted that such approach may be effective.

The first appellant as is common cause is a member of Parliament. She has a constituency to serve. It is a pity that she has engaged in conduct adjudged to raise a reasonable suspicion that the conduct amounted to an offence for which she is liable. The consequence has been her incarceration for which she seeks bail. I am prepared to accept that the first appellant’s undertaking as aforesaid is genuine. She has much to lose by breaching her undertaking and continuing to break the law whose making she is part of. She took an oath of Member of Parliament in terms of the Constitution. The details of the oath as provided for in the Third Schedule to the Constitution provides, thus,

“I, xxxx swear/solemnly that I will be faithful to Zimbabwe, that I will uphold the Constitution and all other laws of Zimbabwe, and that I will perform my duties as a Senator/Member of National Assembly faithfully and the best of my ability.”

The first appellant is therefore reminded of her oath to respect and uphold all Zimbabwean laws. Her assurance therefore is made by a person who accepted a constitutional duty to obey the laws of the country. I am prepared to give the first appellant the benefit that her given assurance to refrain from engaging in similar conduct if coupled with stringent conditions make her a suitable candidate for bail at this juncture.

In respect to the second appellant, from her personal circumstances as listed in the bail statement on appeal she is just an ordinary citizen who is unemployed nor married and has no assets. She however appears linked to the first applicant by a connection which has not been explained. From the allegations against the appellants, the second appellant is a subordinate or support cast actress if the two are compared in their degrees of involvement in the actus rens. The second appellant as with the first appellant has not breached the bail conditions imposed in the other cases. Bail was denied not because they breached the previous conditions. It was denied because of fear of futuristic anticipated repeat conduct as already discussed above.

An issue which was touched upon by the provincial magistrate was that a trial date of 5 May, 2021 had been set thus showing that the respondent was moving with speed to have the matter disposed of. The provision of a trial date is not a bar to the granting of bail because until the court passes a judgment of guilty, the accused person remains presumed innocent until proven guilty. The provisions of s 117 (1) of the Criminal Procedure and Evidence Act provide that a person who is in custody for any offence

“shall be entitled to be released on bail at any time after he or she has appeared in court on a charge 	and before sentence imposed unless the court finds that it is the interests of justice that he or she 	should be detained in custody.”

It follows that the provision of a trial date might be very relevant in considering the effect of the passage of time as a changed circumstance in bail applications. It does not bar the grant of bail before sentence.

I must therefore determine whether it is in the interests of justice at this stage to grant the appellants bail taking into account that the only concern of the respondent is that the appellants will engage in similar conduct for which they were previously granted bail upon appearing in court. They have assured the court that they will not do so. The release of the appellants is in the interests of justice after factoring in the assurance given. Society in such a scenario expects the court to give effect to a citizens assurance if it is genuine and bona fide. The court will in the light of the assurance consider if the interests of justice is served by the grant of bail. I will not bother to deal with other grounds on which bail may be refused because of the limited scope of the issues for determination which I found to be essentially one issue as I extrapolated above.

Having considered that bail may properly be granted to the appellants at this stage, it still remains a fact that the conduct of the appellants has stretched the court’s patience in that the appellants would be arrested, are brought to court and adjudged to have upon a reasonable suspicions basis committed the offence. In no time they engage in similar conduct and are again brought before the same court. The court in such scenario will end up imputing defiance of the law upon the appellants. For these considerations, bail should therefore be granted on strict conditions. In doing so, I will keep in mind the terms of s 120 of the Criminal Procedure and Evidence Act, to the effect that the discretion on the amount of bail to be taken rests with the court. The court is however not permitted to give excessive bail. Therefore, taking all the facts presented on appeal together with the appellants’ personal circumstances, the following order will in my view be in the interests of justice to make.

IT IS ORDEED THAT

The appeal succeeds.

The decision of the provincial magistrate to deny the appellants bail on 13 April, 2021 is set aside and in its place the following order substituted-

Each accused is admitted to bail in case NO. HRE P CRB 1304-5/21.

Each accused shall deposit ZWL$20 000.00 with the Clerk of Harare Magistrates Court.

First accused Joanna Mamombe shall reside at house No 8095-24th Crescent; Glen Norah C, Harare and shall report every Friday at Harare Central Police Station Law and Order section between 6:00am and 6:00pm.

Second accused Cecilia Chimbiri shall reside at Flat 6; Marina Court, Corner 6th Street/Baines Avenue, Harare and shall report every Fridays at Harare Central Police Law and Order section between 6:00am and 6:00pm.

Each accused is ordered not to interfere with witnesses.

Each accused is barred from addressing or being part of any gathering which exceeds fifty people or any such number as may be specified in any variation or amendment made in terms of the operative COVID19 (Prevention Containment and Treatment, National Lockdown) regulations passed under the Public Health Act [Chapter 15:07] in terms of section 5 (3)(a) thereof.

Mbidzo, Muchadehama and Makoni, appellant’s legal

National  Prosecuting Authority, respondent’s legal practitioner