Moore Chakwana v The State

### Preamble
1
HH 794-18
B 142/15
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MOORE CHAKWANA

versus

THE STATE

HIGH COURT OF ZIMBABWE

CHITAPI  J

HARARE, 26 September 2018

Bail Pending Appeal

Applicant in person

F Kachidza, for the respondent

CHITAPI J: The applicant has through the Registrar requested for written reasons for dismissing his application for bail pending appeal. I dismissed his application on 26 September 2018. In my brief reasons for dismissing the application I endorsed as follows on the result slip:

“Reasonable prospects of success on appeal on grant of condonation of late noting of appeal –

(1) Fact that leave to appeal out of time granted does not translate to a finding that bail pending                         appeal be granted automatically and application dismissed.

(2) If full judgment is required applicant may request for same through registrar”

The applicant was convicted by the regional magistrate on two charges and sentenced on 4 August, 2015 at Gokwe Regional Court. He was charged together with 6 others of, in the first count, unlawful entry into premises as defined in s 131 (1) (a) of the Criminal Law Codification and Reform Act, [Chapter 9:23]. It was alleged that on 8 February, 2015 at house number 5034, West End Kwekwe the applicant and his co-accused made forced unlawful entry into the premises of Pamela Muzondo, the lawful occupier without her authority by breaking the kitchen door open using an iron bar.

In the second count, the applicant and the same accomplices were charged with robbery as defined in s 126 of the Crimminal Procedure Law Codification and Reform Act. It was alleged that at the same place and date, they unlawfully through the use of threats and violence threatened Pamela Muzondo with a pistol and machete to induce in her fear and submission whereafter they stole her $20 000 and 1105 grams of gold. Again the applicant and his co-accused pleaded not guilty. The not guilty pleas necessitated a full trial. A separation of trials was ordered and one co-accused who was listed as third accused, Thomas Mhlanga had his trial separated. Following the conclusion of the trial, the applicant and two of his co-accused namely Naison Rusere (Accused 2) and Albert Mukwende (Accused 7) were convicted on both counts whilst the other 4, Moludusi Mlilo (Accused 4); Simbarashe Manyika (Accused 5) and Tatenda Mawisire (Accused 6) were found not guilty and acquitted. The applicant and his two co-accused who were convicted were sentenced to 2 years imprisonment on count 1 and 10 years imprisonment on count 2. Of the total combined sentence of 12 years, one year was suspended on condition of future good behavior for 5 years. The applicant is serving 11 years.

The applicant was not represented at his trial. He did not timeously file an appeal. On 23rd July 2018, following application for condonation of failing to appeal on time, Wamambo J granted the applicant the condonation, extended the time within which to appeal by 21 days from the date of his order and granted the applicant leave to prosecute his appeal in person. On 10 August 2018, the applicant filed his notice of appeal under case No. CA 457/18 and followed up the noting of the appeal by filing this application for bail pending appeal on 29 August, 2018. The State counsel opposed the application and filed a comprehensive statement in opposition. In Sawadye v State 2016 (2) ZLR 319, I referred to the case S v Labuschagne SC 21/03 as setting out the principle that the mere fact that an accused person has been granted leave to appeal and by extension, condonation of late noting of appeal does not translate to an entitlement to an automatic grant of bail pending appeal. The applicant must satisfy the court that the interests of justice would not be endangered by his release on bail. The principle remains the correct proposition of the law today. This principle has in fact been codified in the Criminal Procedure and Evidence Act, [Chapter 9:07] in s 115 C which was introduced by s 28 of Act No. 2 of 2016 (The Criminal Procedure and Evidence Amendment Act) which became law on 10 June 2016. The relevant parts of the section provide as follows:

“115 C Compelling reasons for denying bail and burden of proof in bail proceedings

(1)  In any application, petition, motion, appeal, review or other proceeding before a court in which the grant or denial of bail or the legality of the grant or denial of bail is in issues, the grounds specified in section 117 (2), being grounds upon which a court may find that it is in the interests of justice that an accused should be detained in custody until he or she is dealt with in accordance with the law, are to be considered as compelling reasons for the denial of bail by a court.

(2)  Where an accused person who is in custody in respect of an offence applies to be admitted to bail-

(a)  before a court has convicted him or her of the offence-

(i) ………

(ii) ………

(b)  after he or she has been convicted of the offence, he or she shall bear the burden of

showing, on a balance of probabilities, that it is in the interest of justice for him or her to

be released on bail”

The sum effect of the provisions of s 115 C in so far as they relate to bail after conviction, pending appeal or pending the determination of an application for leave to appeal as the case maybe, is that the applicant bears the onus to show on a balance of probabilities that the interests of justice will be served by his or her admission  to bail. The court should consider the factors set out in ss 117 so far as they may be relevant to the determination of bail pending appeal filed by the convict or appellant as the case may be. What this means is that as much as possible, the applicant must in his or her application address such of the factors as set out in the same section as they may impact on the determination of what the interests of justice would dictate. Section 123 (2) specifically provides that ss 117 and 117A applies mutatis mutandis to bail applications pending appeal or review.

Section 117 (2) provides as follows:

“117 entitlement to bail

1………

2. The refusal to grant bail and the detention of an accused in custody shall be in the interests of 	justice

where one or more of the following grounds are established—

(a) where there is a likelihood that the accused, if he or she were released on bail, will—

(i) endanger the safety of the public or any particular person or will commit an offence referred to

in the First Schedule; or

(ii) not stand his or her trial or appear to receive sentence; or

(iii) attempt to influence or intimidate witnesses or to conceal or destroy evidence; or

(iv) undermine or jeopardise the objectives or proper functioning of the criminal justice system,

including the bail system;

or

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

In so far as bail pending appeal is concerned, it will be in interests of justice to deny the applicant bail pending appeal if there is a likelihood that the applicant may endanger the safety of the public or any particular person or that the applicant will commit a first schedule offence, or the applicant will not prosecute his or appeal or turn himself or herself in to serve sentence should the appeal be dismissed or the applicant may disturb the public order.

In determining whether or not to grant an applicant bail pending appeal, the courts have approached the issue somewhat differently but achieving the same result. It is settled practice that the court considers the prospects of success on appeal as the first point of call. A consideration of ss 115C (2) (b) and 123 shows that there is nowhere in those provisions where it is provided that the court must consider prospects of success. At best s 115 C (2) (b) refers to the onus being placed upon the applicant to show on a balance of probabilities that “it is in the interest of justice for him or her to be released on bail.” In my reasoning therefore and reading from the provisions of the law which l have cited, the law must be read as providing that bail pending appeal may be granted where the interests of justice permit and that it is the applicant who must show on a balance of probabilities that the interests of justice so permit.

In Taurai Chikwizu v S HH 396/17, I discussed the impact of s 115C on applications for bail pending appeal. I reasoned then that the relationship between s 115C (2) (b) which refers to the need for the applicant to show that it is in the interests of justice to grant him or her bail pending appeal and the prospects of success principle was that, where there are no reasonable prospects of success on appeal, then it would not be in the interests of justice to admit the applicant to bail. I however did not discuss the purport of the applicant bearing the burden and its discharge. The applicant can only discharge the burden by placing before the court such facts as will satisfy the court that  the interests of justice permit the grant of bail – pending appeal. The new dimension of placing an onus or burden lifts the ladder a bit high. The applicant should adduce evidence in discharge of the burden. The evidence can be in the nature of affidavits, statements and documents as would back up the applicant’s contention that the interests of justice permit the applicant’s release on bail pending appeal. The evidence must deal with matters which the court considers as set out in ss 117 aforesaid.

Reverting to prospects of success, it would appear therefore that by arguing that he has prospects of success on appeal, the applicant will be saying no more than that it would be in the interests of justice that an applicant whose appeal enjoys prospects of success should be favourably considered for bail to avoid or minimize prejudice to him if the appeal court determines that he should not have been imprisoned or it reduces the prison term to a lesser period which the applicant would have exceeded whilst serving by the time the appeal is determined. Prospects of success is therefore one of several factors which the applicant should argue in discharging the burden of showing that the interests of justice permit his release on bail pending appeal. The applicant should adduce further evidence to show that there is no likelihood of him committing any of the conduct which in terms of s 117 (2) (a) is or are deemed to justify a court to hold that the interests of justice will be jeopardized.

It is clear that cases decided before the passage of the Criminal Law Procedure and Evidence Act Amendment No. 2/2016 must be read within the context of the onus provision set out in s 115 C (2) (b). I have indicated how the applicant may discharge the onus or burden placed on him or her by s 115C (2) (b). Mere assertions are not sufficient. I will later deal with whether the applicant can be said to have discharged the onus in this case.

The facts alleged by the state were straightforward. The applicant and his accomplices unlawfully entered the complainant’s premises, threatened her with a pistol and machete and stole her property. It was at night. The applicant was arrested on 5 March, 2015 in Harare. He led police on indications and police recovered from him hidden at the back of his house, a pistol and two rounds of ammunition. They also recovered a Samsung tablet from him allegedly bought with the proceeds of the stolen property.

An issue which neither the applicant nor the state counsel  raised related to a splitting of charges in charging two counts of unlawful entry and robbery respectively arising from the same incident. A careful reading of s 131 will show that where a person commits unlawful entry as defined in s 131 (1), the offence is qualified further where the factors mentioned in s 131 (2) are proved. Section 131 (2) reads as follows:

“(2) for purposes of paragraph (a) of subsection (1), the crime of unlawful entry into 	premises as committed in aggravating circumstances if, on the occasion on which the crime was 	committed, the convicted person –

(a) entered a dwelling house; or

(b) knew there were people present in the premises; or

(c) carried a weapon; or

(d) used violence against any person, or damaged or destroyed any property, in effectively the entry; or committed or intended to commit some other offence.”

In casu the robbery charge in count should not have been separately charged. The facts

alleged	.. such relationship, if any.

In the circumstances of this matter, therefore, claimant was not in possession of the goods at the time of the attachment. Accordingly, no presumption of ownership arises in her favour.

Further, the goods were attached at an association members’ place of residence.

I agree with Mr Mushuma that the effect of order 2A r 8A and 8B of the High Court Rules, 1971 is to make members of an association liable for the debts of the association otherwise there would be no need for the proviso to r 8B (2) to require that where a writ of civil imprisonment is sought, the civil imprisonment proceedings should have the associate. An associate is a member of the association. The interpretation section of the order makes this clear. It reads:

“7 Interpretation in order 2A

In this order -

‘associate’, in relation to –

….

An association other than a trust, means a member of the association.”

In the result, the following order will issue.

1.	The claimant’s claim to all the moveable property which was placed under attachment in execution of judgment in HC 10893/15 is dismissed.

2.	All the moveable property attached in terms of the Notice of seizure and attachment dated 29th August 2018 issued by the applicant is declared executable.

3.	The claimant shall pay the judgment creditor and applicant’s costs of suit.

Dube-Banda, Nzarayapenga and Partners, applicant’s legal practitioners

Hamunakwadi and Nyandoro, Claimant’s legal practitioners

Mushuma Law Chambers, Judgment Creditor’s legal practitioners

by the State revealed the offence of unlawful entry into premises committed in aggravating circumstances.

The sentence provided for is set out in s 131 (1) (a) which reads as follows:

“(a) … a fine not exceeding level thirteen or not exceeding twice the value of any property stolen, destroyed or damaged by the person as a result of the crime, whichever is the greater, or imprisonment for a period not exceeding fifteen years, or both, if the crime was committed in any one or more of the aggravating circumstances set out in subsection (2);”

The splitting of charges must have escaped the attention of the judge who reviewed the

proceedings and certified them as being in accordance with real and substantial justice. The splitting of charges being a question of law can be raised by the applicant on appeal or by the appeal court mero motu and an appropriate correction made collapsing the two counts into only one charge of “Unlawful entry as defined in s 131 (1) as read with s 131 (2) and 131 (1) (a) of the Criminal Law (Codification and Reform) Act.”

Despite the splitting of charges as aforesaid and the consideration that this may affect the sentences imposed, I was not persuaded that the applicant would upon a substitution of the sentence be sentenced to anything but a long jail term which would not be far off the 11 year effective which I did not find under the circumstances to be so severe as to induce a sense of shock.

The applicant’s defence was that he was wrongly identified because he did not commit the offence since he was at his house in Harare when the offence was committed. I considered the record of evidence and the well reasoned judgment of the magistrate. The applicant was identified by the complainant and two other occupants who were in the house. It was the applicant who was in possession of the pistol which he fired into the air to induce fear and submission in the occupants where after the applicant and his accomplices stole the property detailed in the charge. The applicant was subsequently identified from an identification parade. A photo album of the identification was produced to the court. He was found in possession of a pistol and the fired cartridge recovered at the scene matched that it was fired from that pistol.

The applicant’s notice of appeal focuses largely on the unreliability of the identification evidence. The magistrate was alive to the follies of identification evidence and was not misdirected in his approach to dealing with that type of evidence. The magistrate set out and applied the approach to identification evidence as laid out in S v Vhera 2003 (1) ZLR 668 (H). In casu, the lights in the house were lit and the witnesses observed the applicant for 20 minutes or so. One witness sat on the bed whilst focussed on the intruders. The witness identified the 1st accused and his convicted co-accused.

The magistrate admittedly did not deal with the evidence of the identification parade in detail. The magistrate noted that the 1st accused was identified at an identification parade by a witness. The accused however consented to the production of the photo album. He also did not raise any issue about any perceived impropriety in the conduct of the parade either in cross-examination or in his evidence in chief. The magistrate understandably did not have to go into detail in his judgment over undisputed evidence of the identification parade. It will be a mammoth task for the applicant to impugn evidence of the identification parade on appeal when the trial court was not seized with the challenge.

This court per order of wamambo j indeed considered the prospects of success of the applicant’s appeal in dealing with the application for condonation of late noting of appeal. As I have sought to demonstrate above, the prospects of success are not eminently without doubt or can one say the likelihood of success is foregone. This must be considered together with other factors most important of which is whether the applicant is likely to abscond. He stands convicted of very serious charges and his chances of success on appeal are marginal. The applicant does not in his application deal with the critical aspect of abscondment. The failure to do so is detrimental and fatal to his application. His application is more in the nature of heads of argument to motivate his grounds of appeal. The applicant does not go into any detail at all about the aspect of abscondment, let alone mentioning so or making an undertaking not to abscond and to stand and receive his sentence if the appeal is dismissed.

A failure to provide or offer sufficient and reasonable surety leaves the court with nothing or no facts from which to weigh the likelihood of the risk of abscondment. The court just does not know who the applicant is in any detail other than as a convict and applicant for admission to bail pending appeal. None of the factors set out in ss 117 of the Criminal Procedure & Evidence in so far as they impact upon considerations which the court may take into account in assessing the justiciability of granting bail pending appeal have been touched upon by the applicant. He thus failed to show that it is in the interests of justice to release him on bail pending. He must prosecute his appeal whilst serving.

Bail was thus refused for the above reasons.

National Prosecuting Authority, respondents’ legal practitioners