Ndlovu Chingwa Pesi v State

### Preamble
1
HH 174-18
B258/18
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NDLOVU CHINGWA PESI

versus

STATE

HIGH COURT OF ZIMBABWE

NDEWERE J

HARARE, 12 March 2018 & 19 March 2018

Bail Application

Applicant, in person

A Masamha, for the respondent

NDEWERE J: The facts are that on 13 December, 2017, the complainant, Charles Chipimbiro was driving a Toyota Toyoace 3120 tonne truck registration number AEJ 3585 towards Harare along the Harare Bulawayo Road. About 1830 hours, at the robots near Chegutu Hospital, the applicant and his accomplice stopped him and asked for a lift to Afrochine bus stop. The complainant obliged and gave them a lift.

About 400 metres before they got to Afrochine bus stop the accuseds stopped the complainant, indicating that they had reached their destination. The complainant stopped the truck and the applicant who was sitted next to the complainant held the complainant by both hands, throttling him and pushing him for the steering wheel. His accomplice then sprayed complainant with a chemical which temporarily blinded him. They then searched him, took his property and pushed him to the ground. Applicant then got behind the steering wheel, but before he put the vehicle in motion, the complainant got up and jumped onto the loading board of the truck. Applicant drove the vehicle towards Afrochine Company along the old Chegutu – Selous road.

The complainant was on board, on the loading board, shouting for help from members of the public. He later jumped off vehicle, fearing for his life. He got into Intergrity Muparaganda’s motor vehicle. Muparaganda had been driving behind the truck. They started following the truck in Muparaganda’s motor vehicle. When they realised they were being followed, the accused stopped the truck, disembarked and disappeared into the night with the property taken from complainant.

Applicant’s accomplice dropped his Nokia Cellphone 071 50880707 on the seat of the truck. The cellphone led to the arrest of applicant’s accomplice. The call history and direct implication by the accomplice led to the arrest of the applicant at his house in Chegutu.

Applicant denied being involved in the robbery. He said he was not with accused two on the day and time of the robbery. He said the state’s case against him was very weak because none of the robbed property was recovered from him, neither did he do any indications. He said apart from accused two’s implication, there was nothing directly linking him with the offence.

The applicant is not correct that his implication through accused two is the only link that is there between him and the robbery. Para 6 and 7 of the state outline indicates that complainant was stopped by the applicant and his co-accused around 6.30 pm who were asking for a lift. He gave them the lift and applicant is the one who sat next to him. When they stopped the truck, saying they had reached their destination, the applicant who was the one sitting next to the complainant began to throttle him using both his hands and pushing him away from the steering wheel. Applicant is the one who later drove the vehicle.

So clearly, from the state facts, the complainant observed both applicant and accused 2 when they stopped him around 6.30 pm, before it was dark. They spoke to him and he gave both of them a lift. Applicant sat next to him. So from the robots to Afrochine bus stop, the complainant had occasion to familiarize with both of them. He could see them and their features and he heard them speak. Although they later sprayed him with a chemical, temporarily blinding him, he had already had ample opportunity to see them and hear them speak from when they stopped him for the lift up to when they attacked him. So the court has no reason to doubt what is stated in para 8, 10 and 11 of the state outline about applicant’s direct contribution to the robbery. (Para 8, say; para 10 says and para 11 says). When this is taken together with the I.D. parade where complainant positively identified the applicant, this makes the state case against applicant very strong.

The applicant is likely to abscond if released on bail. They absconded at the scene of the offence and had it not been for the cellphone left fortuitously by accused 2, they would not have been caught. So they are different from applicants who surrender themselves after the commission of the offence. Their disappearance after the commission of the offence is an indication that if released on bail, they will abscond.

Furthermore, robbery of a motor vehicle and other property is a serious offence. It is fortunate that they abandoned the truck when they realised that they were being followed. Even the manner in which the offence was committed is very disturbing; two persons stopping an innocent motorist, asking for a lift and then attacking him to take his personal property and the motor vehicle! This shows that the applicant, if released on bail, is likely to be a danger to the unsuspecting motoring public. He is unemployed and is therefore likely to resort to similar crimes in order to survive. The likely sentence, upon conviction, is a lengthy custodial sentence. That too will induce him to abscond. Indeed the court has to balance the interest of applicant’s liberty and those of society at large. Given the circumstances of this case, it is best that applicant awaits his trial whilst in custody.

Investigations are completed so applicant does not have to wait for long for his trial. Consequently, it is ordered that the application for bail pending trial be and is hereby dismissed.

National Prosecuting Authority, respondent’s legal practitioners