Njowa Tichaona v The State

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NJOWA TICHAONA
versus
THE STATE


HIGH COURT OF ZIMBABWE
CHITAPI J
HARARE, 25 March 2021 & 5 May 2021


Bail Pending Trial

Applicant in person
A Masamha, for the respondent


       CHITAPI J: The applicant was charged with the offence of theft. The facts of the
case read like a movie. The allegations on which the applicant was placed on remand by the
magistrate at Harare on 25 January 2021 were as follows. The narrative starts with one
Shadreck Njowa. He is said to have been part of the gang of armed robbers that waylaid a ZB
Bank cash in transit vehicle along Harare Chinhoyi road on 6 January 2021 at the 60
kilometre peg. The cash in transit vehicle was carrying a crew of bank representatives and
security guards in addition to cash in United States of America dollars amounting to
$2 775 000. Shadreck Njowa in turn then gave his son Job Njowa US$100 000 to conceal it.
The US$100 000 was part of the proceeds of the robbery of the ZB cash in transit vehicle.
The applicant is a nephew to Shadreck Njowa.
       Having been given the US$100 000 to conceal by his father Shadreck Njowa, Job
Njowa proceeded to Mhondoro, to the rural home. He surveyed the area for a hidden place to
conceal the money. Unbeknown to Job Njowa, his cousin, the applicant’s was busy thanking
his lucky stars in that out of the sight of Job Njowa, the applicant was observing Job Njowa
digging a hole in the ground and burying a silver pot in the hole and covering it. The
applicant after the burial of the silver pot and out of curiosity exhumed the silver pot from its
burial hole. It was indeed the applicant’s lucky day as he helped himself to money which Job
Njowa had placed in the pot before burying the pot.
       The saying goes that a fool and his money are soon parted. The proverb means that a
person who acts recklessly with their money soon loses the money. Foolish people are
unlikely to maintain their hold on easily acquired wealth. The applicant was a caricature of
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the proverb. He could not wait to show case his lucky find. Itching to spend his find and join
the moneyed circles of show off people, the applicant went on a spending spree at the local
business centre called “the Turf” in Mhondoro-Ngezi. The applicant could not wait to rest his
feet from the long walks he used to undertake as a pedestrian. He immediately bought two
Honda Fit motor vehicles, hardly, a mean feat for the applicant.
       I should record that whilst the applicant watched in hiding, Job Njowa digging the
money grave, one Luxury Mutumwa, a local adult male person also stealthily watched the
applicant as the applicant exhumed the hidden Treasure. Lucky Mutumwa would not be left
out of the unexpected pay day. He confronted the applicant and threatened to report the
discovery if the applicant did not buy Lucky Mutumwa’s silence with part of the loot. Lucky
was bribed with USD$5 000. Unfortunately for him when the secret burial of the money was
discovered and the events trial established by police, Lucky was unlucky in that he was
arrested after he had only used US$100. He still had USD$4 900 in his possession. The
complainant’s bank was by contrast to Lucky, who was unlucky, lucky in that police
recovered US$4 900 for the banks credit. Additionally, police recovered the two Honda fit
vehicles and US$15 600 from the applicant. The applicant and Lucky Mutumwa made
indications to the police at the site of the money grave.
       On the above facts, the applicant was placed on and is on remand for the theft. The
applicant filed this application for his release on bail before this court instead of the remand
court. The remand court magistrate had jurisdiction to hear the bail applications in the first
instance. Applicants whose cases fall outside the Third Schedule to the Criminal Procedure &
Evidence Act [Chapter 9:07] should as a rule apply for bail in the first instance to the
magistrate. Whilst the High Court because of its original jurisdiction over all criminal cases
in Zimbabwe would have jurisdiction to deal with and determine every bail application in
respect of every offence, it is proper for the High Court in its discretion to refuse to exercise
its original jurisdiction and refer an application for bail to the magistrate court where the
magistrate has jurisdiction to determine a bail application. The principle of subsidiarity must
be respected and applied unless to do so would result in an injustice prejudicial to the
applicant in a bail application.
       In terms of the subsidiarity principle, the High Court should exercise a subsidiarity
role to hearing at first instance bail applications in cases where the magistrate does not have
jurisdiction and leave the task of hearing the bail applications where the magistrate court has
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jurisdiction to that court. The applicant can then petition this court on appeal in terms of s
121(1) as read with s 121(2)(b) of the Criminal Procedure & Evidence Act, [Chapter 9:07] on
appeal or review in terms of appeal and of the review procedures. In casu, the applicant made
a direct application to a judge of this court because he was not aware of the procedure. As a
self-actor he had gathered that almost everyone connected with the case involving the ZB
Bank cash heist had approached this court for bail. I indeed dealt with several bail
applications arising from the cash heist aforesaid. I have exercised my discretion to agree to
exercise the original jurisdiction of this court to determine the bail application as provided for
in s 116(a) of the Criminal Procedure & Evidence Act. My discretion has been influenced by
the fact that the applicant is unrepresented and is therefore wanting in knowledge of
procedural law. Secondly, several cases for bail involving accused persons arrested for the
robbery in question herein or as receivers of the stolen loot have had their applications
determined by this court at first instance or an appeal.
       The respondent’s counsel Mr Masamha filed a response in which he consented to the
applicant being granted bail. Counsel submitted that the applicant was not involved in the
actual robbery. He described the applicant as an “opportunist who grabbed a self-help chance” . It
was submitted that the applicant did not flee or attempt to do so on arrest. He co-operated
with police and made indications on how he recovered the money. I tend to agree that the
State will have some work to do to prove its case for theft. The whole narrative reads like in
the movies. Ex abunda cautela, I directed that the investigating officer should be called to
clarify the facts of the case and the circumstances of the arrest of the applicant.
       The investigating officer testified that the applicant was brought to Mbare police
station by the arresting details. The applicant admitted to having dug out the money from a
hole on the around where a pot had been hidden by his cousin. The applicant co-operated
with the police and made indications at the scene. He also led police to Lucky Mutumwa’s
house where US$4 900 was recovered from lucky. The investigating officer denied that
Lucky had been given $10 000 and had used US$100. He testified that according to Lucky
Mutumwa, the applicant gave Lucky US$5 000 and Lucky used US$100. I enquired of the
applicant to advise how much he had found in the pot. He indicated that it was the whole
US$100 000. I enquired on where rest of the money was since police recovered only US$26
000 and two Honda Fit vehicles. In response the applicant responded that the arresting police
details had taken close to US$70 000 which was in a satchel which they recovered from him
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upon arrest and through the applicant’s indications. This revelation was very worrying
because if true, then the arresting details would be taken as rogue and criminal elements who
also committed theft of exhibits and performed duty contrary how they should discharge their
duties.
          I directed the investigating offices who was still in attendance to cause the attendance
before the court of the arresting team of Constables Ezekiel Maheya, Sipanera Gilbert and
Lazarus Muomba. The police officers duly attended before me on 25 March, 2021. They had
each prepared an affidavit detailing how the arrest of the applicant was effected and the initial
investigations made at the scene and recoveries of exhibits made. The police officers testified
in addition to their affidavits which were produced in evidence. They denied the applicants’
assertion that from Mhondoro the arresting team together with the applicant passed through a
certain house which was said to belong to the boss of the arresting details where they
produced the recovered satchel with money. They denied the applicants’ assertion that at the
police station it was observed that the satchel only had money recovered on the person of the
applicant and the money recovered from Lucky Mutumwa. According to the applicant, the
bulk of the money was not accounted for by police who at the police station again went away
with the satchel to another office leaving the applicant chained to burglar bars at Mbare
police station. I resolved that I should not make a determination on the applicants’ claim
which the arresting details denied. I refrained from doing so because it appeared to me that
the applicants’ complaint is a separate case which requires its own investigation. I therefore
order the Registrar that a copy of this judgment should be forwarded to the Commissioner
General of Police and to the Prosecutor General so that they can give thought to the
applicant’s allegations against the police and take whatever action they consider necessary on
the carrying out of possible separate investigation of the applicants’ claims of improper
conduct and theft by the arresting team.
          Reverting to the bail application, I am in agreement with the prosecutor Mr Masamba
that the respondent is a proper candidate for bail for reasons already outlined. The respondent
did not establish on a balance of probabilities compelling reasons to deny the applicant bail. I
have considered the bail conditions suggested by the respondents counsel and I find them to
be reasonable.
          The following order shall issue-
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       (a) The applicant be and is admitted to bail pending trial in case no CRB HRE P
           712/21.
       (b) Applicant shall deposit ZWL$5000.00 with the Clerk of Court of Harare
           Magistrates Court.
       (c) Applicant shall reside at house No 25 Mudyamhembwe Street, Mufakose until the
           matter is finalized.
       (d) Applicant shall report every Fridays between 6:00am and 6:00pm at Marimba
           Police Station.
       (e) Applicant shall not interfere with State witnesses copies.
       (f) Copies of this judgment shall be delivered on The Prosecutor General and the
           ZRP Commissioner General.




National Prosecuting Authority, respondent’s legal practitioners