Onward Chiwara and Sixty Others v The State

### Preamble
1
HH 386-12
B 771/12
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ONWARD CHIWARA

and

SIXTY OTHERS

versus

THE STATE

HIGH COURT OF ZIMABWE

MUSAKWA J

HARARE, 27, 31 AUGUST, 3and 7 SEPTEMBER 2012

Bail Application

T. Musarurwa, for applicants

B. Taruvinga, for the respondent

MUSAKWA J: The applicants are charged with contravening s 47 of the Criminal Law (Codification and Reform) Act [Cap 9:23]. At the hearing of the matter counsel for the applicants indicated that he was withdrawing the applications by seventh and eighteenth applicants. Mr Musarurwa indicated that the applications by these two would be prosecuted separately.

After hearing arguments for and against the granting of bail I granted bail to the rest of the applicants save for the first, second, third, fourth, sixth and eighth applicants. Full reasons were furnished in court. That notwithstanding, counsel for the applicants subsequently sought written reasons which I now give.

The incident giving rise to the charges arose on 4 August 2012 at Tolrose Mine, Eiffel Flats, Kadoma. There is a dispute regarding the ownership of the mine pitting Patterson Timba and the Rushwayas.

In case number HC 6007/11 which commenced as an urgent chamber application, I granted a provisional order whose effect was the suspension of the directive by the Mining Commissioner for Kadoma District to halt mining operations at Glancane Mine. I also ordered the Rushwayas and Xelod Investments (Pvt) Ltd not to interfere with any mining operations and administrative activities at Glancane Mine.

The order in case number HC 6007/11 was taken on appeal in SC 19/12. The appeal was dismissed on 16 July 2012. The charges in the present matter arose when the applicants were seeking to enforce the order in case number HC 6007/11.

The bulk of the applicants are employees of Tolrose Mine. The annexure to the Form 242 alleges that the applicants hatched a plan to forcefully evict the Rushwayas from Tolrose Mine. In furtherance of the plot the applicants were offered accommodation at a plot where they conducted drills in preparation for the assault. On the day in question the third, fifth and 32nd applicants drove the other applicants to the mine. The applicants were armed with 79 rubber batons, 1 axe and firearms. In the ensuing confrontation there was indiscriminate shooting. As a result one person died and two others were seriously injured.

Having noted the apparently bald averments about the alleged drills conducted in preparation for the attack I sought to be furnished with additional facts regarding how this was established. In particular I sought to know the specific facts that gave rise to reasonable suspicion that each of the applicants committed the offences.

At the subsequent hearing Mr Taruvinga conceded that it was mere allegations that the applicants were accommodated at Plot number 7042 Mndalay Farm, Kadoma where they conducted the alleged drills. This allegation must have been made to pitch the case to conform with the provisions of s 117 (a) as read with the Third Schedule to the Criminal Procedure and Evidence Act. In other words, Mr Taruvinga’s contention was that the offences were planned. Alternatively, he further submitted that in terms of s 117 (6) (b) the applicants must adduce evidence which satisfies the court that it is in the interests of justice that they be released on bail. In this latter instance, there would be no requirement for them to show exceptional circumstances warranting their admission to bail.

If there were no facts linking the majority of the applicants to allegation that they assembled at Plot 7042 Mandalay, it follows that there is a weak link to the offences. It is unfair to simply generalise that they all committed the offences without particularising what each of the applicants did.

Counsel for the applicants submitted that the applicants were armed as they would ordinarily be expected to be so armed in the performance of their duties as guards. He further submitted that the camp aligned to the Rushwayas was equally armed. He further submitted that there was a confrontation in which Police cannot single out who was responsible for discharging the lethal shots.

Having noted the lack of particularisation of each accused’s conduct I further sought to know which firearms were linked to the fatality and injuries. The ballistics report that was subsequently tendered shows that 11 firearms were recovered by Police. It is significant to note that there is no particularisation of some of the individuals from whom they were recovered. However, spent cartridges recovered from the crime scene matched the firearms that were issued to the fourth, sixth, seventh and eighth applicants. There is a concession by the investigating officer that the firearms that killed or injured the victims could not be isolated. This means that any of the four applicants or all of them committed the offences in question.

To give credence to my observations that there was an omnibus approach to the arrests, the investigating officer states that some suspects were caught in cross-fire when a Police crack team rounded up persons who were either fleeing or were at what is termed the camping site.

What emerges from this case is that Timba’s employees embarked on an unauthorised enforcement of a court order. It is not even clear if the final order had been granted. In the process the fourth, sixth, seventh and eighth applicants discharged firearms which resulted in the death and injuries.

I am mindful that this is not a trial. The facts presented do not show a planned or premeditated attack as submitted by Mr Taruvinga. Both offences would therefore fall under Part 11 of the Third Schedule.

S 117 (6) of the Criminal Procedure and Evidence Act provides that-

“Notwithstanding any provision of this Act, where an accused is charged with an offence referred to in—

Part I of the Third Schedule, the judge or (subject to proviso (iii) to s 116) the

magistrate hearing the matter shall order that the accused be detained in custody until he or she is dealt with in accordance with the law, unless the accused, having been given a reasonable opportunity to do so, adduces evidence which satisfies the judge or magistrate that exceptional circumstances exist which in the interests of justice permit his or her release;

Part II of the Third Schedule, the judge or (subject to proviso (iii) to s 116) the

magistratehearing the matter shall order that the accused be detained in custody until he or she is dealt with in accordance with the law, unless the accused, having been given a reasonable opportunity to do so, adduces evidence which satisfies the judge or magistrate that the interests of justice permit his or her release.”

On the other hand, the Third Schedule to the Act provides that-

“OFFENCES IN RESPECT OF WHICH POWER TO ADMIT PERSONS TO BAIL IS EXCLUDED OR QUALIFIED

PART I

1. Murder, where—

(a) it was planned or premeditated, or

the victim was—

(i) a law enforcement officer or public prosecutor performing his or her functions as

such, whether on duty or not, or a law enforcement officer or public prosecutor

who was killed by virtue of his or her holding such a position, or

(ii) a person who has given or was likely to give material evidence with reference to

anyoffence referred to in the First Schedule; or

the death of the victim was caused by the accused in committing or attempting to

commit or after having committed or having attempted to commit one of the following offences—

(i) rape; or

(ii) aggravated indecent assault, or

(iii) robbery with aggravating circumstances; or

the offence was committed by a person, group of persons or syndicate acting in

the execution or furtherance of a common purpose or conspiracy.

PART 11 provides that-

“1……………………………..

2. Murder otherwise than in the circumstances referred to in paragraph 1 of Part I.

3……………………………….

4……………………………….

5. ……………………………...

6……………………………….

7……………………………….

8……………………………….”

In respect of the first, second, third, fourth, sixth and eighth applicants, no evidence was adduced showing that the interests of justice permit their release on bail. In other words, a mere bail statement cannot amount to adduction of evidence as envisaged in the cited provisions. Counsel for applicants somehow thought that the court would give him a further opportunity to adduce the necessary evidence. The hearing of this matter was postponed twice to enable respective counsels to file supplementary submissions. A reasonable opportunity was afforded to the applicants but this was not exploited.

In the case of TungamiraiMadzokere and Others v The State HH 256-12 BHUNU J had occasion to deal with a similar issue although that related to s 117 (6) (a). On the aspect of adduction of evidence BHUNU J had this to say at p 6 of the cyclostyled judgment-

“Each accused has now filed his defence or her defence outline. It is argued that the mere filing of the defence outlines amounts to the adducing of evidence. The Dictionary of English Law by Earl Jowitt 1959 defines evidence as:

“The means employed for the purpose of proving an unknown or disputed fact. It is judicial or extra judicial. Judicial evidence is that which is used on trials or inquiries before Courts, Judges, Commissions etc………………”

A defence outline therefore constitutes no more than a mode of propounding a brief summary of the facts upon which the accused relies in his defence. The defence outline does not constitute evidence of the facts outlined, in so far as it is a mode of proving any unknown or disputed facts.”

The learned Judge further made the following pertinent remarks at p 7 of the cyclostyled judgment-

“The accused person’s dilemma in this case is however, that in a bail application under s 117 (6) the Legislature has shifted the burden of proof onto the accused. He bears the onerous duty of adducing evidence establishing the existence of special circumstances justifying his or her release on bail to the satisfaction of this court. This is tantamount to asking the accused to prove his defence thereby relieving the state of the burden of proof. In the event that the accused fails to prove the validity of his defence at the bail application stage, this will obviously have an adverse effect on the outcome of the trail.

The net effect of the legal matrix in this case is that it is easier for the accused to succeed in the main trial than to get bail under s 117 (6) of the Act where the odds are heavily stacked against the accused. Adducing evidence for the sake of getting bail as is required by law may actually jeopardise the accused’s chances of success in the main trial………………..”

Coming to the allegations against the applicants in the present matter, it was proper that I make a robust approach and distinguish the different roles played by the applicants. It is fair to rule that in respect of the generality of the applicants the facts are not clear as to how they are linked to the offences. In light of the state’s concession regarding absence of proof that they converged at Plot number 7042 Mndalay Farm, Kadoma they were absolved of the burden to adduce evidence as required by s 117 (6) (b). Chances are that without evidence on the specific roles they played the State may not successfully prosecute them.

However, different considerations apply in respect of the first, second, third, fourth, sixth and eighth as they are linked to the allegations by virtue of the ballistic report (in respect of 4th, 6th and 8th applicants). The first, second and third applicants are alleged to have deployed the rest of the applicants. They do not dispute being at the scene of crime on the day in question.

Consequently, that is why the court denied the first, second, third, fourth, sixth and eighth applicants bail. The rest of the applicants save for the seventh and eighteenth applicants were granted bail in terms of the amended draft order.

Mambosasa, applicants’ legal practitioners

Attorney-General’s Office, respondent’s legal practitioners