Owen Kuchata v The State

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                                                                                       B952/20


OWEN KUCHATA
versus
THE STATE


HIGH COURT OF ZIMBABWE
CHITAPI J
HARARE, 11 February, 2021


Bail Pending Trial based on changed circumstances


Applicant in person
T. Kasema, for the respondent

       CHITAPI J: The applicant applied for bail pending trial before FOROMA J on 26
June, 2020. The application was dismissed on 24 July, 2020. The reasons for judgment are
contained in judgment HH 486/20. That judgment sets out the background to the case. I will
however briefly refresh on the background so that this judgement is understood in context. It
is also noted that there is a further background to the application which FOROMA J did not
deal with but is relevant to the bail applications.

       The applicant and his accomplices. Borman Ngwenya, Silas Pfuka and Solomon
Makumbe were initially charged with two counts namely, “Possession of weaponry for
sabotage or terrorism as defined in s 27 of criminal Law (Codification & Reform) Act,
Chapter and contravening s 9 (1) (a) (b) of the Money Laundering and Proceeds of Crime
Act, [Chapter 9:24]. The brief details of the charges were that, in count one, the applicant and
his accomplices aforesaid were arrested by the Police along Jumbo road in Mazowe whilst in
possession of weapons for sabotage which they intended to use to commit an act of sabotage
by bombing Alpha Omega Dairy Processing Plant. The weapons were listed as four fertilizer
bombs manufactured out of petrol, fertilizer, nails and sand. In the second count the details
were that the applicant and his accomplices provided funds with intent that such funds should
be and were utilized to purchase empty bottles, fertilizer, petrol and nails to be used to
manufacture the fertilizer bombs in count one.

               When the applicant and his accomplices appeared before the magistrate for
trial there was a separation of trials because whilst the applicants’ accomplices denied the
charges, the applicant pleaded guilty to the charges and was duly convicted by the magistrate
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on 16 February, 2016. He was sentenced to nine years imprisonment with one year suspended
on conditions of future good behaviour. The sentence in the second count was ordered to run
concurrently with the sentence in the first count.

                As regards the applicant’s accomplices who pleaded not guilty, they were
subsequently tried by the regional magistrate at Harare and were acquitted on the same
charges that the applicant had pleaded guilty to. I note in passing a legal quagmire in that the
same court that convicted the applicant upon his plea of guilty acquitted the accomplices on
the same facts and evidence. The quagmire not being an issue for determination I leave it
aside.

                Subsequent to the conviction of the applicant and acquittal of the three
accomplices, the state indicted the applicant and the three accomplices on a charge of
Treason as defined in s 20 (1) (b) of the Criminal Law (Codification and Reform) Act. The
four of them appeared before me for trial on 18 September, 2018 whereupon the trial was
postponed sine die to deal with dilatory pleas of autre fois convict raised by the applicant and
autre fois acquit raised by the three accomplices. Judgment in the matter in now available. In
terms of the judgment, the pleas succeded in part in that I ordered that the Treason charge
could not be founded on facts surrounding the actions of the applicant and his accomplices as
they were alleged in the proceedings in the magistrates court. I determined that the trial on
the Treason charge could proceed in relation to alleged acts which did not form the basis of
the magistrates court cases wherein the appellant was convicted on the plea of guilty and the
three accomplices acquitted.

         It is necessary to record that consequent on the postponement sine die aforesaid, the
accomplices Borman Ngwenya, Silas Pfupa and Solomon Makumbe were admitted to bail
pending trial by consent. In relation to the applicant no bail application was made because it
was considered to be an exercise in futility since the applicant was serving a lengthy sentence
of eight years imprisonment.

                In dismissing. The bail application FOROMA J correctly noted that in the case
of a Treason charge the applicant had an onus to show on a balance of probabilities that
exceptional circumstances exist which in the interests of justice permit the release of the
accused person on bail. The learned judge noted that the applicant had pleaded an inordinate
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delay in having the postponed sine die trial completed whilst he remained in custody whilst
the co-accused were on bail. The learned judge found that the delay in having the trial
progress was not the fault of the State and was therefore not an exceptional circumstance.

       The approach to the application is governed by s 116 in proviso (ii) thereof, wherein it
is provided that where a bail application pending trial made by an accused person has been
refused, a further application may be made to the same judge; magistrate 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 first application. The facts must have arisen or been
discovered after the determination.
       In considering this application, it should be kept in mind that the applicant has
benefited from the Presidential Clemency Order of 2020 and would have been released in
regard to his conviction were it not for the fact that he is in custody consequent on the
indictment for Treason. His accomplices were granted bail on the same charge and facts
pending decision on the dilatory pleas which they and the applicant raised. The court has now
determined the outstanding hurdle in trial continuance. In my view, this is a new fact which
entitles the court to reconsider whether or not the applicant should be granted bail.
       In considering the application, it is noted that the response by respondent’s counsel
Mr Kasema to the application was a simple allegation that there was no change in
circumstances to warrant revisiting FOROMA J’s judgment. In the course of argument, I
asked Mr Kasema to address me on whether or not the indictment against the applicant and
his accomplices had not lapsed. Counsel filed a written response in which he argued that the
State was not at fault and on the authority of S v Matapo HH 184/10 and S v Matapo HH
142/10 he argued that whilst the indictment would lapse after six months, the blame lay on
the applicants and accomplices who had made interlocutory applications still to be
determined. I acknowledge Mr Kasema’s response. I however I did not to determine the issue
because I subsequently realized that the applicant and his co-accused had pleaded not guilty
to the charge before raising their dilatory pleas. In such a case the indictment remains holding
and all that the applicant could do would be to demand a verdict upon that not guilty plea.
       The applicant stands in the same position as the co-accused who were granted bail
without argument or by consent. The only reason why the applicant was not granted bail was
because he was serving prisoner. Since the applicant has served that sentence, he stands in the
same position as the others. It is in my view an exceptional circumstances which in the
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interests of justice qualifies the applicant to be considered favourably for bail, the fact that he
has served his just deserts and is now on trial arising out of facts which are really not
divorced from the case for which he was convicted. There is no suggestion that the applicant
will not stand his trial or commit a similar offence. It is not argued that he may interfere with
witnesses and in any event trial actually started because the applicant and his accomplices
pleaded to the charge. This is also a factor which was not brought to the attention of
FOROMA J who had he been conscientized on this, he would have dealt with the application
as one for bail in the course of the trial pending the determination of dilatory pleas.
       The applicant at the time of his conviction in the Magistrate Court was the leader or
President of a political party called Zimbabwe People’s Front Party (ZPFP) which was
formed on 26 September 2013. I enquired of him in the bail hearing whether the party was
still active. The applicant indicated that following his incarceration, the party just disbanded
as it was leaderless. The applicant is just an ordinary citizen now with no political power to
exercise. He has a fixed abode and a family and his roots are in Zimbabwe. He is a man of
little or no means at the moment and could not even afford to hire a legal practitioner to apply
for bail on his behalf. I consider that the applicant has established exceptional circumstances
which warrant that in the interests of justice, he be granted bail as there is really little to
differentiate him from the co-accused save that he served time for the offence for which he
was convicted. This does not disqualify him as a suitable candidate for admission to bail. The
following order is made
       IT IS ORDERED THAT
       The applicant is admitted to bail on the following conditions
       1. He deposits ZW$5000.00 with the Registrar of the High Court.
       2. He shall reside at 36 Fleming Road, Southerton Harare
       3. He shall report at Southerton Police Station every Fridays between 6.00 a.m. and
           6.00 p.m.
       4. He shall not interfere with witnesses.


National Prosecuting Authority, respondent’s legal practitioners
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