Roy Mutizwa and Prince Katemanyoka and Evans Mutizwa v The State

1
                                                                                 HH 191-11
                                                                                   B870/11


ROY MUTIZWA
and
PRINCE KATEMANYOKA
and
EVANS MUTIZWA
versus
THE STATE



HIGH COURT OF ZIMBABWE
BHUNU J
HARARE, 30 August 2011 and 19 September 2011


Mr Munyemeki, for the applicant
Mr Kachidza, for the respondent

Bail Application

       BHUNU J: The three accused persons were denied bail in the Magistrates Court
on three counts of stock theft. Each count carries a minimum sentence of 9 years
imprisonment. The presiding magistrate denied them bail on the basis that they likely to
abscond. He reasoned that the strength of the state case and severity of sentence upon
conviction were likely to induce them to abscond.
        The facts placed before the magistrate were that the accused persons would steal
cattle and fraudulently cleared them with the police using someone else’s stock card other
than that of the owner of the beast. This occurred on at least the first two occasions.
           On the 3 rd occasion the complainant recovered his stolen beast after they had
already taken it to an abattoir for slaughter.
               The accused persons claim to be innocent cattle buyers who inadvertently
purchased stolen cattle from thieves. The mere fact that they actively participated in the
fraudulent clearance of the beasts provides the necessary nexus with the commission of
the offence.
         The third accused claim to have been innocently associating with his co-accused
but that is not born out by the facts. At p 8 paragraph two of the record he claims in his
                                                                                          2
                                                                                  HH 191-11
                                                                                    B870/11

application to be a cattle buyer in association with his co-accused. The paragraph reads in
part:

        “The accused persons have been looking for lawful means of survival i.e. buying
         and selling of cattle as is apparent from the state case. The state case is however
         that in the course of that business they resorted to cattle theft”.

           To make matters worse their accomplices have fled and are still at large. The
magistrate’s fear that the applicants may follow suit are therefore well founded. In the
result the application cannot succeed. It is accordingly ordered that the appeal be and is
hereby dismissed.




Mapaya & Partners, applicants’ legal practitioners
The attorney General’s Office, the respondent’s legal practitioners