THE State V Nyasha Mutasa

### Preamble
1
HH 157-21
B 364/21
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THE STATE

versus

NYASHA MUTASA

HIGH COURT OF ZIMBABWE

FOROMA J

HARARE, 5 March 2021 & 9 April 2021

Bail Application

L Mbereko, for the applicant

B Murevanhema, for the respondent

FOROMA J: Applicant is jointly charged with another one Tawanda Handikanganwi Karase. The allegations are that they together with other accomplices still at large were involved in two counts of armed robbery at Kuwadzana 5 Shopping Centre and at Tichagarika Shopping Centre Glen View.

Applicant claims that he was not involved in any of the 2 robbery incidents and considers that he has been implicated falsely by one of the co-accused one Sean Andile Dhlamini who was arrested in possession of applicant’s vehicle a blue Mercedes Benz which the said Dhlamini was found in possession of by the police.

According to the applicant the said S A Dhlamini falsely implicated him.

At the time of the robbery at Kuwadzana 5 the robbers used a blue Mercedes Benz which happened to belong to the applicant and applicant in his bail statement claims he lent his aforesaid vehicle to Andile Dhlamini who did not disclose what he wanted to use it for. He also was unaware that the vehicle had been used in a robbery. What seems to be strange is that the applicant did not describe his recently acquired vehicle by registration number. The vehicle was a recent acquisition bought on the 8 November 2020 according to the affidavit by one Simbarashe Maruziva admitted in the applicant’s bail hearing by consent of applicant. As a result the impression was created that it had recently been imported and had not yet been registered with Central Vehicle Registry. It was at the court’s insistence that the ownership of the Blue Mercedes Benz was revealed through the investigation by police. In brief applicant had bought it from one Tawanda Nelson Manando for US$2 500 and only $1 000 had been paid towards the purchase price and applicant would only be given the registration Book and agreements of sale after payment of the full purchase price.

When the vehicle was used in committing the robbery it did not have registration plates. Applicant did not explain how it was that he was prepared to loan his new acquisition not even registered in his own name to Dhlamini. He did not even describe it by reference to the registration number and yet it was lawfully registered. No loan agreement was produced to support the loan claim. Applicant did not explain the time when applicant would use the vehicle before returning it and what rental the applicant would receive or had received from the borrower (Dhlamini) if any. All these unsatisfactory features place doubt on the claim that the Mercedes Benz was loaned to Dhlamini. Police can be excused in their belief that the vehicle was used as a get away car by applicant and his crime syndicate as indicated by Dhlamini who implicated the applicant.

The state called one Timothy Marisa to testify in support of its opposition to bail for applicant. He as the investigating officer indicated that the applicant confessed to actual participation in the robbery alleged and that he received the sum of $4 960 as his share of the loot. He further testified that in respect of count one he provided his vehicle as a get away vehicle for his syndicate members and that he did not believe that the applicant had loaned his Mercedes Benz vehicle as claimed by applicant. He further indicated that applicant had also made indications to police in terms of which applicant showed how they had committed the crime. The alleged indications were challenged by the defence who alleged they were illegally obtained. The Investigating officer also testified that applicant’s wife had indicated that the R4 960 recovered from the applicant’s residence was brought by the applicant after the robbery. When the court considers the investigating officer’s testimony in particular that applicant confessed to participating in the robbery in count 2, that his Mercedes Benz was recovered as a get away vehicle used by his co-accused who implicated him and the rather unconvincing story that the applicant had loaned his Mercedes Benz to S A Dhlamini, alleged recovery of R4 960 from the accused’s residence (wife) and the indications that accused allegedly made which were incriminating one gets a clear indication that the case against applicant is so overwhelming on the face of it there is a real risk that applicant might abscond in order to avoid the heavy prison sentence that he faces on conviction. For the foregoing reasons the court is satisfied that applicant is not a proper candidate for bail.

In the circumstances the applicant’s application for bail is dismissed.

Pundu and Company, applicant’s legal practitioners

National Prosecuting Authority, respondent’s legal practitioners