Ignatious Bumhira v The State

### Preamble
1
HCMTJ 44/24
HCMTCR 1696/24
5
HCMTCR 1696/24
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IGNATIOUS BUMHIRA

Versus

THE STATE

HIGH COURT OF ZIMBABWE

SIZIBA J

MUTARE, 30 September & 3 October 2024

Application for bail pending trial

Mr G. Manokore, for the applicant

Ms T. Katsiru, for the respondent

SIZIBA J: The applicant has approached this court seeking to be admitted to bail pending trial in terms of s 117A of the Criminal Procedure and Evidence Act [Chapter 09:07]. He is facing a charge of robbery contrary to s 126(1) of the Criminal Law (Codification and Reform) Act [Chapter 9:23]. In terms of s 50(1) (d) of the Constitution of Zimbabwe, the applicant has a constitutional right to be admitted to bail. He should be denied bail if there are compelling reasons to show that his admission to bail will defeat the interests of justice. Section 117(2) of the Criminal Procedure and Evidence Act outlines such factors that demonstrate that an accused’s admission to bail may put the interests of justice at stake. In matters of this nature, s 115(c) (2) places the burden upon the applicant to show that the interests of justice would not be defeated by his or her admission to bail.

In the case at hand, the robbery occurred in the early morning hours of 4 September 2024 at Fawcett Security premises in Chipinge. Firearms were used by a gang of robbers who were using a motor vehicle. A sum of US$111 411and ZAR1 281 320 was stolen. So far, the applicant and three other suspects have been arrested while the rest of the suspects are said to be at large. The question to be decided by this court is whether the applicant is a proper candidate for admission to bail.

The applicant’s version is that on 7 September 2024, he was at home at number 610, Budiriro 1, Harare when he was called by officers at CID Homicide in Harare to come to their offices. He complied. Upon arrival, he was requested to assist in locating one David Nyakauru who was alleged to have been involved in the robbery in the case at hand. After the efforts to locate the said David Nyakauru did not materialize, he was then detained and later taken to Chipinge Police station whereupon he was charged with the offence in this matter and then taken for remand in court. He maintains that he was in his place of residence in Harare at the alleged time when the offence was committed. The State alleges that the applicant was implicated by the third accused one Tendai Mupatsi. The said third accused denies implicating the applicant and he deposed to an affidavit whereupon he says that he only told the police that the applicant could assist in locating David Nyakauru. The third accused in question places himself at the crime scene by his sworn evidence and exonerates the applicant in saying that he was not at the crime scene. There is no other document or statement that was placed before me to show that the third accused ever implicated the applicant in the robbery. The State’s position on this aspect is not persuasive.

In para 6 of the State’s response to the bail application, there is an assertion that the motor vehicle and weapons which were used in the crime scene were recovered through the indications of accused persons. At the hearing of the matter, I inquired if these items had been recovered through applicant’s indications and counsel for the State indicated that the items had not been recovered from the applicant. State counsel was clear that there was no hope of availing any copies of indications to the court. The applicant was said to be linked to the offence only through the US$1 010 that was found at his wardrobe. The applicant’s explanation was that this amount was his lawful earnings which he had kept so as to pay school fees for his children. He survives by selling second hand clothes. Surely such a paltry sum of money cannot be linked to the sums of over one hundred thousand United States dollars and over a million Rands that were stolen from the scene of crime. Mr Manokore also argued that the amount that was recovered from the applicant could only be traced to the crime scene by way of serial numbers as it was small. I agree.

It is common cause that the applicant has two pending allegations for robbery, one is with CID Homicide in Harare being DR 39/08/22 and Rhodesville CR78/08/24. Both cases are not yet in court. It was argued by counsel for the applicant that the fact that these cases have not yet been registered in court weighs against the State as the cases could have been disregarded since the applicant is not on remand. State counsel could not shed any light on any of these cases.

Robbery is a serious offence. It is a third schedule offence wherein the applicant has a burden to show that the interests of justice would not be defeated by his admission to bail. The discretion that the court exercises in deciding whether or not to grant bail to a suspect is a delicate balancing of the interests of justice in ensuring that the suspect will stand trial and also not be a danger to the community whilst outside of remand prison which consideration should be balanced with the suspect’s right to liberty and the presumption of innocence. A court of law cannot exercise such discretion in a vacuum, it will depend on the evidence or information placed before it. In Madzokere and Others v The State SC 8/12 at p 21 of the cyclostyled judgment, Malaba DCJ (as he then was) articulated the legal position as follows:

“The purpose of the exercise of the discretionary power vested in the court under   s 117 of the CPE Act is to secure the interest of the public in the administration of justice by ensuring that a person charged with a criminal offence upon a reasonable suspicion of having committed it will appear on the appointed day to stand trial.  It is for that purpose that s 117 of the CPE Act provides in effect that upon sufficient evidence being available to justify it, a finding that an accused person is likely not to stand trial when released on bail is a relevant and sufficient ground for ordering continued detention of him or her pending trial.

Section 117 of the CPE Act is also based on the principle that, regard being had to the presumption of innocence which is a fundamental right guaranteed under the Constitution to an accused person awaiting trial, he or she must be released on bail on appropriate conditions if the same object of ensuring his or her appearance at the trial can be achieved.

The question for determination is whether on the facts available and regard being had to the presumption of innocence to which the appellants are entitled, was the court a quo justified in finding that there was a likelihood that they would not stand trial if released on bail even with stringent measures to ensure close monitoring by the police.  Only if the finding is justified by the available evidence can it be said that the likelihood of the appellants not standing trial if released on bail is a relevant and sufficient ground for depriving the appellants of their liberty pending trial in terms of s 117 of the CPE Act.” (My emphasis)

In the case at hand, there is no evidence that has been placed before me to convince me that the applicant is linked to the robbery that was committed in Chipinge. State counsel tried her best effort in opposing bail but upon further probing from my part in seeking to understand the stance taken by the State, she indicated that she was at the mercy of the court. If there was some evidence linking the applicant to the robbery, one would agree that the applicant could be induced to flee by the prospect of a lengthy prison term as was the case in Jongwe v The State SC 62/02. The two pending cases which have not yet matured enough to have the applicant placed on remand up to now do not establish any propensity to commit crimes of robbery on the part of the applicant. State counsel’s submission was that all the grounds of opposition to bail should be considered cumulatively. I agree, but even then, there is nothing showing that the State has a strong case against the applicant that can induce the latter to flee and not stand trial. To the contrary, the State case is very weak as against the applicant for now. It is common cause that the applicant has a fixed abode at the address that he has provided. He has a passport that he is prepared to surrender. He has challenged the State that prior to the robbery and before, he never communicated with any of the suspects and up to now the State has not established that his assertion is a lie. He has, in my view, managed to demonstrate to this court that the interests of justice would not be defeated by his release on bail pending trial.

The investigating officer has said that the community in Chipinge will lose confidence in the judiciary if the suspects are granted bail. Well, that is understandable because of the prevalence of robbery cases which are now of public concern in this country and which are equally of great concern to the courts, but at the same time, bail cannot be denied to a deserving applicant simply because of public perceptions where the State has failed to provide facts justifying an accused person’s continued incarceration. Such public perceptions are relevant in cases where there are compelling reasons to deny bail. The judiciary exists to safeguard the interests of the administration of justice as well as the rights of suspects. Each case should be decided on its own merits.

There being no compelling reasons advanced in denying the applicant bail and the applicant having discharged the burden of showing that the interests of justice will not be defeated by his admission to bail, it is thereby ordered as follows:

The applicant be and is hereby granted bail pending trial in case number CRB CHPR89/24 on the following conditions:

He shall deposit a sum of US$600 or local currency equivalent with the Clerk of Court, Chipinge.

He shall surrender his passport to the Clerk of Court in Chipinge.

He shall report twice a week on Mondays and Fridays at CID Homicide, Harare until the matter is finalized.

He shall reside at number 610 Budiriro 1, Harare until the matter is finalized.

He shall not interfere with State witnesses or evidence.

MD Hungwe Attorneys At Law, applicant’s legal practitioners

National Prosecuting Authority, respondent’s legal practitioners