S v Baloyi (B 92 of 2014) [2014] ZWHHC 67 (6 February 2014)

1 HH 67-14 B92/14 GEDION BALOYI versus THE STATE HIGH COURT OF ZIMBABWE MAWADZE J HARARE, 5 and 7 February 2014 Bail Application – Appeal Adv. T. Mpofu, for the appellant Ms S. Ferro, for the respondent MAWADZE J: This an appeal against the decision of the Provincial Magistrate stationed at Harare on 22 January 2014 in which he dismissed an application by the appellant for bail pending appeal. The appellant was arraigned before the Provincial Magistrate and charged with contravening section para 35 of the Schedule for the Police Act [Cap 11:10] as read with s 29 and 29A(1)(b) of the same Act i.e. “Acting in any manner prejudicial to the good order or discipline or reasonably likely to bring discredit to the Force”. In view of the issues raised in the grounds of appeal and the submissions by both counsel for the appellant and the respondent, I need to quote how the charge is couched “In that on 8th day of October 2012 at CID Serious Fraud Squad Office, Harare, the accused being a Senior Officer of the ZRP, did wrongfully and unlawfully instructed number 043700Z Detective Inspector Masara and the Investigating Officer (name not given) not to detain in cells, one Nevermind Kufakunesu who was being accused of having defrauded Batsirai Mupindu of some dressed chickens valued at US $21 175- 26 as the said Nevermind Kufakunesu was his relative thus the accused acted in a manner prejudicial to good order or reasonably likely to bring disrepute to the organisation”. The appellant is an Assistant Commissioner in ZRP and based at Police General Headquarters as Senior Staff Officer (Internal Investigations). The facts giving rise to this case are that one Batsirai Mupindu (complainant) supplied some chickens valued at about US$21 000-00 to one Nevermind Kufakunesu (suspect) who in turn sold the chickens to TM Supermarket and was to remit the money to the complainant after deducting his commission. HH 67-14 B92/14 The suspect did not remit the money after being paid by TM Supermarket, he was evasive and this prompted the complainant to report to ZRP Harare Central and was referred to ZRP Mbare because the incident happened within the jurisdiction of ZRP Mbare Station but because of the serious nature of the case he was referred to CID Serious Fraud Squad Harare. It was in the process of dealing with this matter that the appellant and a number of CID details were sucked in this dispute now before the court. As per state outline the appellant was telephoned by a female officer Inspector Sitembele Mhlanga Officer In-Charge Traffic Chivhu who claims that the suspect is a son to her cousin (Mhlanga). Mhlanga is said to have complained to the appellant that the suspect was being harassed by CID Detectives Serious Fraud for a case which was purely civil. In her evidence as a defence witness Mhlanga said her report/complain to appellant who was in charge of Police Internal Investigation was the CID details were demanding a bribe from the suspect. It is common cause that Mhlanga and the appellant facilitated the meeting which then occurred in the appellant’s office with the suspect for the appellant to attend to the complaint. It is alleged the suspect on visiting the appellant at his office narrated his story/allegations involving this dispute with the complainant. As per the state outline the appellant referred the suspect to the Investigation Officer. The pertinent accusation in the state outline is that the suspect could not be detained in cells because the appellant’s instructions and influence as he was related to this suspect. The State alleges that suspect has not since returned to Serious Fraud Squad Offices in order to have investigations finalised, he is at large and whereabouts are unknown. The appellant who was unrepresented pleaded not guilty to the charge. In his defence outline adopted as his evidence the appellant said when suspect came to his offices after being referred by Mhlanga to lodge his complaint he realised the suspect’s allegations were baseless. The appellant said he realised that suspect had a case to answer and he referred the suspect to the Investigation Officer. He was given the Investigations Officer’s details by the suspect. He advised the Investigation Officer that he was referring the suspect to the Investigation Officer (name not stated) so as to deal with the matter. After a while he telephoned Investigation Officer who confirmed that suspect had arrived. Thereafter on some other day he had a meeting at PGHQ with the complainant, the suspect and CID details. The appellant said the suspect did not disappear the day he referred him to the Investigation Officer and that even after this meeting at PGHQ he later learnt that the suspect, complaint and CID details had further meetings until the suspect later vanished. HH 67-14 B92/14 In reply to this allegations the appellant in his defence outline and evidence stated the following:- (a) that the suspect is not his relative but was referred to him by Mhlanga for the first time (b) that he did not have an interest in the matter save to deal with the alleged complaint raised by Mhlanga and later by suspect which he found baseless. (c) that he did not instruct the Investigation Officer or any CID officer not to detain the suspect at any stage and that Investigation Officer was free to detain suspect if he so wished. (d) that the suspect, complainant, Investigation Officer and CID details later had many meetings at Serious Fraud Squad Offices after the first meeting he had with the suspect. (e) That the prerogative to detain a suspect lies with the Investigation Officer and that a contrary instruction to Investigation Officer not to detain a suspect would be unlawful and had to be disobeyed or complaint be referred to Investigation Officer’s superiors. All in all the appellant denied the charge either by instructing anyone not to detain suspect or interfering with the investigations in any manner. After a protracted trial the appellant was found guilty as charged and sentenced to 12 months imprisonment with 3 months conditionally suspended on the usual conditions – effective 9 months. Dissatisfied with both conviction and sentence the appellant filed a notice of appeal pp 11-15. In the grounds of appeal challenging the conviction the appellant stated that it was not proven beyond reasonable doubt that suspect was released on account of his instruction or influence and that the evidence led did not support such findings but exposed the glaring inadequacies in the state case. In respect of sentence the appellant said the sentence induces a sense of shock in its severity when an option of a fine or non-custodial sentence could have been imposed as the appellant has now lost his job in a disgraceful manner at the age of 53 years after serving the force for over 30 years and is a veteran of the liberation war struggle. The appellant on the basis of the above grounds of appeal applied unsuccessfully for bail pending appeal. The court a quo was of the view that there are no prospects of success as the evidence proving the appellant’s guilty was properly assessed. No comment was made in respect of the appropriateness of the sentence. HH 67-14 B92/14 I am satisfied that the court a quo was alive to the factors to be considered in dealing with an application for bail pending appeal which are:- (a) prospects of appeal succeeding. (b) likelihood of absconding in light of the sentence imposed. (c) liberty of the individual (d) the likely delay before the appeal can be heard (e) any other relevant factors. See S v Dzawo 1998(1) ZLR 365, S v Manyange 2003(1) ZLR 21(H) In dealing with an appeal of this nature I am guided by what I believe is now one of often cited case of S v Malunjwa 2003(1) ZLR 275 (H): whether the trial magistrate misdirected himself when he refused bail. This court can only interfere with the decision of the court a quo if it is shown that an irregularity or misdirection has been committed or that the court a quo unreasonably or improperly exercised its discretion. See S v Ruturi HH-23/03. The judgment by the court a quo is well reasoned. The reasons for sentence are very lucid. I agree that no issues of law per se arise in deciding whether accused’s guilty has been proved beyond reasonable doubt. That issue is a factual one to be determined on the credibility of the witnesses. The charge is clear – that the appellant instructed Masara and the Investigation Officer not to detain the suspect in cells. Is this allegation proved beyond reasonable doubt on the facts to an extent that are not prospects of success on appeal? The state called the complainant Batsirai Mupindu, Investigation Officer Sergeant Benjamin Mabhawu (retired), Assistant Commissioner Mangoma and Chief Superintendent Alisha Nyamupaguma. The appellant gave evidence and called one CID detail Fiyero Masara and Inspector Sithembele Mhlanga. I do not intend to deal with evidence in detail but to look at the critical issue of whether credible evidence was led to prove the charge and determine prospects of success in respect of this conviction. The complainant throughout his evidence said he did not interact with the appellant. All he referred to were telephone conversations he witnessed coincidentally on all material times when the telephone was put on loud speaker first by an unnamed Constable who first recorded his statement and that it is the suspect who mentioned the appellant’s name. On the second occasion he said when suspect came to CID Serious Fraud Squad and released Masara told the complainant and the Investigation Officer that Masara had released the HH 67-14 B92/14 suspect on instructions of the appellant hence the complainant raised complaint with Officer in Charge Bamala. On the 3rd occasion the complainant said when Mabhawu the investigating officer was recording the warned and cautioned statement from the suspect and changed to now indicate that the matter was civil the complainant protested and the investigating officer Mabhawu took him to Masara’s office where Masara told complainant in presence of the suspect to agree to a payment plan by the suspect as per the instruction of an unnamed boss or bosses of Masara. Complainant said he refused and returned to CID Fraud Section offices the next day and that the investigation officer Mabhawu told him that the suspect’s telephone unreachable. Complainant said suspect later came at 1400hrs and that Officer In Charge Bamala asked why the suspect was not detained in cells but Investigation Officer Mabhawu said he had been instructed not to detain suspect without stating who had instructed him. Complainant was told to return next day for court. Complainant was unhappy hence he approached Chief Superintendent Nyamupaguma who then called the appellant(speaker on loud) and asked the appellant if had instructed CID officers not to detain the suspect. Complainant said the appellant did confirm such an instruction and that the suspect was his brother in law. Is this confirmed by Chief Superintendent Nyamupaguma? It is not confirmed in the manner complainant said. Chief Superintendent Nyamupaguma said when he called the appellant it is complainant who had said the appellant had instructed Investigation Officer not to detain suspect. He said the appellant’s response was that he had only talked to Investigation Officer that the suspect was not a problem as he would attend to CID officers if required. The context of that conversation was not adduced from Chief Superintendent Nyamupaguma. All Chief Superintendent Nyamupaguma said: is that what caused him to call the appellant was the report complainant made to him implicating appellant. He said he himself believed that the appellant gave such instruction because he gave assurance that he knew the suspect and that this suspect would turn up if required. His evidence does not materially corroborate the complainant on the material issue of whether the appellant admitted issuing such an instruction or that suspect was the appellant’s brother in law. The complainant said when the suspect failed to turn up Investigation Officer Mabhawu assured him he would but he did not. He said he suggested to flight an advertisement in the newspaper but Mabhawu refused saying his unnamed bosses would not accept it. This caused complainant to approach Assistant Commissioner Mangoma. HH 67-14 B92/14 Again according to the complainant Assistant Mangoma spoke to the appellant with speaker on loud (Mangoma could not confirm or deny that). Complainant said the appellant confirmed to Mangoma that suspect was his brother in law who was now embarrassing him and should be arrested. Did Assistant Commissioner Mangoma confirm this? He does not seem to confirm this. Assistant Commissioner Mangoma said it is complainant who came to him alleging that the appellant had caused the release of the suspect. This prompted him to call the appellant and the appellant told him suspect had visited the appellant’s offices at one point and that the appellant had referred him to CID offices. Assistant Mangoma said all he told the appellant was that suspect should be charged in both his representative and individual capacity. He also gave the same instruction to Nyamupaguma. Assistant Commissioner Mangoma under examination denied that the appellant confirmed suspect was his brother in law but that he was easy to locate. He did not confirm that the appellant admitted instructing anyone not to detain the suspect. All he said (hearsay) was that he was told (without revealing names) that the appellant’s instruction was “Mufana wangu iyeye musamuisa muchitokisi” (my acquaintance do not detain him). He was not probed further on this. The Investigation Officer Mabhawu’s evidence was that on the 1st day he was looking for suspect with complainant in Southerton he was called by his Senior Masara and told the suspect was at the offices. He returned to the office and Masara told him he had released suspect who would return next day (5/10/12). Investigation Officer Mabhawu then met the suspect on 8/10/12, interrogated him and he produced a company resolution saying he was a representative of the company but Investigation Officer would have none of that. He proceeded to charge him in his personal capacity and while recording a warned and cautioned statement his senior Masara came and said he should charge the company not the suspect and Masara had an invoice of the said company “Jolly Juice”. Investigation Officer Mabhawu said Masara further instructed him that after recording the warned and cautioned statement the Investigation Officer was to release suspect and later call him to attend court. The Investigation Officer said complainant previously had protested on the non detention of the suspect so he told his superior Masara to explain all this to complainant – the non detention and release of suspect. Investigation Officer Mabhawu said Masara told the complainant that; (i) (ii) that the suspect would be released pending finalisation of the matter. that it was Police’s prerogative to charge suspect in representative capacity and not the complainant’s prerogative to advise Police what to do HH 67-14 B92/14 (iii) that in presence of Investigation Officer Mabhawu, complainant, and the suspect Masara said all this after which he told all of them to leave his office and for Investigation Officer to comply with Masara’s instruction. The Investigation Officer said complainant was not happy about Masara’s conduct and he went to CID Headquarters to complain after which Senior Officers Chawatama and Assistant Commissioner Mangoma told Investigation Officer to charge the suspect in his individual capacity but he did not because he had released the suspect on Masara’s instructions and the suspect never returned. Investigation Officer Masara said when the appellant called him on his phone to say matter between complainant and suspect was civil and that they should deal with the suspect fairly without detaining him the, Investigation Officer had already released suspect on Masara’s instruction. The Investigation Officer does not in my view corroborate the complainant’s evidence or support the charge. Why is that so? (a) on 5/10/12 he said it is Masara who released the suspect (b) there is debate whether the appellant called Investigation Officer on 5/10/12 only as per the appellant or on 8/10/12 as per Investigation Officer but that is not relevant in my view. (c) what Investigation Officer confirms under examination is that release of the suspect was before the appellant’s call and at the instruction of Masara. (d) Investigation Officer made it clear that it is Masara who should explain the non detention and release of the suspect because the appellant only called Investigation Officer after the release. (e) Investigation Officer seems therefore to exonerate the appellant on the material aspect of the charge My conclusion is that there are indeed prospects of success on appeal in view of the nature of evidence I have allude to. While judicial officers are enjoined to give reasons for any decision made, See S v Gwisai and Ors HH 177-12, I do not intend to be detained by Adv Mpofu’s argument in that regard. The misdirection in this regard may not be of sufficient nature to viciate that decision made as the trial magistrate referred to reasons for judgment in respect of conviction. As I said the question to be answered is whether it was proved on the required standard that the appellant instructed Investigation Officer Masara not to detain the suspect? Did the witnesses corroborate each other in this issue. No. Why? HH 67-14 B92/14 (a) Complainant does not implicate the appellant. See p 26 where in the complainant contradicted himself saying that appellant never confirmed giving such instruction when asked by Assistant Mangoma and Chief Superintendent Nyamupaguma. The complainant was therefore not consistent on this issue.. (b) Complainant did not at any point hear or witness appellant giving such an instruction. The Investigation Officer does not seem to implicate appellant on the non detention of suspect and his release but implicates Masara. Assistant Commissioner Mangoma and Chief Superintendent Nyamupagamu were told of the appellant’s involvement by the complainant and in their conversation with the appellant, the appellant does not admit giving such an instruction. If the court a quo had closely gleaned at the evidence led it would have noted that a higher court analysing the same evidence may arrive at a different conclusion. The appellant stuck to his story. Masara in his evidence exonerates the appellant. The evidence of Inspector Mhlanga is not relevant and was not put in issue. My view is that there are prospects of success on appeal in respect of the conviction. It is for this reason that appellant is not likely to abscond but rather await the hearing of the appeal and have all issues ventilated. I am inclined to lean towards the liberty of the appellant. The effective sentence is 9 months and the appeal may be heard well after 9 months (or within 6 months considering remission). If the appeal succeeds then the appellant’s victory would be pyrrhic and academic. In the result it is ordered that, 1. The appeal be and is hereby upheld. 2. Bail pending appeal be and is hereby granted to the appellant. 3. Appellant is to deposit a sum of (US $500) with the Clerk of Court, Harare Magistrates Court. 4. Appellant shall stay at No. 4A Dorset East Road, Mount Pleasant, Harare until the case has been completed. Hogwe, Dzimirai & Partners, appellant’s legal practitioners National Prosecuting Authority, respondent’s legal practitioners