S v Chingombe (16 of 2021) [2021] ZWHHC 16 (21 January 2021)

1 HH 16/21 HACC (B) 38/20 REF ACC 292/20 CAINOS CHINGOMBE versus THE STATE HIGH COURT OF ZIMBABWE CHIKOWERO J HARARE, 24 December 2020 & 21 January 2021 Bail appeal L. Madhuku, for the appellant R Chikosha, with A. Bosha, for the respondent CHIKOWERO J: aggrieved by the magistrates Court’s refusal to admit him to bail pending trial, the appellant has sought that decision reversed. The appeal is made in terms of s 121 (1) of the terms of the Criminal Procedure and Evidence Act [Chapter 9:23] (“the CPEA”) as read with r 6 (1) of the High Court of Zimbabwe Bail Rules, 1971. THE BACKGROUND Appellant, the Human Capital Director and Acting Town Clerk of the City of Harare, was brought before the Magistrates Court at Harare a Designated Anti-Corruption Court facing a charge of Criminal abuse of duty as a public Officer as defined in s 174 (1) (a) of the Criminal Law (Codification and Reform) Act [Chapter 9:23] (“the code”) alternatively theft of trust property as defined in s 113 (2) (b) of the code. Appellant was employed as Capital Director by the City of Harare at the time of alleged commission of offence. The allegations are that on 30 October 2014 the appellant working in collusion with other executive employees of the City of Harare transferred US$130 000 from the traditional Beer Levy Account into his personal bank account. Thereafter, he used US$119 000 to purchase a Land Cruiser Prado which he registered in his name. he pocketed the difference amounting to US$11 000, which he later refunded to his employer through deductions from his salary. According to the Traditional Beer Act [Chapter 14:24] the traditional beer levy account is maintained by a local authority on behalf of the Minister of Local Government Public works and national Housing. It is an account kept separate from the local authority’s general revenue accounts. Withdrawals from that account are, by statutory command, only permissible on HH 16/21 HACC (B) 38/20 REF ACC 292/20 Ministerial authority and only then for the benefit of the residents of the local authority in the sense of funding the provision sanitation, water and health among other essential services. The alleged criminal conduct is that the appellant (in connivance with the other executive employees) abused his duty as a public officer by appropriating the US$130 000 without ministerial authority to the prejudice of the residents of the city of Harare. Alternatively, the simple allegation is that the appellant stole those trust funds. The Magistrates Court gave two reasons for refusing to admit the appellant to bail. First, the appellant was likely to abscond. Second, he was likely to interfere with investigations and witnesses. THE GROUNDS OF APPEAL Five (5) grounds were raised. I quote these verbatim: “1. 2. 3. 4. The learned Magistrate misdirected herself and improperly exercised her discretion in finding that there was likelihood that the appellant would abscond without applying her mind to, and considering, all the mandatory factors provided for in s 117 (3) (b) of the Criminal Procedure and Evidence Act [chapter 0:07] The learned Magistrate misdirected herself and improperly exercised her discretion in finding that there was a likelihood that the appellant would interfere with evidence without applying her mind to, and considering, all the mandatory factors provided for in s 117 (3) ( c) of the Criminal procedure and Evidence Act [chapter 9:07. the learned Magistrate misdirected herself in law in failing the find that the state had not discharged the onus of proving “compelling reasons” for denial of bail within the contemplation of s 50 (1) (d) of the Constitution of Zimbabwe, 2013, particularly in that: 3.1 There was neither compelling evidence nor any other basis from which it could be said that appellant was likely to abscond. There was neither compelling evidence nor any other basis from which it could be said that appellant would interfere with witnesses. 3.2 the learned Magistrate’s decision to deny bail on the basis of the two grounds advanced by the state is so outrageous in its defiance of logic or common sense that no reasonable magistrate, applying his/her mind to the facts and conscious of the right to liberty, could ever have reached that conclusion, particularly in that: 4.1 No reasonable magistrate could have failed to find that the bail conditions offered by the appellant overwhelmingly addressed and answered each of the grounds upon which bail was opposed and refused. No reasonable magistrate could have failed to find that the crux of the state case, namely appellant’s alleged use of his position to benefit himself, fell outside the main charge thereby making the state case so weak that it could not be a reasonable basis for denying bail. 4.2 5. The learned magistrate committed an irregularity by writing a ruling that is so brief and generalised as not to be a permissible basis for denying bail.” HH 16/21 HACC (B) 38/20 REF ACC 292/20 THE TEST FOR INTERFERING WITH THE LOWER COURTS DECISION ON BAIL The granting or refusal of bail involves the exercise of discretion by the Court before which the bail application is made. An appellate Court will therefore not interfere with the exercise of discretion by the lower Court unless the discretion was wrongly or improperly exercised. See Aitken and Another v AG 1992 (1) ZLR 249 (s); Chimwaiche v State SC 18/13. Interference with a lower Court’s exercise of its discretion is thus permissible only in limited circumstances. In Baffos and Another v Chimponda 1999 (1) ZLR 58 (5) GUBBAY CJ, with the concurrence of EBRAHIM JA and MUCHECHETERE JA said at 62F-63A: “The attack upon the determination of the learned Judge that there were no special circumstances for preferring the second purchaser above the first – one which clearly involved the exercise of a judicial discretion – may only be interfered with on limited grounds. See Farmers Cooperative Society (Reg).) v Beffy 1912 AD 343 at 350. These grounds are firmly entrenched. It is not enough that the appellate Court considers that if it had been in the position of the primary Court, it would have taken a different course. It must appear that some error has been made in exercising the discretion. If the primary Court acts upon a wrong principle, or irrelevant matters to guide or affect it, if it mistakes the facts, if it does not take into account some relevant considerations, then its determination should be reviewed and the appellate Court may exercise its own discretion in substitution, provided always has the materials for so doing. In short, this court is not imbued with the same broad discretion as was enjoyed by the trial Court” It is with these principles in mind that I proceed to determine the appeal. THE ISSUE ARISING FROM THE GROUNDS OF APPEAL Bail was refused on two grounds, but five grounds of appeal have been relied upon in attacking the decision of the Magistrates Court. The issues arising from the grounds of appeal are these. First, the Court below misdirected itself on the law in not considering all the factors laid down in s 1217 (3) ( c) of the CPEA in assessing, respectively, whether the likelihood of abscondment and interference with investigations or evidence were established. Second, the magistrates Court misdirected itself in finding in the absence of evidence that the state had established that if released on bail the appellant was likely to abscond and to interfere with the investigations or evidence. third, the magistrate misdirected herself in failing to find that the imposition of bail conditions was enough to allay any fears that the appellant with investigations and evidence. To me, ground number 5 is not really a ground of appeal. Rather, it is effectively an argument stemming from the first, second and third issues I have just pelt out. The argument is simply that the brevity of the judgment a quo evidence that the relevant bail principles were not considered. No analysis of the evidence and submissions was made. The result is that there are no proper reasons for the decision to refuse bail. HH 16/21 HACC (B) 38/20 REF ACC 292/20 ABSCONDMENT S 117 (3) (b) lays out six factors that the Court must consider in assessing whether there is a likelihood of abscondment. These are: (i). the ties of the accused to the place of trial; (ii) The existence and location of assets held by the accused.; (iii) The accused’s means of travel and his or her possession of or access to travel documents; (iv) The nature and gravity of the offence or the nature and gravity of the likely penalty therefore; (v) The strength of the case for the prosecution and the corresponding incentive of the accused to flee; (vi) The efficacy of the amount or nature of the bail and enforceability of any bail conditions; (vii) Any other factor which in the opinion of the Court should be taken into account. To begin with, the Court a quo misdirected itself on the law on bail when it said: “In considering bail application, Court has to weigh factors which are outlined in s 117 (2) of the Criminal Procedure and Evidence Act, Chapter 9:07 which among those factors include absconding, interfering with evidence, seriousness of the offence and likely sentence. Either one or more of them if established constitute compelling reasons and justifies accused persons continued detention in custody pending trial.” The seriousness of the offence and the likely penalty are not two factors. It is one factor. A serious or grave offence is more likely than not to attract a corresponding penalty. Seriousness of an offence is one of the factors a Court puts into the scales when weighting the risk of abscondment. The seriousness of an offence or the likely penalty are not standalone factors on which bail may be refused. The Court a quo mixed up the bail principles. The Court a quo misdirected itself in treating the seriousness as two different factors. It further misdirected itself in considering the maximum sentence for the main charge- 15 years imprisonment – as a factor with an existence separate from the seriousness of the offence. On the basis of this erroneous view of the law (which was not warranted) the magistrate concluded that appellant was likely to abscond. This appears in three short paragraphs: HH 16/21 HACC (B) 38/20 REF ACC 292/20 “On the likelihood of absconding trial if granted bail, state averred that accused person is facing a serious offence. A plethora of case law has ruled seriousness of the offence per se is not a bar to deny accused person bail. However, state further indicated that due to the gravity of the offense in question and that the likely sentence is imprisonment not exceeding 15 years. Court rules that the cited cases by state which include S v Ndlovu, 2001 (2) 261 are of paramount importance contrary to what accused person through his defence counsel even though they were decided before the enactment of the new 2013 Constitution for they are in tandem with the factors stipulated in s 117 (2) of the Code. Court rules that the seriousness of the offense or its gravity and the likely lengthy imprisonment would induce accused person to flee the jurisdiction of this Court. This is further coupled with the laxity that our Police Officers and Immigration Officers, as was held in William Sithole v State, 88/02 that people cross borders easily without requisite travel documents.” (underlining mine for emphasis) I agree with Mr Madhuku that the Magistrate found that the respondent had established that appellant was likely to abscond simply because he was facing a serious offense for which the law giver had prescribed a maximum penalty of 15 years imprisonment. This was denying the appellant bail on the ground that he was facing a serious offence. This is an invalid reason to deny anyone bail. See S v Hussey 1991 (2) ZLR 187 (SC). The Magistrate therefore grossly misdirected herself. It is true that after making this finding the Court below then went on to recite other reasons to bolster a finding that it had already made. The reasons were placed before the Court when the State Counsel was making submissions. But the learned Magistrate did not assess them against competing submissions made on behalf of the appellant. That is an injudicious exercise of discretion. A Court’s duty is to weigh argument from both sides to enable it to arrive at a proper determination of matter before it. The submissions which were uncritically accepted by the Court a quo, post its finding that the seriousness of the offense was likely to induce the appellant, were these. The Police and Immigration Officers were lax in enforcing border controls, this country’s borders are porous, appellant is a person of means, he has travelled to various countries, he stayed for a considerable period in Zambia, the extradition process with neighbouring countries, has proven difficult, appellant acted in connivance with others who are still out large, the investigating officer is finding it difficult to locate appellant’s accomplices who are still at large. The court a quo did not consider all the factors germane to an assessment of the likelihood or otherwise of abscondment. These include the strength of the case for the HH 16/21 HACC (B) 38/20 REF ACC 292/20 prosecution, effectiveness or otherwise of bail conditions to allay any fears of flight, the ties of the appellant to the place of trial and the existence and location of assets held by the appellant. The magistrate thus did not properly exercise her discretion. See Gomba v The State HH 557/20. The error means I am at large to exercise my discretion on the issue of abscondment, using the same materials as before the court a quo. In doing this, I may or may not reach the same conclusion as was reached a quo. The record discloses the following. Appellant’s roots are in Zimbabwe. Although he studied in Zambia, he has worked in this country. He is the owner of an immovable property called 10 Chamberlain Road, Greendale in Harare. This is where he resides. There is no evidence that he has connections outside Zimbabwe. There is no evidence that he owns assets outside our borders. There is no evidence of any money he holds with any local bank. There is no evidence that he holds any offshore bank accounts. There is uncontroverted evidence that some prominent persons (not named) contacted the investigating officer pleading for his release from police custody. My view is that both the main and alternative charges are serious. Appellant benefited in the sum of US$130 000. These appear to be public funds. That he received this amount is not in dispute. That this was without Ministerial authority is not denied. The audit report shows that appellant orchestrated the process by recommending to the caretaker Council in 2014, that the funds be transferred into his personal account. It appears the appellant and his accomplices used the councilors as the machinery to access funds which they had no legal entitlement to. I am not the trial court but it seems to me, prima facie, that it cannot be a strong defence to both the main and alternative charges for appellant to say his conditions of service entitled him to the vehicle which was bought using money from the traditional beer levy account. The bottom line seems to be that funds from that account ought not to have been used for the purpose which appellant and his accomplices, having got their way around council, utilized it. The prejudice to the residents of Harare appears to be there. It seems to me that one cannot say, for purposes of this appeal, that the respondent’s case is weak in respect of the main charge. If the respondent proves at the trial, which to me seems quite probable that the funds in question were trust funds the alternative charge would have been proved. My view is that the prosecution has a strong case against the appellant, the probability of conviction on either charge is high and if that happens, then the likelihood of appellant being incarcerated for a HH 16/21 HACC (B) 38/20 REF ACC 292/20 lengthy period is also high. The maximum penalty in respect of the main charge is fifteen years imprisonment while that for the alternative charge is twenty five years imprisonment. It is the fear of lengthy incarceration coming on the high chances of conviction that I find likely to induce the appellant to flee, with or without a passport. His known immovable property can actually be disposed of to facilitate the abscondment. It is true that the investigating officer said he did not know of anything that the appellant has done suggestive of absondment. But the investigating officer is not the court. The court retains its discretion. Although appellant testified a quo he did not produce his title deeds. He did not offer the title deed as part of the bail conditions. I raised this aspect with Mr Madhuku at the hearing of the appeal. He said if the appellate court were minded to allow ordering the surrendering of title deed could be made. I heard this matter on appeal. The title deed is not part of the record. The learned magistrate could not have decided the matter on documentary evidence not placed before her. Neither can I consider to surrender the title deed. The document is not before me. My view on the issue of abscondment may have been different if the title deed were placed before the learned magistrate and a suitable condition suggested to her. In short, I can only exercise my discretion based on the materials that are before me. That is my understanding of the dicta that I have quoted from the decision in Barnos and Another v Chimphonda (supra) A trial is only possible where the course of justice is allowed to run its course. When prominent people pleaded with the investigating officer to release the appellant the intention was to scupper the prosecution of the appellant. The offence was allegedly committed in 2014. The Tribunal, in March 2016, recommended the prosecution of the appellant. Instead of that happening the appellant resurfaced at Town House in 2020, this time not only as Director Human Capital but also as Acting Town Clerk. When he was eventually arrested prominent people pleaded for his release. In my view all this was meant to ensure that appellant does not stand trial. All devices not to stand trial have so far, failed. What could be the next move? In my view it was too risky to release the appellant pending the trial. The likelihood of him absconding remains high. INTERFERENCE WITH WITNESSES AND THE EVIDENCE I agree that the magistrate misdirected herself in perfunctorily dealing with this aspect. She said the police needed to be accorded time to finalise statement recording, and that the HH 16/21 HACC (B) 38/20 REF ACC 292/20 outstanding witnesses were workmates of the appellant. That was all that she said. Despite this misdirection, I agree with her conclusion that appellant was likely to interfere with the evidence. The police recorded statements from two City of Harare employees. At least three more had statements yet to be recorded from them. These are junior workmates of the appellant. The Chamber Secretary was dragging his feet. He considered himself too junior to testify against the appellant. If he did not cooperate the investigating officer said the police had no option but to have him subpoenaed. The other witnesses are a councilor and an employee from the accounts department. These persons were named during the bail hearing. Appellant knows them. My view is that appellant is a man of influence at city of Harare, He is a Director Human Capital. In that capacity it appears he deals with City of Harare employees in issues relating to employment. He is not only that, he is now the Acting Town Clerk. I am persuaded he wields some influence. The witnesses from whom statements were yet to be recorded would, in my view feel intimidated to cooperate with the appellant investigations while appellant roamed free at Town House. During the appeal hearing, Mr Madhuku shot down, in anticipation, any suggestion from the respondent that appellant should not appear at Town House before finalization of investigations. The investigating officer’s evidence that a large portion of the documentary evidence that he had obtained consisted of illegible photocopies was not controverted. He had difficulty even in securing those photocopies. He was pushing to obtain the originals because it is those which would be admissible at trial. He was yet to secure the relevant bank statements. Considering that despite the Tribunal recommendations in March 2016 this is a matter which had been swept under the carpet the investigating officer’s difficulties are understandable. My view is that it would be easy to destroy or conceal evidence if the appellant were released while the investigations are in progress. The investigating office is Superitendent Moreblesing Gandiyaro. He is a high ranking officer in the Zimbabwe Republic Police. A man of twenty years experience in crime investigation, he is currently stationed at the Police General Headquarters. That is the seat of police operations in this country. Despite his seniority and where he operates from some prominent persons had the courage to contact him to procure the release of the appellant. Those were attempts to obstruct or defeat the course of justice. That in itself is a crime. It also shows that appellant is well HH 16/21 HACC (B) 38/20 REF ACC 292/20 connected to prominent people in this country. Interference with investigations and witnesses remains precisely that whether done by the appellant directly or indirectly, through other persons. The objective would be the same. The beneficiary would remain the appellant. Those attempts all smack of corruption. It matters not that the investigating officer was unable to tell whether those efforts were engineered by the appellant. This was interference with the process of investigation itself, targeted at the functionary spearheading that process – the investigating officer. The objective was to kill the process at its inception. It is necessary that I extensively quote the words of GIKONYO J in Republic of Kenya v Mayende and 3 others Criminal case 55 of 2009. This is what his Lordship said about interference at pp 5 – 6 of the cyclostyled judgment: “[22] All that the law requires is that there is interference in the sense of influencing or compromising or inducing or terrifying or doing such other acts to a witness with the aim that the witness will not give evidence, or will give particular evidence or in a particular manner. Interference with witnesses covers a wide range; it can be immediately on commission of the offence, during investigations at inception of the criminal charge in court or during the trial; and can be committed by any person including the accused, witnesses or other persons. The descriptions of the kind of acts which amount to interference with witnesses are varied and numerous but it is the court which decides in the circumstances of each case if the interference is aimed at impeding or perverting the course of justice, and if it so found, it is a justifiable reason to limit the right to liberty of the accused. [24] In all civilized systems of court, interference with witnesses is a highly potent ground on which the accused may be refused bail. It is a reasonable and justifiable limitation of right to liberty in an open and democratic society as a way of safeguarding administration of justice undoubtedly a cardinal tenet in criminal justice, social justice and the rule of law in general… [25] Administration of public justice particularly in criminal sphere includes the process of adjudication as well as investigation of criminal offences. On this the following words of Mac Dermott, Lord Chief Justice in the case of Reg v Bailey [1956] N115 at p 26 are apt: ‘The administration of public justice in the criminal sphere cannot well be confined to the process of adjudication. In point of principle we think it comprehends functions which nowadays belong to, in practice almost exclusively, to the police, such as the investigation of offences…’ It also recognizes the compelling state interest principle where the state’s constitutional duty to bring offenders to book should be free from wanton interference of its witnesses, and is to be weighed against the right to liberty of the person charged if that person is being accused of interfering with witnesses in his own cause. It is therefore a matter of great public interest to allow the course, of justice to run without being hindered by any person, a group of persons, a state organ or organs whatsoever, otherwise the pillar of justice that is the enabler of constitutional rights and obligations in society will collapse, and with it will tumble the entire societal fabric, social justice and the rule of law. That is the amount of preponderant weight that administration of justice bears and outweighs the right of the fourth accused to liberty particularly where he has acted in a manner tending to impede the course of justice….” (underlining mine for emphasis) HH 16/21 HACC (B) 38/20 REF ACC 292/20 In advancing argument on the likelihood of interference with investigations Mr Kariwo submitted before the learned magistrate, at pp 150 -151 of the record: “We will now your worship deal with the second ground on which we are opposed to bail. This second ground your worship is to be found in s 117 (2) (a), subpara (3) and we are saying the accused will attempt to influence or intimidate witnesses or to conceal or destroy evidence. Your worship the court already heard the investigating office tell the court that since the arrest of the accused person, he has been contacted by various persons who are seeking the release of the accused person. Your worship this already points to interference with investigations. And if the accused person himself were released, we submit that the intensity of such interference and intimidation of witnesses would actually increase…” I associate myself with the sentiments of GIKONYO J in Republic of Kenya v Mayande and Others (supra) that it is in the interests of justice that the criminal justice system, which includes the investigation of criminal offences, should be allowed to run its course unhindered. Mr Kamuriwo hit the nail on the head when he argued a quo that the release of the appellant would compromise the investigation. In my judgment respondent established that if appellant were released he would attempt to influence or intimidate witnesses or to conceal or destroy the evidence, including otherwise interfering with the investigation process itself. His release would undermine or jeopardise the objectives or proper functioning of the criminal justice system including bringing the bail system into disrepute. No condition would reasonably deal with the interference because the likelihood was not confined to direct and visible efforts of the appellant. In the result, although I have found that the learned magistrate did not judiciously exercise her discretion in determining the issue of interference I have found no basis for interfering with her finding and conclusion in that regard. THE OTHER GROUNDS OF APPEAL I have addressed the issues raised in the course of disposing of the grounds of appeal on abscondment and interference. The need for a separate treatment of the other grounds of appeal therefore falls away. DISPOSITION In the result, the appeal against the refusal of bail be and is dismissed. HH 16/21 HACC (B) 38/20 REF ACC 292/20 Lovemore Madhuku lawyers, appellant’s legal practitioners National Prosecuting Authority, respondent’s legal practitioners