S v Makumbirofa and Another (40 of 2024) [2024] ZWCHHC 40 (23 April 2024)

1 HCC 40/24 REFS: HCCR 399/24 HCCR 397/24 KACC 14-15/24 WILLARD MAKUMBIROFA And RUEBEN MANYERE Versus THE STATE HIGH COURT OF ZIMBABWE MUZOFA J CHINHOYI 17 & 23 April 2024 Appeal against refusal of bail S. Muyemeki for the 1st appellant S. Ncube, for the 2nd appellant D. T. Dhamusi, for the respondent MUZOFA J: This is an appeal against refusal of bail by a Magistrate sitting at Karoi Magistrates court on the basis that the appellants are likely to abscond. The appellants appeared before the Magistrate jointly charged with fraud in contravention of s136 of the Criminal Law [Codification and Reform] Act (Chapter 9:23). The 1st appellant is a farmer in Karoi and the 2nd appellant is employed by Agritex. The background facts are that the 1st appellant misrepresented to the Agricultural and Rural Development Authority (ARDA) that he was capable to farm 20 hectares of sorghum on his farm and 60 hectares of sorghum on his son’s farm. He also misrepresented that he had 230 hectares of land and his son Tanaka Phil Makumbirofa had 230 hectares of land at Rufaro Farm. As a result of the misrepresentation ARDA contracted with the 1st appellant and provided farming inputs as follows, 50 X 50 kgs compound D fertilizer and 40 X 50 kgs ammonium nitrate for his farm. In respect of his son’s farm, he received 150 X 50 kgs compound D fertilizer and 35 X 50kgs ammonium nitrate. The 2nd appellant’s role as an employee of Agritex recommended the 1st appellant’s application on the pretext that he had assessed the 1st appellant’s capacity. At the time of such application and recommendation, both appellants knew that the appellant had no capacity or HCC 40/24 REFS: HCCR 399/24 HCCR 397/24 KACC 14-15/24 the intention to farm sorghum as claimed. As a result, ARDA acted to its prejudice. At the time the appellants appeared on remand, the total amount of prejudice had not been ascertained. When the appellants appeared before the court a quo on initial remand, an application for bail pending trial was made. The application was opposed. The State led evidence from the investigating officer who highlighted that there was a high likelihood of absconding and interference with witnesses. After considering the submissions, the court a quo dismissed the application in a one- page judgment on the basis that they are likely to abscond considering the evidence against them. Dissatisfied by the decision, the appellants appealed. They filed their notices of appeal separately. However, the grounds of appeal, which on both notices were inelegantly set out raise one issue that the court a quo misdirected itself in dismissing the application on unsubstantial claims. Before this court both appellants’ legal practitioners did not make meaningful oral submissions opting to abide by their written submissions. In their written submissions it was submitted that since bail is a constitutional right under s50 (1) (d) of the Constitution, the court a quo must have dismissed the application after finding compelling reasons to do so. The court was referred to the cases of Munsaka v The State HB55/16 and Chombo v The State HH196/18 as authority for that proposition. Further that the State in this case simply made bare allegations there was no evidence to substantiate its claim that there was overwhelming evidence against the appellants. The court was referred to the case of State v Shoshera & Ors HB 103/22 as authority. In this case, it was argued there was no evidence that the appellants attempted to abscond. In respect of the 1st appellant, it was submitted that he was provided with inputs for 20 hectares, he planted 15 hectares. The balance of inputs were recovered. In respect of his son, he denied applying on behalf of his son, arguing that his son, should be accountable for his conduct. On his farm he alleged that no assessment was made. He denied making any misrepresentation. HCC 40/24 REFS: HCCR 399/24 HCCR 397/24 KACC 14-15/24 On his part the 2nd appellant denied the offence and explained how he conducted his work. The State opposed the appeal. Although conceding that the court a quo failed to give reasons for its ruling, it urged this court to consider the facts placed before the court a quo and find that sufficient reasons exist to deny bail pending trial. The submission by the State is properly taken. An appeal is generally confined to the four corners of the record of proceedings. An appeal court is at large, after considering the facts as a whole to make a finding whether the court a quo’s decision finds support despite the misdirection. There is no doubt that the Court a quo did not give reasons for its decision. This Court must therefore consider whether on the facts the decision finds support or any other compelling reason exist to deny bail. The State submitted that before the court a quo there was evidence that the State case was overwhelming. The investigating officer gave evidence. The officer had recovered the application forms completed by the 1st appellant with recommendations made by the 2nd appellant. In their written submissions, both legal representatives for the appellants traversed the law on bail applications correctly. The starting point is the constitutional provision, which provides for release of a person with or without conditions provided they will attend trial, not interfere with witness or commit other offences before trial. The court a quo must have borne in mind the guiding principles set out in s117 (3) of the Criminal Procedure and Evidence Act [Chapter9:07]. In terms of that section, the court must have considered; i. ii. iii. iv. v. vi. the ties that appeal had with the place of trial. the existence and location of assets held by the appellant. ability to travel and or possession of travel documents. the nature and gravity of the offence and the likely penalty. the strength of the State case and the incentive to flee. the efficacy and enforceability of bail conditions. vii. any other relevant factors that the court can take into account. HCC 40/24 REFS: HCCR 399/24 HCCR 397/24 KACC 14-15/24 The factors must be considered holistically to come to a judicious decision. The guiding principle is to ensure that the interests of justice are served balancing them with the liberty of the accused person. It seems the investigating officer who appeared before the court a quo had inadequate information. He actually admitted that he was under pressure. In his evidence he stated that the appellants are economic saboteurs who scuttled the Government efforts to alleviate poverty. He said he had evidence that the contract between the 1st appellant and ARDA generated by the 2nd appellant show that 1st appellant planted 15 hectares of sorghum. In actual fact he planted 6.5 hectares. The evidence on the application in respect of his son was not canvassed. Nothing much was said about the application. What exercised my mind is whether this son was a minor or not. If he is an adult, on what basis did the officer impute his application to the 1 st appellant? All this was not explained. Due to lack of further evidence to support the averments alleged on the form 242 the Court shall not address it. I digress to briefly deal with the request for remand Form 242. The Form is a standard application with promptings to provide the most basic information on the application. The Form 242 exits to provide information on the accused’s personal details, the brief allegations and attitude towards bail. In the event that the State intends to lead evidence that evidence is meant to give further details on what is on the Form 242. In this case the investigating officer under section C simply stated bail opposed. Despite the fact that brief reasons are listed and the officer has to simply tick the applicable the investigating officer did not give the reasons for opposing bail. In this case nothing was indicated as the reason for opposing bail. Even on the annexure to the request for remand no reasons were given for opposing bail. All the relevant information must appear ex facie the Form 242. Section C provides for bail. It does not matter that the evidence would be led in Court, the accused has a right to know the reasons why bail is opposed so that he can properly prepare his application. Under cross examination the investigating officer conceded this omission and it was proposed that he therefore had no reasons for opposing bail. He simply hid behind a finger and said he was advised he would give evidence in Court. The State on its part did not address this point. I shall not pronounce myself on whether this is fatal misdirection since both parties did not HCC 40/24 REFS: HCCR 399/24 HCCR 397/24 KACC 14-15/24 properly argue the issue to its logical conclusion save to indicate that the information must be provided. The investigating officer claimed that only 6.5 hectares were under sorghum farming. The essence of the case is whether the 1st appellant misrepresented the intended hectrage for farming. This can be properly concluded after assessment of what the 1st appellant did on the ground. The 2nd appellant is supposed to be the expert who recommended the 1st appellant for the inputs. His response to the charge was that he assessed the farm and noted that the 1st appellant had compressed the 20 hectares of seed on a 15-hectare plot. He then provided technical advice. The investigating officer skirted the issue whether an assessment was made as to the exact hectrage under sorghum production. It is clear that no proper assessment was made that is the reason there was no value of the prejudice. In the absence of such information there cannot be a strong case. In addition to that, an accused cannot be denied bail simply because an investigating officer did not get time to verify their addresses The investigating officer was evasive about the 1st appellant’s place of residence. He was reluctant to confirm the 1st appellant’s address in Claudia. He was pressed that the appellant has a second house in Chikangwe and a business operating a Garage he denied all this. Despite his denial what was eminently clear is that he did not verify the addresses. In my view if the 1st appellant is a farmer with a minimum of 6,5 hectares of land under sorghum in Karoi surely he has a fixed place of abode. He has an investment that ties him to the jurisdiction There was no evidence that both appellants conducted themselves in a way to interfere with evidence. Finding otherwise maybe pure conjecture which judicial officers must desist from doing. In respect of the 2nd appellant it was conceded that he has a fixed place of abode. He did not resist arrest and was cooperative with the officers. The investigating officer confirmed they had recovered exhibits and recorded statements. That evidence cannot be interfered with. The onus was on the State to show that compelling reasons existed to deny bail pending trial. Taking into account all the evidence placed before the Court a quo in my view HCC 40/24 REFS: HCCR 399/24 HCCR 397/24 KACC 14-15/24 there were no compelling reasons to deny bail. The Court a quo failed to properly assess the appellants’ evidence and balance it with the evidence from the State to come to a proper conclusion. Accordingly the following order is made. 1. The appeal is allowed. 2. The decision of the Court a quo is set aside and substituted as follows. 3. The applicants be and are hereby granted bail pending trial under KACC 14-15/24 subject to the following conditions: i. That each applicant deposits US$300-00 with the Clerk of Court at Karoi Magistrates Court. ii. That each applicant does not interfere with witnesses until the matter is finalised. iii. That each applicant reports at ZRP Karoi Urban every Friday between the hours of 6am to 6pm. iv. That the 1st applicant resides at Kilrea Farm, Karoi until the matter is finalised. v. That the 2nd applicant resides at Number 701 Cloudia, Chiedza until the matter is finalised. Mapaya & Associates, the 1st appellant’s legal practitioners Saizi Law Chambers, the 2nd appellant’s legal practitioners National Prosecuting Authority, the State’s legal practitioners.