S v Mupaonde (43 of 2024) [2024] ZWCHHC 43 (28 May 2024)

1 HCC 43/24 REFS: HCCR 471/24 CHNACC 8/24 ROMEO TAPIWA MUPAONDE Versus THE STATE HIGH COURT OF ZIMBABWE MUZOFA J CHINHOYI,28 May 2024 Appeal against refusal of bail and bail revocation F. Murisi, for the appellant K. Teveraishe, for the respondent MUZOFA J: This is an appeal against two decisions of a Magistrate Court denying the appellant bail under CHN ACC8-10/24 and revoking his bail under CRB CHNACC7-9/23 respectively. The appellant was arrested and jointly charged with two other accomplices with fraud in contravention of s136 of the Criminal Law [Codification and Reform] Act and Money Laundering and Proceeds of Crime Act (Chapter 9:24) under CRB CHNACC 7-9/23. When the appellant and his co-accused persons appeared on remand, they were granted bail. One of the conditions of bail was that they do not interfere with witnesses. The State alleged that sometime in March 2024 when the ZACC investigators conducted some routine “checks” on the witnesses, they learnt that the appellant, one Matiza Marvin and Batsirayi Nyamayaro visited Kainos Mupiwa (hereinafter referred to as Kainos) a key witness and interfered with evidence. For their efforts, they were arrested and charged with defeating or obstructing the course of justice as defined in s139 (1) as read with s184 (1) (a) of the Criminal Code. When they appeared on remand their application for bail pending trial was dismissed. The basis of the offence was the main reason for the dismissal. On the same date the State applied for revocation of the appellant’s bail under CRB CHNACC 7-9/23 for the same reason that he had interfered with a witness. Since the two cases were decided in the main on the basis of interference with Kainos, a decision on one would invariably be applicable to the other. I shall address the appeal against revocation of bail first where Mr Murisi for the appellant raised a number of issues. HCC 43/24 REFS: HCCR 471/24 CHNACC 8/24 Bail revocation CHNACC7-9/23 In the Court a quo the State after notifying the Court of the application produced an affidavit by Kainos setting out how the alleged interference took place. The appellant’s legal practitioner objected to the production of the affidavit, despite the objection the Court accepted the affidavit reasoning that in bail applications there are no strict rules of evidence. The State then led evidence from the investigating officer. After hearing parties the Court a quo found that there was adequate evidence that the appellant had interfered with Kainos and withdrew his bail. The three grounds of appeal set out for the appellant, to my mind raise two issues for determination, 1. Whether the affidavit by Kainos was properly before the court a quo 2. Whether there was adequate evidence before the Court to revoke bail. I address the grounds of appeal in seriatim. Validity of Kainos’ affidavit A number of issues were raised about the affidavit by Kainos. It was submitted that the affidavit was improperly produced in terms of s278 of the Criminal Procedure and Evidence Act ‘the Act’, it was improperly commissioned and that after the objection the author was supposed to give oral evidence. The respondent chose to be non-committal about the deficiencies on the affidavit opting to insist that in bail proceedings there are no strict rules of evidence thus hearsay evidence can even be accepted. There was nothing directly responding to the issues raised for the appellant. As a matter of fact, it appears that the affidavit was produced with no mention at all as to under what section it was produced. It is the appellant’s legal practitioner who is recorded to have said ‘I understand the affidavit is produced under s278’. The Court did not make a ruling on the issue except for the broad statement already alluded to. Since the State intended to produce an affidavit, the document before the Court a quo must have complied with a basic affidavit. An affidavit is a written statement made on oath before a commissioner of oath or other authorised persons 1 . The authorised person must administer the oath in terms of the law and satisfy the following criteria, i. ii. iii. The deponent must take the oath in the presence of the authorised person. He/she must append his or her signature in the presence of the authorised person. The authorised person must append his/her signature and date in the presence of the deponent. 1 Ndoro & Anor v Conjugal Enterprises (Pvt) Ltd & Anor HH 814/22 HCC 43/24 REFS: HCCR 471/24 CHNACC 8/24 The affidavit placed before the court a quo bears the deponent’s signature, however there is no date when the deponent affixed his signature on the document, it also bears the commissioner of oaths’ signature, but no name. It only has a stamp from the officer in charge CID Gutu dated 2 April 2024. It remains unclear when Kainos appeared before the commissioner of oaths. Did he appear on the 2nd of April 2024 or some other date? Or did he appear at all? It is trite that, the commissioning process must take place contemporaneously. The contemporaneity must appear ex facie the affidavits. There is no assurance that the deponent signed in the presence of the commissioner of oaths. There must be no assumption or oral evidence to validate the process. The document that was before the court a quo shows that the commissioner signed the document on the 2nd of April 2024. The question that remains unanswered is, did the administration of the oath, the appendage of the signature by the deponent and the commissioner of oaths happen contemporaneously. In Firstel Cellular (Pvt) Ltd v Netone Cellular (Pvt) Ltd2 it was held that the stamp used to designate the commissioner of oaths should clearly identify the person before whom the affidavit is deposed and the office or capacity in which he or she acts as such. In this case the office is identified but there is no name. In a line of cases, this court has declined to recognize documents that do not satisfy the requirements. In Muzanenhamo v Gadaga3 the court rejected a document bearing a Magistrates’ court stamp. The person who signed as the commissioner of oaths was not identified nor even described as a commissioner of oaths. The court commented; “There is in fact no indication that the document was signed by a commissioner of oaths. In the circumstances the document is not an affidavit. What it is in fact is a written statement not made under oath.” The statement is apposite to this case. There was no affidavit before the Court a quo but a simple statement by Kainos. The Statement by Kainos was admissible before the Court in terms ofs117 A (4) (b). It is its probative value that becomes an issue. Even if these were bail proceedings, the affidavit must have complied with a normal affidavit. In bail proceedings, all evidence and documents is acceptable in terms of s177 A (4) (b). Section 278 of the Act deals with the production of affidavits prepared by professionals in their official capacity. For purpose of bail applications affidavits are produced in terms of s117 A (4) (b) which provides: ‘(4) In bail proceedings the court may— (a) … 2 SC 1/15 3 HH 65/02, See also P. G v Makarichi HH 502/23 HCC 43/24 REFS: HCCR 471/24 CHNACC 8/24 (b) subject to subsection (5), receive— (i) evidence on oath, including hearsay evidence; (ii) affidavits and written reports which may be tendered by the prosecutor, the accused or his or her legal representative; (iii) written statements made by the prosecutor, the accused or his or her legal representative; (iv) statements not on oath made by the accused; (c) require the prosecutor or the accused to adduce evidence; (d) require the prosecutor to place on record the reasons for not opposing bail. Since Kainos was not giving any expert opinion, the affidavit must have been produced in terms of s117A (4) (B) (ii). In this case there can be no irregularity that vitiate the proceedings since the State simply produced the affidavit. The defence made the wrong assumptions. This takes me to the next issue raised for the appellant. Sufficiency of evidence On sufficiency of evidence, Mr Murisi approached the issue technically and submitted that a bail revocation procedure is not synonymous with a bail application. The Court a quo misdirected itself in finding that these were bail proceedings therefore no strict rules of evidence are applicable. In such applications the Court is required to hold a mini trial. Having considered the submission and the fact that the appellant noted this application under s121 of the Act as read with Rule 91 of the High Court Rules, 2021 I requested parties to file supplementary heads of arguments on whether the appeal is properly before the Court. From the submissions both counsel noted that there no is no specific provision in the Act giving the appellant the right to appeal against a bail revocation. I was referred to cases where such appeals were dealt with. I should say, such cases would not be persuasive in the resolution of the matter since the issue on the propriety of the appeal was not raised. So, legal practitioners must desist from referring to cases where the issue before a court was not addressed at all. Having said so, l am persuaded by the submissions for the appellant that despite lack of clarity, the appellant cannot be left without recourse. Section 121 of the Act as read with r91 of the Rules must be read to include an appeal against revocation of bail. Even if a bail revocation is not an application for bail, it is incidental to a bail application since its genesis is such an application. It is just the other side of the same coin. It follows that the applicable procedure is that applicable in applications for bail. The Court was urged to adopt the reasoning in the South African case of Jin Mohau Ntsasa v The State4 where the court dealt with an appeal against bail revocation and held that the court dealing with an application for revocation must conduct a trial process with 4 [2023] ZAFSHC 218 ( CA61/23) HCC 43/24 REFS: HCCR 471/24 CHNACC 8/24 witnesses being examined. The State must satisfy the Court on a balance of probabilities that the accused failed to comply with his bail conditions. The provision dealing with bail revocation under the South African law 5 is set out as follows in the relevant part, Section 68 "Cancellation of bail (1) Any court before which a charge is pending in respect of which bail has been granted may, whether the accused has been released or not, upon information on oath that- ( a) the accused is about to evade justice or is about to abscond in order to evade justice; (b) the accused has interfered or threatened or attempted to interfere with witnesses; (c) the accused has defeated or attempted to defeat the ends of justice …….’ (underlining for my emphasis) In our jurisdiction bail revocation is made under s126 of the Act which provides, ‘126 Alteration of recognizances or committal of person on bail to prison (1) Any judge or magistrate who has granted bail to a person in terms of this Part may, if he is of the opinion that it is necessary or advisable in the interests of justice that the conditions of a recognizance entered into by that person should be altered or added to or that that person should be committed to prison, order that the said conditions be altered or added to or commit the person to prison, as the case may be: Provided that— (i) if the judge or magistrate who granted bail is not available, any other judge or magistrate, as the case may be, may act in terms of this subsection; (ii) a judge or magistrate shall not act in terms of this subsection unless facts which were not before the judge or magistrate who granted bail are brought to his attention. (Underlining for emphasis) (2)…’ The marked difference between the two provisions is that in the South African case there must be information on oath. Reference to an oath means a certain standard in the proceedings, either viva voce evidence under oath or affidavits. It then is acceptable that as a rule of thumb there must be a trial. It is difficult to infer the same from the wording of our law. Although it is desirable to have evidence it is not in all cases that witnesses must be called and oral evidence led. It seems our law is not fastidious on that issue, what is required 5 S 68 of the Criminal Procedure Act, 51 of 1977 HCC 43/24 REFS: HCCR 471/24 CHNACC 8/24 are facts and information unlike in the South African case that such must be under oath. The determinant factor is that the State must prove its complaint(s) on a balance of probabilities. It is the probity of the facts placed before the Court that matters. The onus of proof remained on the State to prove on a balance of probabilities that the appellant had interfered with Kainos. Once a party bears the onus of proof it can only satisfy such onus through evidence regard being had to the applicable rules of evidence under s117 A (4) (b). This Court can only interfere with the Court a quo’s decision where there is a misdirection Mupande & Ors v The State.6 Not all misdirections call for interference, for a Court to interfere there must be a misdirection that interferes with the general bail system. The bail system generally balances the proper administration of justice to secure the attendance of the accused for trial, that they do not interfere with witnesses among others issues and the accused’ liberty on the other. The ‘affidavit’ that was before the Court a quo was clearly not an affidavit. It was a misdirection for the Court a quo to insist on the affidavit and rely on the facts set therein. Generally the strength of an affidavit lies in that it is admitted evidence . In this case there were all indicators that the contents were disputed. If anything the statement was just enough to make way for the application but the allegations were supposed to be proved. The averments in the statement must have been tested under oath because the appellant had objected to the ‘affidavit’. In the face of an objection and a mere statement the State was supposed to call Kainos to give evidence so that his evidence maybe tested under oath. There was no affidavit from him. It cannot be gainsaid that the right to bail is now entrenched in our system where there are no compelling reasons to deny it. Initially the appellant was released on bail. Revocation of his bail must be based on evidence that he defaulted on his conditions. Unlike in bail proceedings where the reasons for opposing bail are based on what might, in bail revocation proceedings the reasons are based on what the appellant is alleged to have already done. There should therefore be evidence. In this case the State must have called Kainos to establish the complaint on a balance of probabilities. His evidence must have been tested under cross examination. The Court received oral evidence from the investigating officer who narrated what transpired. He said he had a call history which showed that the appellant communicated with Kainos. Surprisingly that call history was not produced. His evidence remained a bare averment. This was real evidence that could have corroborated Kainos’ statement to some extent but it was not made available to the Court. What was established before the Court a quo was a suspicion that the appellant interfered with Kainos. The appellant denied completely that he interfered with Kainos or that he travelled to Gutu where Kainos resides. Having said so, as an appeal Court I must also consider the interest of justice in view of the circumstances of the case. I was advised that the appellant has been indicted for trial on the 4th and 5th of June 2024 for trial in the High Court sitting in Harare. Although this is not 6 SC 58/22 HCC 43/24 REFS: HCCR 471/24 CHNACC 8/24 the primary application for bail, this Court is at large to take into account that there are changed circumstances now that the trial date has been set down. Before the Court a quo there was information of some interference, the appellant is about to be tried, it would be interest of justice that the Court seized with the trial deals with the issue of bail. It would be properly placed to address the issue holistically. Appeal against bail denial CHNACC8/24 The only ground of appeal is set out as follows, ‘The Court erred in denying bail in CHNACC 8-10 in the absence of any overwhelming evidence that the appellant had interfered with a witness as held by the Court a quo thereby cutting across the appellant’s presumption of innocence’ The ground of appeal was legally misconceptualised. It is elementary that in terms of s115 C of the Act in any bail application the party that bears the onus must discharge it on a balance of probabilities. To appeal that there was need for overwhelming evidence may imply a different standard of proof like proof beyond a reasonable doubt. In demanding evidence in bail applications both the Courts and the legal practitioners must be wary of blurring the line between trial proceedings and bail proceedings. We are increasingly getting submissions demanding for evidence which if not properly dealt with may turn the bail procedure into a trial procedure which is undesirable. In this case the investigating officer gave evidence in respect of the investigations. His evidence was that they visited Kainos who advised him of the interference. Interfering with evidence is a serious infraction that undermines the proper administration of justice. Where it is shown to have taken place a Magistrate or Judge can deny bail. I shall not delve much into the submissions made which were similar to the case where bail was revoked. The finding already made applies to both matters Disposition The Court a quo misdirected itself when it accepted the irregular affidavit. What remained before the Court a quo was an ordinary statement coupled with the investigator’s evidence. That evidence was not conclusive it raised a suspicion that the appellant might have interfered with Kainos. However since the appellant has been indicted for trial the interest of justice is that the trial Court deals with the issue on bail in this matter. Accordingly the appeal is dismissed. Murisi & Associates, the appellant’s legal practitioners. National Prosecuting Authority, the State’s legal practitioners. HCC 43/24 REFS: HCCR 471/24 CHNACC 8/24