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1. TRYMORE CHAPFIKA B 93/21

versus
THE STATE

2. CHARLES CHIRARA B 107/21

Versus
THE STATE

HIGH COURT OF ZIMBABWE

CHITAPI J
HARARE 2 February 2021 and 26 February 2021.

Bail Pending Trial

N Chigoro, for the 1st Applicant

L Mandiveyi, for 2nd applicant
B Murevanhema, for the respondent

CHITAPI J: The above two applications were consolidated by consent of counsel on

application by the prosecutor Mr Murevanhema. Mr Murevanhema submitted that the two
applicants were co-accused in the matter in regard to which they have applied for bail pending
trial. The prosecutor had summoned the Investigating Officer to give evidence on both
applications in regard to the bail applications. It was thereof convenient for the investigating
officer to give evidence in regard to both applications instead of giving evidence in each
application separately. The consolidation was for purposes of hearing and judgment.
The back ground to the applications was as follows:
In regard to first applicant, he appeared before the magistrate at Harare for initial remand
on 13 January, 2021 and was remanded in custody. The magistrate advised the applicant to apply
for bail before the High Court if minded to seek bail. The applicant was remanded in custody
together with four other accused persons, namely Gerald Rutizira, Kelvin Musakwa, Tendai
Zuze and Neverson Mwamuka, on allegations of Armed Robbery as defined in s 126 (1) (a) (b)
of the Criminal Law Codification and Reform Act, [Chapter 9:23]
The brief details of the facts alleged against the first applicant were that, him and his co-
accused and accomplices who included others said to be still at large waylaid a ZB Bank cash in
transit vehicle on 6 January, 2021 and robbed the vehicle crew of USD$2 775 000 by using fire-
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arms to induce fear and submission in the crew members. The applicant and his accomplices then
drove the cash in transit crew vehicle to some secluded place where they offloaded the cash
boxes which contained the money from the cash in transit vehicle into one of their gateway
vehicles which was being driven by co-accused Gerald Rutizira. The applicant and his
accomplices were alleged to have then driven the gate away vehicle with the cash boxes to some
farming area to the west of Nyabira where they broke open the cash boxes and shared the money.
The cash in transit vehicle and the vehicle were abandoned at the place where the cash boxes
were transferred from the cash in transit vehicle into the gateaway vehicle. The robbery was
committed at the 60 kilometre peg along the Harare, Chirundu highway around 11:30 am.
In relation to evidence linking the first applicant to the offence, it was alleged before the
magistrate as it was recorded on the remand form 242 that there was witnesses evidence to
identify him and his accomplice. It was also alleged that the first applicant led police to the
recovery of USD38 900 which was his share of the robbery proceeds. It was further alleged that
there was evidence of geographic physical communication amongst the applicant and his
accomplices whereby a run through of their cellphones showed that they were communicating
within the same locality the locality coincided with the areas of the robbery. It is important to
record that the first applicant did not challenge the grounds alleged at the remand. The magistrate
was satisfied that the allegations disclosed a reasonable suspicion that the applicant committed
the offence charged.
In regard to the second applicant, the same allegations made against the first applicant as
I have briefly outlined them herein were alleged against the second applicant. He was an alleged
accomplice with the first applicant and others in the commission of the robbery.
In relation to linking the second applicant to the commission of the offence, it was
alleged that the second applicant was implicated by his co-accused persons. Additionally he was
alleged to be owner of a Toyota passo motor vehicle which was used in the robbery as part of
gate away vehicles used by the second applicant and accomplices who included the first
accomplice. It was further alleged that the second applicant made indications of how the robbery
was committed and that the indications were video recorded. The Toyota passo motor vehicle
was also recovered. Evidence of communication between the second applicant and accomplices
was gathered by police.
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The second applicant like the first applicant did not challenge the allegations against him
before the magistrate. The allegations were therefore accepted by the magistrate who determined
that they established a reasonable suspicion that the second applicant committed the offence
charged. It is necessary to record that the decision to place an accused on remand is reached after
application by the prosecutor to have the applicant placed on remand. The magistrate will only
agree to place an accused person on remand if the state alleges facts from which a reasonable
suspicion is established that the accused committed the offence. The accused if he does not agree
with the allegations should challenge them before the magistrate. A failure to do so implies that
the accused agrees with the allegations. The challenge should not be made before the bail court
because the bail court is not an appeal or review court for decisions on applications for the
remand of the accused. The approach of the bail court must be to make a determination whether
or not the applicant is a good candidate for bail due regard being had to the uncontroverted
allegations accepted by the remand court.
The prosecutor led evidence from the investigating officer Detective Assistant Inspector
Chipazwo during the bail hearing. He testified in relation to the first applicant that the first
applicant was implicated in the offence by an accomplice Fanuel Musakwa. Following that
implication and the subsequent arrest of the first applicant in Mbare, police recovered USD6 000
on his person. He led police to his tuck shop where he had hidden USD23 000 in a hole dug in
the floor of the tuck shop. He also led police to a house in Mbare where his mother stayed. The
sum of USD9 000 was recovered from the mother where the first applicant had left it for safe
keeping. The first applicant alleged that the money had been given to him by his brother, one
Alfred Shumba who had gone to Murehwa. Alfred Shumba is on the run and police did not find
him when they followed on him to Murehwa. The investigating officer testified that the first
applicant’s sources of livelihood was through operating the tuck shop.
In relation to the second applicant, the investigating officer testified that the second
applicant was a soldier in the Zimbabwe National army based at 5.2 Infantry Battalion situated at
Battlefields. Police arrested him in Kwekwe with assistance of military police after the second
applicant had resisted arrest by the police and attempted to escape. The second applicant’s
workmate also a serving soldier called Artwell Chitera jumped over a durawall and escaped
arrest. Following the first applicant’s arrest, the second applicant told the police that he left
USD50 000 with his brother for safe keeping at his house in Ushewokunze. The investigating
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officer testified that the second applicant interfered with investigations in that he instructed his
wife and his sister to dig out a hole in which he had hidden the money on the floor of the house.
He allegedly also told the two to relocate to some other place. The two then abandoned the house
in Ushewokunze and rented another house in Bluff hill. Police arrested the second applicant’s
sister and wife and recovered from them USD67 500 which the second applicant had given them
for safe keeping. The investigating office testified that the second applicant had told them that
his share was USD150 000 and of that only USD67 500 had been recovered.
The investigating officer testified that police were opposed to the grant of bail because
their investigations had established that the robbery was committed by an organized gang of
armed persons some of whom were yet to be accounted for. About five alleged accomplices were
still on the prowl. Police had yet to recover outstanding money and in the case of the first
applicant police had only recovered USD38 000. The investigating officer also testified that the
state case was strong because apart from recovery of the money believed to be part of the
robbery proceeds, the first applicant made indications at the scene on how the robbery was
committed and the indications were video tapped. Additionally police recovered the first
applicant’s Toyota passo motor vehicle which was alleged to have been used during the
commission of the offence. Lastly the investigating officer testified that an accomplice,
Wellington Chirara was alleged to have been given USD50 000 for safekeeping. The first
applicant was likely to team up with Wellington and likely abscond.
In relation to first applicant the investigating officer under cross examination by the first
applicant’s counsel testified that the money recovered from the first applicant was part of the
robbery proceeds because it was in USD100 denominations like the stolen money. The
investigating officer testified that additionally, there was evidence of implication by co-accused
and that it was not coincidence that after implication the applicant was found to be in possession
of a large amount in the denominations as the money subject of robbery. The investigating
officer denied that the applicant had explained that the money was his.
Under cross examination by counsel for the second applicant, the investigating officer
maintained his evidence and the court noted that the cross examination was not eventful. Nothing
new came out of it. The investigating officer repeated his evidence that the second applicant
attempted to escape arrest but was apprehended with assistance of military police whilst the
accomplice Artwell Chitera escaped. He maintained that the second applicant ordered his wife
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and sister to relocate from their Ushewokunze house and they dug out the hidden robbery
proceeds therefrom and rented a house in Bluff hill. The second applicant according to the
investigating officer was the driver of the Toyota passo which the second applicant now alleged
to belong to his brother. The ownership itself was therefore not important but the use to which
the vehicle was put and the user thereof. The user was alleged to be the second applicant. The
investigating officer disagreed with the suggestion by the second applicant’s counsel that the
amount of USD67 500 recovered from the second applicant’s wife and sister belonged to one
Tozivepi. He testified that Tozivepi was arrested in possession of USD70 000 which was his
share of the robbery proceeds.
The first applicant in support of his application for admission to bail submitted through
his counsel that he did not harbor any intention to endanger the safety of any person or the public
generally. He claimed that he co-operated with the police in the investigations upon arrest. He
claimed further that the allegations against him were a fabrication. It was submitted that the first
applicant had an alibi in relation to his defence in that he was at his work place when the robbery
was committed. He claimed to be a businessman who operates a market stall at Magaba Mbare
where he sells steel products and owns two trucks which he hires out for money. He admitted
that police recovered USD28 900 following a search at his hose. He stated that he has as a man
of means and realized the money from his business operations. In regard to the money from
recovered his mother, he explained that it belonged to his half brother Alfred Shumba who police
still have to arrest. The second applicant also averred that he would not interfere with evidence
or state witnesses. He stated in the same vein that if he fell foul of bail conditions, police could
always arrest him. The rest of the written application dealt with bail jurisprudence and the
presumption of innocence including purposes of bail, the attitude of the police and of the
Prosecutor General.
In passing it is well to comment that little purpose is served in a bail applications before a
judge of the High court by the applicant engaging in seeking to school the judge on the law
relating to bail applications. Unfortunately counsel are known to do that. The law I think is very
clear. What must be emphasized upon in a bail application should be adducing facts which
conduce to a finding that the applicant is a good candidate for bail to be granted to him or her. It
is not of much use for the applicant to file an application for bail which concentrates on the
principles and law on bail unless an issues on what the law is or the application of the law are
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issues to be determined in the application. If there is no issue, then counsel are guided to
concentrate on profiling the applicant as a suitable candidate for bail in the circumstances of the
allegations made against him.
Section 117 (2) and 117 (3) of the Criminal Procedure and Evidence Act, [Chapter 9:23]
provides the guide on what bail applications should cover. Section 117 (2) lists the grounds
which if any of them is established to exist in any given case where bail is applied for, the
determination that it is not in the interests to grant bail may be made. Subs (3) of s 117 lists the
factors which the judge or magistrate dealing with a bail application is required to take into
account. Therefore a bail application must deal with the basis or reasons for opposing bail as
submitted by the state. If for example the reason for opposing bail is the risk of abscondment, the
application should relate to factors which the court must consider in determining whether or not
a likelihood that the applicant may abscond has been stablished. The first applicant’s application
did not deal adequately with the factors which the judge is required to take into account. For the
avoidance of doubt, s 117 (2) (ii) of the Criminal Procedure and Evidence Act, provides that
“the refusal to grant bail and the detention of an accused shall be in the interests of where one or
more of the following grounds are established-
(i) ……..
(ii) not stand his or her trial or appear to reserve sentence
(iii) ……..
(iv) …….
(b) ………

Subsection (3) (b) of s 117 then provides in para (b) that in determining whether or not it
has been established that the accused is likely not to stand trial, the court shall (own underlining)
take into account
“(i) the ties of the accused to the place of bail
(ii) the existence and location of any 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
therefor;
(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 factors which in the opinion of the court should be taken into account.”

It is therefore imperative that the above factors are directly addressed by the applicant in
the bail application. In casu the applicants were expected to deal with the matters listed above
and produce documentary proof where applicable of ownership of assets, savings and such other
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proof even by affidavit on the said factors. Again as an example the first applicant made a bold
allegation that he is of fixed abode and will reside at the “given address”. However the court is
required to consider the ties of the applicant to the place of trial. The allegations that the first
applicant is of fixed abode is not enough. Consideration must had to the nature of the ties of the
applicant to the fixed abode. Is it owned with title deeds or rented and so forth. Full details with
supporting documentation should be attached where available and if not available, an
explanation for the non- availability should be given. The listed factors to be considered by the
court may be split into subheadings and dealt with individually for good order. The first
applicant had the onus to show that it is in the interests of justice to grant him bail. The onus
cannot even on a balance of probabilities be discharged through bold allegations being made.
In regard to the second applicant, the application was far worse than that of the first
applicant in its failure to be guided by the provisions of s 117 (2) (a) (ii) as read with subs (3) (b)
of the Criminal Procedure and Evidence Act. The application did not address the factors that the
court is required by law to consider in determining whether or not the second applicant was
likely to abscond. The application was structured to address the law on bail generally and in
relation to abscondment. Reference was made to the cases of S v Jongwe SC 62/02 and S v
Ndlovu 2001 (2) ZLR 261 (H) to emphasize on how the risk of abscondment is assessed. The
cases do not make specific reference to s 117 (3) which lists the factors which the court is
directed to take into account. Some of the factors in these cases dovetail with the ones listed in s
117 (3). However the second applicant left it at that. He did not allege facts which relate to the
factors necessary to be considered. The task of the court is to determine whether or not it is in the
interest of justice to grant an applicant bail. The applicant must place the court into his
confidence and make supported factual allegations to establish the applicants’ suitability for bail.
This cannot be done by counsel taking the judge through a lecture on bail law and principles.
Although it may sound as a dressing down of counsel for ineptitude, I find myself unable to
describe the second applicant’s bail statement otherwise than as an example of how not to
prepare a bail statement. There is virtually nothing in the application to build or support the
profile of the second applicant as a suitable candidate for bail.
The second applicant came nowhere near discharging the onus reposed upon him by the
provisions of s 115 C (2) (ii) (A) of the Criminal Procedure and Evidence Act to show on a
balance of probabilities that it is in the interests of justice for the applicant to be granted bail. The
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failure to address the pertinent factors which the law requires that they be considered meant that
the bail application had no foundation to support it and consequently it could not succeed.
The state had in the form 242 raised other grounds to oppose bail namely that the
applicants are likely to interfere with the recovery of the outstanding money, subject of robbery.
It was alleged therefore that there was a risk of interfering with investigations which also
included the recovery of fire arms used in the commission of the robbery. It is not necessary to
interrogate the rest of the grounds in view of the finding I make that on the facts alleged and the
circumstances of the commission of the offence and the applicants’ bare denials of involvement
in the commission of the offence by advancing unsubstantiated alibis which are not clothed by
any facts or proof, and the failure to address the factors listed in s 117 (3) the applicants are a
flight risk. There is a likelihood that they will abscond especially so given the gravity of the
offence and the likely penalty upon conviction which ranges from life imprisonment to a definite
term of imprisonment given the circumstances of aggravation which are alleged to be present in
that firearms were used in the robbery.
The two applicants have failed to discharge the burden to show that it is the interests of
justice to grant them bail. Indeed apart from the risk of abscondment, the circumstances of the
commission of the offence going by the uncontroverted allegations of how the robbery was
committed and sharing of proceeds of which large amounts of money were recovered from the
applicants and such possession requiring explanation, the grant of bail to the applicants as
matters stand will undermine the objectives of bail and the criminal justice system. The grant of
bail will in such circumstances lead to the public losing confidence in the bail system.
It is therefore ordered that:
1. The bail applications in regard to Trymore Chapfika B 93/21 and Charles Chirara
B 107/21 are both dismissed.
2. Copies of this composite judgment must be filed in each of the two records B
93/21 and B 107/21.

Chigoro Law Chambers, 1st and 2nd Applicants’ legal Practitioners

National Prosecuting Authority, respondent’s legal practitioners