Court name
Supreme Court of Zimbabwe
Case number
SC 30 of 2004
Crim. Application 119 of 2004

S v Makamba (19/04) (SC 30 of 2004, Crim. Application 119 of 2004) [2004] ZWSC 30 (22 April 2004);

Law report citations
Media neutral citation
[2004] ZWSC 30










REPORTABLE
ZLR (14)









Judgment No. SC
30/04


Crim.
Application No. 119/04














JAMES
CHAFUNGAMOYO MAKAMBA v THE STATE











SUPREME
COURT OF ZIMBABWE


HARARE,
APRIL 8 & APRIL 23, 2004











G
Chikumbirike
, for the
appellant





M
Nemadire
, for the
respondent












In Chambers, in
terms of s 5 of the Supreme Court Rules.









ZIYAMBI
JA: This is an appeal against a judgment of the High Court
refusing bail to the appellant.






The
appeal is one in the narrow sense in that:





“…
in
the absence of an irregularity or misdirection, this Court has to be
persuaded that the manner in which the [learned JUDGE] exercised
his
discretion was so unreasonable as to vitiate the decision reached.
See
S
v Barber 1979
(4) SA
218 (D) at 220E-G;
S v
Chikumbirike
1986 (2)
ZLR 145 (S) at 146F.”








See
Aitken & Anor v
Attorney-General
1992
(1) ZLR 249 (SC). In other words the powers of this Court to
interfere with the judgment of the court
a
quo
are limited to the
finding of a misdirection occasioning a substantial miscarriage of
justice or a finding of an unreasonable exercise
of the court’s
discretion with the resultant effect set out above.





The
facts, briefly, are that the appellant was arrested on charges of
contravening section 5 (1) of the Exchange Control Act [Chapter
22:05] (“the Act”) as read with subsection 4 (1) (a) (i), 11 (1)
(a) and 11 (1) (b) of the Exchange Control Regulations 1996
S.I. 109
of 1996 (‘the Regulations’). He was subsequently placed on
remand in custody pending his trial on those charges.
Following a
referral back to the High Court of an earlier appeal to this Court
for the release of the appellant on bail, the matter
was heard and
determined on the merits by the High Court (CHITAKUNYE J)and bail was
refused on the grounds that the appellant was
likely to interfere
with the police investigations. It was ordered by CHITAKUNYE J that
the matter could be reviewed after three
weeks. The three weeks
having elapsed, an application was again brought to the High Court
and determined by KAMOCHA J.






The
learned Judge considered the application and refused bail on the
grounds that:





“There
is a real danger that if the applicant has the capacity to repatriate
such huge sums of hard currency there is great temptation
for him to
abscond and live outside this country on those monies for the rest of
his life. It therefore seems to me that on this
ground the
applicant is not a suitable candidate for bail.”









It
was submitted on behalf of the appellant that the finding of ‘huge
amounts’ was derived from bald allegations set out in an
affidavit
by the investigating officer who did not indicate how the allegations
would be proved at the trial,


(See
S v
Ncube infra)
and that accordingly, the learned Judge misdirected himself when he
accepted without more, the said allegations in arriving at the
conclusion that the appellant had huge sums of money outside the
country. It was also submitted that the learned Judge having
accepted
that the appellant would not abscond misdirected himself
when he denied bail on the ground that the likelihood of abscondment
was
great.









Mr
Nemadire for
the State
, on
the other hand, submitted that there was no misdirection in that
CHITAKUNYE J was not conclusive on the issue of abscondment and
had
not ruled out the likelihood of abscondment by the appellant. What
the learned Judge had said was that the level of the likelihood
of
abscondment was not clear to him and that had this been the only
ground on which bail was opposed he would probably have granted
bail.
This is the statement, which was referred to with approval by
KAMOCHA J. It certainly was not said by CHITAKUNYE J or adopted
by
KAMOCHA J, that there was no likelihood of the appellant absconding.








In
exercising his discretion in this matter the learned Judge was bound
by certain principles. They are:






“The
basic purpose from society's point of view of the procedure known as
‘bail’ is to strike a balance between two competing interests
-
the liberty of the accused, and the requirement of the State that he
stand trial to be judged and that the administration of justice
be
safeguarded from interference or frustration.”





(Aitken
& Anor supra).











The primary
considerations applicable in assessing evidence and submissions in a
bail application are -




  1. whether the
    applicant will stand trial in due course;



  2. whether the
    applicant will interfere with the investigations of the case against
    him or tamper with the prosecution witnesses;



  3. whether the
    applicant will commit offences when on bail;



  4. other
    considerations the court may deem good and sufficient.








The onus is upon an
accused person to show on a balance of probabilities why it is in the
interests of justice that he should be freed
on bail. (
Aitken
& Anor
supra.
See also
S v Chiadzwa
1988 (2) ZLR 19.







“It is the
fundamental requirement of the proper administration of justice that
an accused person stands trial and if there is any
cognizable
indication that he will not stand trial, if released from custody,
the court will serve the needs of justice by refusing
to grant bail,
even at the expense of the liberty of the accused and despite the
presumption of innocence.”










(See S
v Fourie
1973 (1) SA
100 at p 101.).






There
is no indication on the record that the above principles were not
followed. The learned Judge having considered the merits
of the
application arrived at his conclusion as set out above. Was there a
misdirection?






The
affidavit of the investigating officer attached to the application
shows that -








  1. in November 1998
    the appellant concluded an agreement of sale with a UK resident to
    purchase a Harare property, No 19 Willowmead
    Lane, Colne Valley at a
    price of 210 000 British pounds of which a deposit of 30 000
    pounds was paid and the balance was to be
    paid by installments. It
    is alleged that the appellant is the owner of the property.









  1. in the year 2003 –
    2004 the appellant entered into another sale agreement with Athol
    (Private) Limited South Africa for the purchase
    of property
    described as Unit 1 Solitaire, 73A Pretoria Avenue, Athol,
    Johannesburg, South Africa. The purchase price was ZAR 6
    800 000.
    A down payment of ZAR 680 000 was made and the balance was to be
    paid in installments.









  1. In October 2000,
    the appellant entered into an agreement to purchase Ravine House, 87
    George Hill, Wry Bridge, London, United Kingdom.
    The property was
    to be purchased by the appellant for 3 500 000 pounds.









  1. In December 2000
    the appellant entered into an agreement with Mendelous, Jacobs
    Attorneys of 243 Djon Road, Johannesburg, South
    Africa to purchase
    the entire shareholding of Fortworth Properties (Private) Limited in
    the amount of ZAR 6.1 million.








In addition, it was
alleged that the appellant has operated the following foreign
accounts without prior authorization from the Exchange
Control
Authority -







(a) F.N.B. South
Africa





(b) Bankers
Trust, New York


(c)
Ned Bank of South Africa



(d ) Bank of
Ireland Private Banking – (London account number given)




  1. General Pacific
    Bank Barclays Bank




(Channel Islands -
United Kingdom, New



Horizon (Private)
Limited offshore







(All account numbers
given).









It
was alleged that the total amounts involved on all counts amount to:
3 773 650 British pounds, USD 2 117 44 and ZAR 14 97 966,03
and it
was believed that in view of the appellant’s many contacts and
wealth abroad, the temptation to abscond was great.






The
learned judge took into consideration that should the appellant be
convicted of the offences with which he stands charged, he
would be
required to repatriate those amounts within three months failing
which the mandatory provisions of s 5 (7) (a) & (b)
of the Act
would take effect resulting in the imposition, on the appellant, of
an additional sentence of imprisonment over and above
any fine
required by s 5(4) of the Act.





Subsection
5 (7) provides as follows:






“(7) where a
person convicted of an offence referred to in paragraph (a) of
subsection (6) does not satisfy the court as to one or
other of the
requirements mentioned in subparagraph (i) and (ii) of paragraph (b)
of subsection (6) the court shall –








    1. in all cases have
      regard to that as a factor in aggravation of sentence; and











    1. if the convicted
      person is an individual and the value of the property concerned
      exceeds two hundred dollars, impose a sentence
      of imprisonment for
      such a period as the court deems fit in addition to any fine
      required by subsection (4).”








Subsection
(6) provides:



“Where a person –




  1. is convicted of an
    offence in terms of –










    1. paragraph (a) of
      subsection (1) which involves the exportation from, or acquisition
      outside, Zimbabwe of any gold, currency, security,
      goods or other
      property whatsoever in contravention of this Act; or











    1. ……








and







  1. does not satisfy
    the court that –










    1. foreign currency
      in an amount of not less than the value of such property which has
      been exported from, or acquired outside, Zimbabwe
      has been received
      in Zimbabwe;









the court may,
before passing sentence, adjourn the proceedings for such period not
exceeding three months as the court deems fit
in order to give the
convicted person an opportunity of so satisfying the court on the
resumption of the proceedings.”







The learned Judge
was entitled to take this factor into account. The amounts involved
in the purchases of the various properties
in the United Kingdom and
South Africa are considerable, far in excess of three million British
pounds. In order to be able to
commit to the purchase of these
properties, considerable sums had to be available to the appellant in
foreign currency in order to
make good his commitments in relation
thereto.






The bank account
numbers so far as the police have been able to ascertain were all
given. It is the details concerning the amounts
held in those
accounts and any transactions in relation thereto which were not made
available to the Court. It is known that documents
relating to the
account in South Africa were obtained by the police although details
of this account were not presented to the court.
However, even
without actual knowledge of the amounts reflected in the bank
accounts, the very purchase agreements and, in some
cases, the
deposits paid, raise a
prima
facie
case that at the
very least the appellant is possessed of substantial wealth in the
form of properties outside this country.







“In judging the
risk of abscondment, the court ascribes to the accused the ordinary
motives and fears that sway human nature. Accordingly,
it is guided
by the character of the charges and the penalties which in all
probability would be imposed if [the applicant is] convicted:
the
strength of the state case; the ability to flee to a foreign country
and the assurance given that it is intended to stand trial.
It is
apparent that the more serious the charge and the heavier the
sentence is expected to be, the greater will be the temptation
to
flee.”







(See
Aitken
& Anor supra
)







The learned Judge
did not comment on the strength of the State case. However the
allegations against the appellant are that he,
without exchange
control authority, operated a number of accounts in South Africa,
Britain and the United States of America and entered
into binding
agreements to purchase properties in South Africa and Britain in
contravention of s 11 (1) (a) and (b) of the Act which
provide as
follows:






“11. (1) Subject
to subsection (2), unless otherwise authorized by an exchange



control
authority, no Zimbabwean resident shall –







  1. make any payment
    outside Zimbabwe; or









  1. incur any
    obligation to make a payment outside Zimbabwe.”









In consequence of
these agreements, it is alleged that the appellant paid deposits in
foreign currency in contravention of s 11 (1)(a)
of the Act. It is
alleged that the appellant is the owner of a number of properties
abroad. He is also charged with dealing in
foreign currency in
contravention of section s 5 of the Act as read with s 4 (1)(a) (i)
of the Regulations.





Apart
from his comment that there is no proof of such properties, the
appellant has neither admitted nor denied the allegations
against
him. He has based his application on the perceived misdirection by
the Judge, the fact that he has been in detention for
a long period;
and the fact that he is unlikely to abscond having regard to his
substantial wealth and political and social standing
in Zimbabwe.
It was alleged that he is a well-known public figure who has strong
roots and ‘massive investments’ in Zimbabwe.
He is a self-made
businessman running billion-dollar businesses such as supermarkets,
farms, and security organizations and owns
several properties in
Harare and Bindura. The allegation that he has many contacts, and
owns several properties, outside Zimbabwe
has not been challenged.
As was said in a similar case:









“The
implications from this are that the appellant(s) could reward most
handsomely, in local and foreign currency, any party willing
to
undertake or assist in [his] illicit removal, and that he would be
able to live fairly comfortably outside Zimbabwe.”










(See
Aitken & Anor
supra.)






In
the instant case, the learned Judge arrived at the same conclusion
after taking into consideration the wealth alleged to be possessed
by
the appellant externally. I find no misdirection in this aspect of
the judgment.





It
was further submitted that the learned Judge having approved the
judgment of CHITAKUNYE J misdirected himself in proceeding to
refuse
bail on the grounds that the appellant was likely to abscond. A
reading of the judgment of CHITAKUNYE J shows that he did
not rule
out the likelihood of abscondment by the appellant. What he said
was:









“Another
aspect of interest is the fact of the appellant’s bank accounts
outside the country. Whilst two of those accounts were
denied
others were admitted. Each of those admitted accounts have some
money which is available to the applicant. He indicated
that there
could be about 4 - 5000 R and in his Nedbank Account and another 20
000 – 25 000 British pound sterling in his Bank
of Ireland Private
Banking Account in London.







Whatever the sources
of those funds are, the reality is that money is available for the
applicant’s use should he wish to go to
those countries.







In as far as means
to survive outside the country are concerned, the applicant is not
short. He would not be incapacitated by lack
of means.
Abscondment cannot therefore be entirely ruled out. It is the level
of its likelihood that is not clear to me. Had
this been the only
ground for opposing the grant of bail, I probably would have granted
bail. However there are other aspects referred
to below to be
considered together with the above ground.”












He
went on to dismiss the application on the grounds that the appellant
might interfere with investigations.





The
words quoted above do not, in my view indicate that the learned Judge
dismissed the likelihood of abscondment or that he would
definitely
have granted bail if that were the only ground. It was merely a
statement of what he might have done. In referring to
that aspect of
the judgment KAMOCHA J said:





“I
shall make reference with approval, to the judgment of the learned
Judge which summarized the State’s objections to the granting
of
bail. When dealing with the question of abscondment, the learned
Judge held a view that it (abscondment) could not be entirely
ruled
out. However, the level of its likelihood was not clear to his
lordship.”











I
do not agree with Mr
Chikumbirike
that these words suggest that the court
a
quo
adopted a
finding by CHITAKUNYE
J that bail could not be refused on grounds of the likelihood of
abscondment. Clearly the opposite appears
to be true from that
statement. Abscondment in his view
could
not be entirely ruled out
.
That was the finding adopted by the court
a
quo
. On the facts
placed before him the learned judge found that the level of the
likelihood of abscondment was high. He was entitled
to arrive at
his own conclusion on the facts placed before him and that is what he
did.





The
other ground of contention advanced by the appellant is that the
learned Judge posed the question:





“‘Is
there any other reason why I may refuse to admit the applicant to
bail which may seem to me good and sufficient?’





I
propose to deal with the question of the amounts involved and the
provisions of the Exchange Control Act. It admits of no doubt
that
the amounts are huge regard being had to the fact that the amounts
involved had currencies. To my mind 3 73 650 [British pounds],
$2
117 444 US, and ZAR 14 97 996,03 are huge sums of money.”







The
learned Judge took the view that if the appellant were to be
convicted, he would be required to repatriate the amounts and if
he
failed to do so he would be sentenced to a term of imprisonment by
operation of law. For this reason he felt that the temptation
to
the appellant to abscond was great in view of the wealth possessed by
him outside the country. He therefore considered the appellant
not
to be a good candidate for bail.





The
contention advanced on behalf of the appellant was that the learned
Judge, by basing his decision on “another reason”, had
ruled out
the likelihood of abscondment as a reason for refusal of bail. He
therefore contradicted and misdirected himself when
he went on to
refuse bail on the ground of the likelihood of abscondment.





It
is true that the learned Judge expressed himself in a somewhat
muddled manner. But this having been said, it was the fact of
the
appellant’s wealth abroad and the serious consequences of a
possible conviction, which swayed the learned Judge to think that
abscondment was a great likelihood in the appellant’s case. This
view of the learned Judge appears to be borne out on the papers.

Accordingly I do not regard this as a misdirection.






The final
contention advanced was that there was no foundation for the finding
that “huge sums of hard currency” were involved
in that in his
affidavit, (the excerpt is set out in the judgment of the court
a
quo
) Chief
Superintendent Mabunda, the investigating officer, did not explain
how these figures were arrived at but merely made bald
assertions, a
practice which was criticised in
S
v Ncube
2001 (2) ZLR
556(S).



In that case SANDURA
JA observed:










“I
should add that in determining a bail application the strength of the
case for the prosecution should be assessed. As MILLIN J
said in
Liebman
v Attorney-General
1950(1)
SA 607 (W) at 609:


‘The
court looks at the circumstances of the case to see whether the
person concerned expects, or ought to expect, conviction. If
it is
found on the circumstances disclosed to the court that the likelihood
of conviction is substantial, that the person ought reasonably
to
expect conviction, then the likelihood of his absconding is greatly
increased. Thus the court goes into the circumstances of
the case,
that is, the evidence at the disposal of the Crown. Where there has
been a preparatory examination that is the material
which is used.
Where no preparatory examination has yet been held the court has to
consider such material as is furnished to it by
the

accused himself
(the applicant) or by the Attorney-General or his representative.’






In
the present case, the strength of the state case was not assessed.
The application was dismissed on the basis of bald allegations
set
out in an affidavit by the investigating officer who did not indicate
how the allegations would be proved at the trial.”










Similarly the
strength of the State case was not assessed in the instant case. It
ought to have been. However, the allegations
made in the affidavit
of the investigating officer are fairly detailed and raise at least a
prima
facie
case against the appellant. The persons in foreign countries with
whom the appellant entered into binding agreements of sale in
respect
of the properties have been mentioned as well as, in some cases, the
deposits paid in respect of the purchase of the properties.
In
addition, Telecel, the company of which the appellant is chairman has
been prosecuted and convicted for its part in purchasing
foreign
currency from the appellant. Among the charges faced by the
appellant are allegations that he illegally sold foreign currency
to
Telecel. In such circumstances an applicant would be expected, in
attempting to discharge the onus upon him, to deny the allegations
or
place before the court such information as would tend to establish
his innocence. The appellant has done neither. He has not
denied
or explained what he terms as the ‘bald allegations’ made by the
investigating officer. The only indication as to the
appellant’s
response to the allegation that he operated several foreign currency
accounts outside the country appears in the judgment
of CHITAKUNYE J
where the appellant claimed to have some 25000 British pounds and
5000 South African Rand in two accounts outside
the country -
suggesting that oral submissions to that effect were made before him.






Before
KAMOCHA J, who reviewed the matter afresh, no attempt was made to
deny the charges or to place any information before the court
which
might tend to show the appellant’s innocence or that the
prosecution against him on those charges was unlikely to succeed
or,
further, that even if he were to be convicted of these offences the
penalties liable to be imposed are not so onerous as to present
a
temptation for him to abscond; or that the interests of justice would
not be prejudiced by his release on bail. What the appellant
has
told the court is that because of his position and standing as well
as his substantial wealth in this country it would be ‘suicidal’
for him to abscond. But this was countered by the State with the
unchallenged allegation that other prominent persons of substantial
wealth have fled this country when their arrest on similar charges
seemed imminent.










Accordingly there is
nothing on the papers filed of record which would persuade the
learned Judge that the appellant had discharged
the
onus
which is upon him to satisfy the court that he will stand his trial
if released on bail and I did not understand Mr
Chikumbirike
to argue otherwise.










In the
circumstances, I am unable to find that the learned Judge misdirected
himself in relying on the facts placed before him.





It
follows from the above that I have found no misdirection resulting in
a miscarriage of justice. Nor am I persuaded that the manner
in
which the learned Judge exercised his discretion was so unreasonable
as to vitiate the decision he arrived at.





Accordingly
there is no option open to me but to dismiss the appeal, and it is
hereby dismissed.













Chikumbirike &
Associates
,
appellant’s legal practitioners







Attorney
General’s Office
,
respondent’s legal practitioners