Court name
Supreme Court of Zimbabwe
Case number
SC 35 of 2006
Criminal Appeal 92 of 2006

S v Kuruneri (92/06) (SC 35 of 2006, Criminal Appeal 92 of 2006) [2006] ZWSC 35 (30 July 2006);

Law report citations
Media neutral citation
[2006] ZWSC 35



8


SC
35/06



















Judgment No.
SC 35/06


Criminal
Appeal No. 92/06









CHRISTOPHER
TICHAONA KURUNERI v






THE

STATE








SUPREME
COURT OF ZIMBABWE


HARARE,
MAY 26 & 31 AND JULY 31, 2006








J
Samkange
,
for the appellant





F
Chimbaru
,
for the respondent












Before SANDURA
JA, In Chambers, in terms of s 121(2)(a) of the Criminal Procedure
and Evidence Act [
Chapter
9:07
].







This is an appeal against the
refusal by the High Court to vary the conditions on which the
appellant was granted bail by CHIDYAUSIKU
CJ on 27 July 2005.






The relevant
facts are as follows:






The appellant
is charged with four counts of contravening the Exchange Control Act
[
Chapter
22:05
]
and one count of contravening the Citizenship of Zimbabwe Act
[
Chapter
4:01
].
His trial commenced sometime ago and has not yet been completed.





On
27 July 2005 the appellant was granted bail on a number of
conditions. The second condition was as follows:





“That
he resides at house number 730, Glen Hellen Way, Glen Lorne, Harare
where he will be under 24 hours police guard until the finalisation
of this case, and that he can only leave the house in order to attend
court.”






Subsequently
on 3 March 2006, after the appellant’s trial had been adjourned
sine
die

because of the unavailability of his counsel, the appellant, through
his counsel, applied for the variation of his bail conditions
by the
deletion of the second condition and the substitution of the
following:






“That
applicant resides at his farm namely Ascotvale Farm, Mazoe, Bindura.”







The application was opposed by
the respondent and was dismissed by the learned trial judge.





Thereafter,
on 3 April 2006 the appellant was granted leave by the learned trial
judge to appeal to this Court.





In his
notice of appeal the appellant relies upon the following grounds:






“1. The
court
a
quo

erred in failing to take cognisance of the fact that the respondent
considered it reasonable to allow the appellant to reside at
his farm
subject to the condition that he report to the police daily.







2. The
court
a
quo

erred in finding that the appellant’s submissions and proposals had
been considered by this Honourable Court.







3. The
court
a
quo

erred in failing to find that the respondent’s fears and concerns
were unreasonable having regard in particular to the appellant’s
conduct since being admitted to bail.”






Before
dealing with the grounds of appeal, I would like to indicate the
basis upon which this Court would interfere with the decision
of the
learned judge in the court
a
quo
.
The basis was set out by BECK JA in
S
v Chikumbirike

1986 (2) ZLR 145 (SC) at 146 F–G as follows:






“The
next matter to be decided is whether this court in hearing the appeal
should treat it as an appeal in the wide sense, that is
to say, that
it is to be treated as if it were a hearing
de
novo
.
Once again that matter has been decided by the case of
The
State v Mohamed

1977 (2) SA 531 (AD) at 542 B-C where TROLLIP JA said that in an
appeal of this nature the Court of Appeal will only interfere if
the
court
a
quo

committed an irregularity or misdirection or exercised its discretion
so unreasonably or improperly as to vitiate its decision.”





With that
principle in mind, I now examine the three grounds of appeal relied
upon by the appellant.





THE
FIRST GROUND OF APPEAL




There are two
allegations in this ground of appeal. The first is that when the
application was heard in the court
a
quo

the respondent indicated that it was reasonable to allow the
appellant to reside at his farm subject to the condition that he
reported
to the police at Mazoe Police Station once daily. In other
words, the allegation is that the State, through its counsel,
conceded
that the twenty-four hour police guard was no longer
necessary. And the second allegation is that the learned judge in
the court
a
quo

erred when she ignored the State’s concession and dismissed the
appellant’s application.







In my view, a
perusal of the record of the proceedings in the court
a
quo

does not support the allegation that the State made the alleged
concession. On the contrary, State counsel, Mr
Jagada,
indicated in his written and oral submissions that the application
was opposed and that as the appellant faced serious charges it
was
feared that if he resided on the farm the police would find it very
difficult to monitor his movements. Consequently, it was
feared
that the appellant would have a greater opportunity of absconding
than he would have otherwise.







A transcript
of the learned judge’s notes shows that Mr
Jagada
made the following oral submissions:





“(The)
Chief Justice’s concern was (that a) 24 hour guard would be
difficult for the police to fulfil. This caused the Chief Justice
to refuse that condition. That is still relevant.







… If
(the) court is inclined to vary (the bail conditions) how does (the)
court propose to have control of the movement of or by (the)
accused?
(The) farm is too huge a place
.







If it was not he remains where he
is and reports say everyday and would then have (the) opportunity to
visit (the) farm whenever he
wishes.







I am not
consenting to variation. (It is) not fair to ask (the) State to ask
the Police to guard him at (the) farm – that will
be cumbersome

…” (emphasis added)






Mr Samkange,
who appeared for the appellant, relied upon the third paragraph and
submitted that Mr
Jagada
made the alleged concession on behalf of the State.






I do not
think that the third paragraph as set out above indicates that the
alleged concession was made. In my view, the whole
paragraph is
meaningless. In any event, the fourth paragraph makes it quite
clear that Mr
Jagada
did not consent to a variation of the bail conditions.






In addition,
it is clear from the oral submissions made by Mr
Jagada
in the court
a
quo
that
the State considered the 24 hour police guard to be necessary, and
that as it would be very difficult to enforce it at the farm,
the
appellant should continue residing at the house in Glen Lorne.






In the
circumstances, there is no evidence which supports the allegation
that the State conceded that the appellant could reside
at the farm
subject to the condition that he reported to the police at Mazoe
Police Station once daily. The appellant has, therefore,
failed to
establish that the alleged concession was made.






Consequently,
the second allegation in the first ground of appeal falls away. The
learned judge in the court
a
quo

could not take into account a concession which had not been made by
the State.





THE
SECOND GROUND OF APPEAL






The
allegation in this ground of appeal is that the court
a
quo

erred in finding that the appellant’s submissions and proposals had
been considered by this Court.






The relevant
paragraph in the judgment prepared by the learned judge reads as
follows:





“The
applicant’s submissions and proposals were apparently considered by
the Supreme Court. The applicant’s counsel submitted
that
although the proposal for the applicant to reside at the farm was
made before the Honourable Chief Justice, he decided to order
the
applicant to stay at the Glen Lorne house. In the present matter
the respondent entertains the same concerns and fears regarding
the
proposed variation. As the respondent’s counsel submitted, a farm
covers a vast expanse of land, and it would be difficult,
if not
impossible, for the police to effectively control and monitor the
applicant’s movement thereat. The condition now sought
to be
varied effectively addresses the State’s justifiable concerns
whilst the proposed amendment does not.”





I do not
think that the learned judge erred at all as alleged. What she
meant was that when the appellant was granted bail by
CHIDYAUSIKU CJ,
the proposal or submission that the appellant reside at the farm was
made, considered and rejected, and that the
same proposal or
submission had again been made before her by the appellant’s
counsel, with the same reason being given, i.e. that
half of the
appellant’s cattle had been stolen from the farm because of the
appellant’s absence from the farm.





THE
THIRD GROUND OF APPEAL






The
allegation in this ground of appeal is that the learned judge erred
in failing to find that the State’s fears and concerns
were
unreasonable, bearing in mind the appellant’s conduct since being
granted bail.






In this
regard, it was submitted that the 24 hour police guard was no longer
necessary because there had been many occasions when
the appellant
could have absconded from the house in Glen Lorne but had not done
so. It was, therefore, submitted that the learned
judge misdirected
herself when she found that the State’s fears and concerns were
justified. Mrs
Chimbaru,
who appeared for the State, agreed with that submission.






It is clear
from the submissions made by Mr
Jagada
in the court
a
quo

that the State feared that unless the appellant was placed under an
effective 24 hour police guard he was likely to abscond, bearing
in
mind the fact that he was facing very serious charges. Mr
Jagada
also submitted that a 24 hour police guard would be difficult, if not
impossible, to enforce at the farm. The learned judge agreed
with
both submissions.






In my view,
the fact that the appellant had not absconded up to the time of
making the application in the court
a
quo

did not necessarily mean that if he was permitted to reside at the
farm he would not abscond. In judging the risk of absconding,
the
Court ascribes to the accused the ordinary motives and fears which
sway human beings. The more serious the charge and the heavier
the
sentence expected upon conviction, the greater will be the temptation
to abscond. See
Aitken
& Anor v Attorney-General

1992 (1) ZLR 249 (S) at 254 D-F.






In the
present case, the appellant is charged with serious violations of the
Exchange Control Act [
Chapter
22:05
]
and if he is convicted the appropriate sentence is likely to be a
heavy one. The learned judge did not, therefore, misdirect herself
when she found that the State’s fears and concerns were justified.
After all, she had heard the State’s evidence against the
appellant and was in a position to assess the strength of the State’s
case.






Accordingly,
the concession made by Mrs
Chimbaru,
that the learned judge misdirected herself when she found that the
State’s fears and concerns were justified, was not properly
made.






In the
circumstances, none of the grounds of appeal relied upon by the
appellant has any validity, and no irregularity or misdirection
has
been proved to have been committed by the learned judge when she
dismissed the appellant’s application. Consequently, the
appellant has failed to establish any basis on which the learned
judge’s decision can be interfered with.






The appeal
is, therefore, dismissed.


















Byron
Venturas & Partners
,
appellant’s legal practitioners


Attorney-General’s
Office
,
respondent's legal practitioners