TAZVIONA and ANOTHER v STATE (43 of 2025) [2025] ZWMTHC 43 (24 July 2025)

5 HCMTJ 43-25 HCMTCR 1155/25 BLESSING TAZVIONA And PROMISE TAZVIONA versus THE STATE HIGH COURT OF ZIMBABWE SIZIBA J MUTARE, 21 & 24 July 2025 APPLICATION FOR BAIL PENDING TRIAL Mr K.I Munyoro, for the applicants Mr M. Musarurwa, for the respondent SIZIBA J: This is an application for bail pending trial in terms of s 117A of the Criminal Procedure and Evidence Act [Chapter 09:07]. The applicants are facing a charge of attempted murder contrary to s 47(1) as read with s 189(1) of the Criminal Law (Codification and Reform) Act [Chapter 9:23]. The application was filed on 16 July 2025. I heard the application on 21 July 2025 and then asked for additional written submissions from both parties. The applicants together with the complainant one Willard Kashaya are all young men who left Harare together and came to Penhalonga area in Mutare in search of money which some have labelled as the root of all evil. They are all artisanal miners. The first applicant is aged 26 years of age while the second applicant is aged 24. The complainant is aged 23 years. On 9 May 2025 at 2000 hours and at Redwing Mine, the crew decided to embark on its usual risky work. The two applicants were holding the rope as the complainant was being let down to go and work underground. Whether it was by design or accident, only the trial court will tell but what transpired is that the rope was loosened and the complainant plunged ten metres downward and sustained a broken spinal cord. He became unconscious. He was then rescued and hospitalized. He is lucky to be alive. The applicants were then charged with attempted murder and theft. In their bail statement, the applicants have maintained that the complainant’s fate was as a result of an accident as the rope slipped from their grip. They contend that if they had intended the complainant’s demise, they would not have helped him to find medical attention at their expense. They argue that they would not have had any reason to seek to murder their associate whom they came all the way with from Harare. They also deny stealing the US$100 from his pockets as alleged by the State. On the other hand, the State’s position is that the applicants connived to let go on the rope so as to cause the complainant’s death. After he had fallen, one of them allegedly followed him and searched him and took his US$100 from his pocket. The complainant in his statement alleges that the one who followed him down the pit further pushed him into a tunnel under the shaft. When he gained consciousness, he called out for help and he was rescued when the applicants had already fled from the scene. The State opposed bail pending trial against the applicants on the basis that they are facing a serious charge and that they may be induced to flee because of the prospect of a lengthy prison term. It was contended further that the State has a strong case against the applicants. No other compelling reasons were proffered in opposition to bail. It was not refuted that the applicants have a fixed abode, that they do not have travelling documents, that they did not evade arrest and that they do not have previous convictions or pending cases. From a reading of the papers which were placed before me, I became keen to know how the complainant was rescued from this abyss that he found himself in after he gained consciousness. This, to me, was very crucial in assessing the strength of the case against the applicants. The papers which were before me did not assist in this. When counsel came to argue the case, Mr Munyoro insisted that the applicants are the ones who rescued the complainant that is why the complainant did not name any individual who rescued him. On the other hand, Mr Musarurwa retorted that the applicants did not render any help to the complainant. He insisted that he could avail a statement by the witness who rescued the complainant when the applicants were not there at the scene. It was then agreed that additional submissions be filed by both parties to clarify this issue before I could decide this matter. This was done. Attached to the State’s additional submissions was a statement by one Authur Gurai which is reproduced hereunder as follows: “1. I am a male adult aged 20 years residing at Cinnamon, Penhalonga and I am not employed, I am contactable at 0779967214. 2. 1 know the accused persons Blessing Tazviona and Promise Tazviona not only in connection with this case but same are local persons. 3. 0n the 9th day of May 2025 at around 2000hours and at Cinnamon mine, I was sleeping and I was called by Marshal Mhandu to come and help Willard who was thrown in a mine shaft by the accused persons. 4. 1 then went outside and helped Willard to sleep inside the base, then I asked the complainant what had transpired and he told me that the accused person thrown him inside a mine. 5. The accused persons were then begged by the complainant to return the money that they had stolen from the complainant and they refused to give him his money. Recorded by 997285E Cst Maizon On 12/05/25 at 2030 hours ZRP Penhalonga In a serious charge such as murder, the assessment of the strength of the State case becomes relevant and needful where the State alleges that an accused person may be induced to abscond due to the prospect or likelihood of a lengthy custodial sentence. See Jongwe v The State SC62/02. In S v Manyama HMT 27/21, Mwayera JA (as she then was) aptly stated the position as follows at p 2 of the cyclostyled judgment: “The applicant in this case is jointly charged with a co-accused and both are facing a very serious offence for which if convicted is likely to be visited with a lengthy imprisonment term or life or even capital punishment. It is settled that the seriousness of the offence alone is not good enough reason to deny bail as the presumption of innocence operates in favour of the applicant. The seriousness of the offence of necessity has to be considered cumulatively with other factors such as the nature of allegations, the evidence or strength of the state case and the likely sentence.” In the present matter, the State’s insistence that the applicants deliberately intended the death of the complainant by colluding to let go the rope that he was being let down with and cause him to plunge into the mine shaft has not been satisfactorily supported by any witness statement so far. The statement of the complainant does not tell exactly who rescued him. The applicants claim that the incident was an accident and that they immediately rendered help and rescued the complainant and took care of the medical expenses. The statement from a witness who is said to have rescued the complainant after the applicants had fled tells a different story altogether as appears above. That statement only narrates how the witness in question provided accommodation to the complainant on the night in question and nothing more. The question then remains as to where the strength of the State case lies in all this. I am alive to the fact that this is not an inquiry for purposes of the trial. The inquiry is whether the serious nature of the charges coupled with the alleged strength of the State’s case should be found to constitute compelling reasons to deny the applicants bail pending trial in the circumstances of this case. It is trite that the seriousness of the charge alone cannot constitute a basis to deny bail pending trial. Where the State wishes to reinforce the seriousness of the charge with the argument that it has a strong case against an applicant in a bail application, then, such proposition should be backed by some preliminary information or evidential material which prima facie tilts the scale against the suspect to link him to the perpetration of the offence and thereby demonstrating that such an accused person may be tempted to abscond so as to escape from the high likelihood of a lengthy prison sentence upon conviction. Such evidential material should be placed before the court and not just referred to by State counsel especially if it is documentary evidence or a witness statement unless if it is common cause. Where, as in this case, the States fails to provide a recorded statement from a single witness supporting or corroborating its assertions against the applicants, it cannot be accepted that the State case is strong at this point and resultantly in the context of this case it follows that the State has failed to proffer any compelling reasons to deny the applicants bail pending trial. Their version that the complainant’s injury was as a result of an accident remains unchallenged and strong at this stage and if that is so, then it is proper to infer or accept that they cannot be induced to abscond in the absence of prima facie evidence supporting their conviction. In view of the above considerations, I am inclined to grant bail pending trial to both applicants on the following conditions: Each of the applicants shall deposit a sum of US$350 or Zig Equivalent with the Clerk of Court, Mutare Magistrates Court.Both applicants shall reside at house number 4508 Old Highfields, Harare until finalization of this matter.Both applicants shall report once every week on Fridays at Machipisa Police Station between 0600 hours and 1800 hours until this matter is finalized.The applicants shall not interfere with State witnesses and or evidence. L.T Muringani Law Practice, applicants’ legal practitioners National Prosecuting Authority, respondent’s legal practitioners 5 HCMTJ 43-25 HCMTCR 1155/25 5 HCMTJ 43-25 HCMTCR 1155/25 BLESSING TAZVIONA And PROMISE TAZVIONA versus THE STATE HIGH COURT OF ZIMBABWE SIZIBA J MUTARE, 21 & 24 July 2025 APPLICATION FOR BAIL PENDING TRIAL Mr K.I Munyoro, for the applicants Mr M. Musarurwa, for the respondent SIZIBA J: This is an application for bail pending trial in terms of s 117A of the Criminal Procedure and Evidence Act [Chapter 09:07]. The applicants are facing a charge of attempted murder contrary to s 47(1) as read with s 189(1) of the Criminal Law (Codification and Reform) Act [Chapter 9:23]. The application was filed on 16 July 2025. I heard the application on 21 July 2025 and then asked for additional written submissions from both parties. The applicants together with the complainant one Willard Kashaya are all young men who left Harare together and came to Penhalonga area in Mutare in search of money which some have labelled as the root of all evil. They are all artisanal miners. The first applicant is aged 26 years of age while the second applicant is aged 24. The complainant is aged 23 years. On 9 May 2025 at 2000 hours and at Redwing Mine, the crew decided to embark on its usual risky work. The two applicants were holding the rope as the complainant was being let down to go and work underground. Whether it was by design or accident, only the trial court will tell but what transpired is that the rope was loosened and the complainant plunged ten metres downward and sustained a broken spinal cord. He became unconscious. He was then rescued and hospitalized. He is lucky to be alive. The applicants were then charged with attempted murder and theft. In their bail statement, the applicants have maintained that the complainant’s fate was as a result of an accident as the rope slipped from their grip. They contend that if they had intended the complainant’s demise, they would not have helped him to find medical attention at their expense. They argue that they would not have had any reason to seek to murder their associate whom they came all the way with from Harare. They also deny stealing the US$100 from his pockets as alleged by the State. On the other hand, the State’s position is that the applicants connived to let go on the rope so as to cause the complainant’s death. After he had fallen, one of them allegedly followed him and searched him and took his US$100 from his pocket. The complainant in his statement alleges that the one who followed him down the pit further pushed him into a tunnel under the shaft. When he gained consciousness, he called out for help and he was rescued when the applicants had already fled from the scene. The State opposed bail pending trial against the applicants on the basis that they are facing a serious charge and that they may be induced to flee because of the prospect of a lengthy prison term. It was contended further that the State has a strong case against the applicants. No other compelling reasons were proffered in opposition to bail. It was not refuted that the applicants have a fixed abode, that they do not have travelling documents, that they did not evade arrest and that they do not have previous convictions or pending cases. From a reading of the papers which were placed before me, I became keen to know how the complainant was rescued from this abyss that he found himself in after he gained consciousness. This, to me, was very crucial in assessing the strength of the case against the applicants. The papers which were before me did not assist in this. When counsel came to argue the case, Mr Munyoro insisted that the applicants are the ones who rescued the complainant that is why the complainant did not name any individual who rescued him. On the other hand, Mr Musarurwa retorted that the applicants did not render any help to the complainant. He insisted that he could avail a statement by the witness who rescued the complainant when the applicants were not there at the scene. It was then agreed that additional submissions be filed by both parties to clarify this issue before I could decide this matter. This was done. Attached to the State’s additional submissions was a statement by one Authur Gurai which is reproduced hereunder as follows: “1. I am a male adult aged 20 years residing at Cinnamon, Penhalonga and I am not employed, I am contactable at 0779967214. 2. 1 know the accused persons Blessing Tazviona and Promise Tazviona not only in connection with this case but same are local persons. 3. 0n the 9th day of May 2025 at around 2000hours and at Cinnamon mine, I was sleeping and I was called by Marshal Mhandu to come and help Willard who was thrown in a mine shaft by the accused persons. 4. 1 then went outside and helped Willard to sleep inside the base, then I asked the complainant what had transpired and he told me that the accused person thrown him inside a mine. 5. The accused persons were then begged by the complainant to return the money that they had stolen from the complainant and they refused to give him his money. Recorded by 997285E Cst Maizon On 12/05/25 at 2030 hours ZRP Penhalonga In a serious charge such as murder, the assessment of the strength of the State case becomes relevant and needful where the State alleges that an accused person may be induced to abscond due to the prospect or likelihood of a lengthy custodial sentence. See Jongwe v The State SC62/02. In S v Manyama HMT 27/21, Mwayera JA (as she then was) aptly stated the position as follows at p 2 of the cyclostyled judgment: “The applicant in this case is jointly charged with a co-accused and both are facing a very serious offence for which if convicted is likely to be visited with a lengthy imprisonment term or life or even capital punishment. It is settled that the seriousness of the offence alone is not good enough reason to deny bail as the presumption of innocence operates in favour of the applicant. The seriousness of the offence of necessity has to be considered cumulatively with other factors such as the nature of allegations, the evidence or strength of the state case and the likely sentence.” In the present matter, the State’s insistence that the applicants deliberately intended the death of the complainant by colluding to let go the rope that he was being let down with and cause him to plunge into the mine shaft has not been satisfactorily supported by any witness statement so far. The statement of the complainant does not tell exactly who rescued him. The applicants claim that the incident was an accident and that they immediately rendered help and rescued the complainant and took care of the medical expenses. The statement from a witness who is said to have rescued the complainant after the applicants had fled tells a different story altogether as appears above. That statement only narrates how the witness in question provided accommodation to the complainant on the night in question and nothing more. The question then remains as to where the strength of the State case lies in all this. I am alive to the fact that this is not an inquiry for purposes of the trial. The inquiry is whether the serious nature of the charges coupled with the alleged strength of the State’s case should be found to constitute compelling reasons to deny the applicants bail pending trial in the circumstances of this case. It is trite that the seriousness of the charge alone cannot constitute a basis to deny bail pending trial. Where the State wishes to reinforce the seriousness of the charge with the argument that it has a strong case against an applicant in a bail application, then, such proposition should be backed by some preliminary information or evidential material which prima facie tilts the scale against the suspect to link him to the perpetration of the offence and thereby demonstrating that such an accused person may be tempted to abscond so as to escape from the high likelihood of a lengthy prison sentence upon conviction. Such evidential material should be placed before the court and not just referred to by State counsel especially if it is documentary evidence or a witness statement unless if it is common cause. Where, as in this case, the States fails to provide a recorded statement from a single witness supporting or corroborating its assertions against the applicants, it cannot be accepted that the State case is strong at this point and resultantly in the context of this case it follows that the State has failed to proffer any compelling reasons to deny the applicants bail pending trial. Their version that the complainant’s injury was as a result of an accident remains unchallenged and strong at this stage and if that is so, then it is proper to infer or accept that they cannot be induced to abscond in the absence of prima facie evidence supporting their conviction. In view of the above considerations, I am inclined to grant bail pending trial to both applicants on the following conditions: Each of the applicants shall deposit a sum of US$350 or Zig Equivalent with the Clerk of Court, Mutare Magistrates Court. Both applicants shall reside at house number 4508 Old Highfields, Harare until finalization of this matter. Both applicants shall report once every week on Fridays at Machipisa Police Station between 0600 hours and 1800 hours until this matter is finalized. The applicants shall not interfere with State witnesses and or evidence. L.T Muringani Law Practice, applicants’ legal practitioners National Prosecuting Authority, respondent’s legal practitioners