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Violence, recrimination and arrests after policeman's death in Glen View - Index of articles
View 29 murder trial - Part II - Update and review of struggle for
bail - Court Watch 9/2013
July 10, 2013
View 29 Murder Trial – Part II
Part I –
Court Watch 6/2013
of 30th May – brought the story of this trial to the point
where the defence had filed written arguments in support of their
application for the discharge of all accused at the close of the
State case. The filing of the State’s replying arguments and
a hearing date for oral arguments were awaited.
Part II now
follows. This bulletin refers to developments since 30th May, and
outlines the defence campaign to secure bail for the accused after
they were committed for trial on 1st March last year. At the time
of writing 24 of the 29 accused are out on bail, and 5 are still
in prison, denied bail because they are deemed flight risks –
Last Maengahama, Tungamirai Madzokere, Rebecca Mafikeni, Yvonne
Musarurwa and Simon Mapanzure.
Note: in Part
I covering this trial we said the deceased Mutedza had died “as
a result of injuries received in a scrimmage with members of the
public at Glen View 3 shopping centre”. Given the differing
versions of events put forward by State witnesses at the trial,
we should have said he died ”as a result of injuries sustained
at Glen View 3 shopping centre. According to the police, these were
inflicted by MDC-T members, but according to some State witnesses
were sustained when he fell from a departing police vehicle.”
Status: Waiting for Trial Judge’s Decision on Application
On 12th June
the High Court heard oral submissions from both defence and State,
on the defence application for discharge of all the accused in terms
of section 198(3) of the Criminal
Procedure and Evidence Act: “If at the close of the case
for the prosecution the court considers that there is no evidence
that the accused committed the offence charged ... or any other
offence of which he might be convicted thereon, it shall return
a verdict of not guilty”. The State opposed the application.
Justice Bhunu reserved judgment. His decision is awaited.
If the application
is successful, the accused will be acquitted. If it fails, the accused
will be put on their defence, and will have the opportunity to call
witnesses and to give evidence themselves.
While the outcome
of this extraordinarily long-drawn out and much interrupted case
is being awaited, we provide a resume of the struggle the lawyers
had to get bail for the accused once they had been committed for
trial on 1st March 2012 – and all committed to prison to await
trial, even those who had previously been out on bail by order of
the Supreme Court. [Note: The struggle for bail after arrest but
before committal for trial was covered in Court
Watch 4/2012 of 9th March 2012.]
did not begin to change until October. Our outline of the campaign
for bail is preceded by a brief introductory summary of the law
on bail in murder cases featuring a police victim.
on Bail in a Murder Case with a Police Victim
In most cases
an accused person is entitled to be released on bail “unless
the court finds that it is in the interests of justice that he or
she be remanded in custody”; this means the prosecution must
satisfy the court that bail should not be granted
But where the
charge is murder of a police officer carrying out his or her duties,
the law is different, because this is one of the relatively few
offences listed in Part 1 of the Third Schedule to the CPE Act.
For such offences the law is that bail cannot be granted unless
the accused “adduces evidence which satisfies the judge that
exceptional circumstances exist which in the interests of justice
permit his or her release”. [CPE Act, section 117(1) and (6).]
This means that a heavy burden lies on the accused person to prove
to the court that in his or her case there are ”extraordinary
factors that are outside common human experience”.
If bail is refused,
there can be an appeal to the Supreme Court – or if an appeal
fails or is not pursued, a fresh application may be made to a judge
at a later date if, and only if, the accused can demonstrate to
the judge that circumstances have changed since the previous refusal.
applications were made to the court in the months following the
first appearance in the High Court on 12th March 2012, the date
initially set for the start of the trial.
- Bail application
after committal for trial - On 12th March, the accused through
their lawyers made an application to be released on bail for the
duration of the trial [the accused had been committed for trial
on 1st March]. The application was dismissed by Justice Bhunu.
- Bail application
after filing of defence outline - The accused made another bail
application in the High Court after the written outline of their
defence to the charge had been filed. After hearing submissions
from both prosecution and defence Justice Bhunu reserved judgment.
On 19th June he handed down a judgment dismissing the application
on the basis that the filing of the defence outline did not amount
to ”adducing of evidence” as required by CPE Act section
117(6) [see above]. The statement outlining the defence case,
said the judge, was not evidence. Justice Bhunu also observed
that under section 117(6) “the odds are heavily stacked
against the accused”.
- First release
on bail since committal for trial on 1st March - On 17th October
2012 Cynthia Manjoro was released on bail. She was the first of
the 29 accused persons to be released on bail since the accused
were indicted for trial on 1st March. Ms Manjoro’s vehicle
was identified by the police as the car that had been used as
the ‘getaway vehicle’ the day that Inspector Mutedza
died. Ms Manjoro was not driving the vehicle on that day. A State
witness had testified in court that the police had told him Ms
Manjoro was only arrested and held in order to induce the person
who had been driving the vehicle that day, her friend Darlington
Madzonga, to come out of hiding. Justice Kudya ruled there had
been a change of circumstances and granted bail. The State did
not oppose the bail application.
and Magaya granted bail - On 13th November 2012, Solomon Madzore
and Lovemore Magaya were granted bail and released from custody.
During cross-examination, it had become clear that Chief Inspector
Clever Ntini, the investigating officer in the case, had withheld
important information from the court about their alibis, and that
Inspector Ntini’s affidavit contradicted his evidence in
court that they had been positively identified by undercover police
who were in Glen View on the day Inspector Mutedza died. Inspector
Ntini admitted misrepresenting the facts and confessed that Madzore
and Magaya had not been positively identified. Justice Bhunu considered
this to be a change of circumstances and granted bail.
- 21 more
accused persons released on bail - On 17th December 2012, 21 of
the accused still in custody were granted bail by Justice Bhunu,
who sat during the court vacation as he considered the matter
to be urgent. The 21 bailed were Oddrey Chirombe, Augustine Tengenyike,
Lloyd Chitanda, Tendai Chinyama, Jefias Moyo. Albina Rutsito,
Gabriel Shumba, Stephen Takaedzwa, Linda Madyamhanje, Tafadzwa
Billiard, Simon Mudimu, Dube Zwelibanzi, Simon Mudimu, Augustine
Tengenyika, Paul Rukunda, Lazarus Maengahama, Standford Maengahama,
Kerina Dewa, Memory Ncube, Phineas Nhatarikwa and Stanford Mangwiro.
All were considered to have now established a case for bail. But
bail applications by five accused, Last Maengahama, Tungamirai
Madzokere, Rebecca Mafikeni, Yvonne Musarurwa and Simon Mapanzure,
were dismissed because Justice Bhunu considered them to be flight
- Latest bail
application for last 5 in custody turned down - A fresh application
for bail was made at the beginning of the 2013 legal year. On
20th February Justice Bhunu dismissed the application ruling that
the accused were still a flight risk. At the date of this bulletin,
they remain in custody, awaiting the judge’s decision on
the defence application for discharge at the close of the State
Arrests on Accusations of Involvement in Mutedza Death
Three more persons
have been arrested on murder charges for alleged involvement in
the death of Inspector Mutedza:
2012 - Tarisai Kusotera and Jackson Mabota are the MDC-T Youth
Assembly chairperson and deputy chairperson, respectively, for
Glen View South. They were released on bail on 7th November 2012,
and are awaiting developments.
- April 2013
Paul Gorekore, an MDC-T youth leader and former councillor, was
arrested on 2nd April, taken to court two days later, and remanded
in custody. A bail application has been lodged in the High Court
but not yet heard.
of the Case
Madzore’s application to resume studies after release
on 5th October 2011, Solomon Madzore was a final year social work
student at the University
of Zimbabwe. He was forced to defer his studies during his 13
months in custody. When he was eventually released on bail in mid-November
2012 he made an application to the University to resume his studies
and complete his final semester when the University reopened in
February 2013. In January, Mr Madzore was informed that his application
to continue his studies at UZ was rejected because he has a criminal
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