COURT WATCH 9/2013

[10th July 2013]

Update on Glen 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.”

Current Status: Waiting for Trial Judge’s Decision on Application for Discharge

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.]

This situation 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. 

Law 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. 

Bail Applications

Various bail 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. 
• Madzore 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 risks. 
• 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 case.

Further 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: 

• October 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. 

A Side-Effect of the Case

UZ rejects Madzore’s application to resume studies after release

When arrested 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 case pending. 

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