Senior Court Reporter
The four Zimbabweans facing charges related to the discovery of 6kg of gold in Henrietta Rushwaya’s hand-baggage as she was trying to leave the country last month have been denied bail on the grounds that the State case against them is strong and they have the means and incentive to abscond.
However, the fifth accused, and only foreigner charged, Pakistani businessman Ali Muhamad was granted $100 000 bail after Harare regional magistrate Mr Ngoni Nduna found he was not a flight risk since the State had a weak case against him, so far just documents stamped with his company name, and he had substantial investments in Zimbabwe.
Muhamad, who is a director of Ali Japan 786 Zimbabwe and says he has investments worth US$50 million in the country, was represented by Mr Robin Tanyanyiwa of Tanyanyiwa, Gapare Attorneys.
However bail was denied to Rushwaya, who had the gold in her bag when this was searched at Robert Gabriel Mugabe International Airport, to CIO officers Stephen Tserai and Raphios Mufandauya who arranged for Rushwaya to use the VIP route and helped carry her baggage, and to Gift Karanda who is accused of interfering in the arrest of Rushwaya by using fake CIO credentials. Mr Nduna said the four had taken actions that they would find hard to explain away.
In his bail ruling, Mr Nduna said although Muhamad was a foreigner, he had substantial commercial interests in the country, which worked in his favour when the court was considering granting him bail. Muhamad was not “physically” involved in the movement of the gold and was only implicated by the documents which allegedly had stamps of his company, Ali Japan 786.
The regional magistrate noted that “it is not in dispute that gold was discovered and recovered undeclared” in Rushwaya’s luggage and that Rushwaya, Tserai and Mufandauya had associated themselves in one way or the other with the luggage and the contraband such that for them to extricate themselves from the offence, appears not to be an easy task.
“However, Muhamad, in the court’s view seems to be on a different pedestal in this respect.
“His involvement is on the basis of the alleged incrimination by Rushwaya. Muhammed appears to be the only person in the chain of the events who did not personally do anything that links him to the charges. Those developments render the State’s case against him very weak.”
In denying Rushwaya, Tserai, Mufandauya and Karanda bail, Mr Nduna noted that they had connections outside the country and they had means to escape the court’s jurisdiction. The gold worth about US$330 000 found in the luggage showed that they had the capacity to fund their escape from trial.
“I cannot ignore the seriousness of the charge which they are facing and the fact that Rushwaya, who is the principal here, was caught in flagrante delicto (caught in the act) so to speak. It will not be very easy for her and co-accused to extricate themselves from the offence. They ought, under the circumstances, to expect conviction and if that happens, the probability of them getting a severe punishment is also very high,” he said.
Mr Nduna said Rushwaya and her co-accused attempted to interfere with investigations by offering bribes and switching off the CCTV monitoring system at the airport.
Lawyers representing Rushwaya, Tserai, Mufandauya and Karanda indicated that they would approach the High Court on Monday to appeal against Mr Nduna’s decision to deny their clients bail.
“We are definitely going to lodge an appeal against this refusal of bail pending trial. It is our considered view that the honourable court, with respect, might have misdirected itself. The grounds of appeal will be set out in the appeal papers, which are likely to be lodged with the High court on Monday,” said Mr Rubaya, who was representing Tserai.
Rushwaya’s lawyer, Mr Tapson Dzvetero, along with Mr Joshua Chirambwi, who appeared for Mufandauya, and Mr Dumisani Mthombeni, who is representing Karanda, also said they would appeal against the decision.
Rushwaya, Muhamad, Tserai, Mufandauya and Karanda are expected back in court on November 27 for routine remand.