MUTEMA J: The applicant is a South African national. He is on bail
together with three accused South African nationals on allegations of fraud
involving US$1 million. The alleged principal perpetrator, one Ping Sung Hsieh,
is in South Africa awaiting extradition to this country. His extradition hearing
is scheduled for 14 June, 2011.
On 28 February, 2011
OMERJEE J granted the applicant and his co-accused bail pending trial. The bail
order reads as follows:-
“1. The applicant to deposit $500 with the
Clerk of Court Harare Magistrate Court.
2. The applicant resides at No. 4 Dromore
Road, Highlands, until this matter is finalised.
3. The applicant reports at Highlands
Police Station twice each day once between 8 a.m. – 12 p.m, once between 3 p.m.
– 6p.m. daily.
4. The applicant's passport shall be surrendered
by the C.I.D. Law and Order Section to the Clerk of Court, Harare Magistrates
Court.
5. The 3 trucks and trailers shall remain
parked at ZRP Support Unit Chikurubi until this matter is finalised”.
On 10 March, 2011 the
applicant and his co-accused applied before a magistrate to have the above bail
conditions altered. The magistrate declined jurisdiction and the matter came
before KUDYA J on appeal. The draft order sought for the alteration of the bail
conditions was couched in these terms:-
1.
The appellants' bail terms and conditions be varied as
follows:-
(a)
Each appellant deposit with the clerk of Court a further
US$500-00.
(b)
Each
appellant reside at his usual residence in South Africa pending the
finalisation of this matter.
(c)
Each
appellant's passport be returned to him and each appellant be and is hereby
authorised to return to South Africa
(d)
The
first appellant (Bilal('s Toyota Fortuner Motor Vehicle registration number BIL
786 GP be returned to him
(e)
The trucks and trailers remain in Zimbabwe as stated in the
original bail order.
(f)
The appellants return to Zimbabwe for trial on 20 June 2011.
KUDYA J dismissed the
appeal for alteration of bail conditions.
In the present application
the draft order sought is in these words:
IT IS ORDERED THAT:
1.
The order admitting applicant to bail dated 28 February 2011
be and is hereby amended as follows:-
(a)
By the deletion of para 2 and the substitution of the
following:-
“2. The applicant
be and is hereby authorised to travel to South Africa immediately upon the
granting of this order and may remain in South Africa, pending the commencement
of his trial in matter number CRB 1626-9/11”
(b)
By the
deletion of para 3 and the substitution of the following:
“3. The applicant
is directed to return to Zimbabwe to attend his trial scheduled to commence on
20th June 2011 and shall upon his return to Zimbabwe reside at No. 4
Dromore Road, Highlands, Harare until this matter is finalised”.
(c)
By the
deletion of paragraph 4 and the substitution of the following:
“4. The Clerk of
Court, Harare Magistrates Court is directed to release the applicant's passport
to him immediately”.
(d)
By the
inclusion of the paragraphs 5 and 6 as follows:
“5. The applicant is directed to commence reporting
to Highlands Police Station twice each day once between 08.00 a.m. and 12.00
p.m. and once between 3 p.m – 6 p.m. daily. 5.00 (sic) upon his return to Zimbabwe”
“6. The applicant
shall surrender his passport to the Clerk of Court, Magistrates Court upon the
applicant's return to Zimbabwe”.
The application is
argued to be predicated on humanitarian grounds. Those grounds are that
applicant's wife Nazmeera Ebrahim, with whom he has two children aged five
years and eight months old respectively, is seriously ill. She was diagnosed
with cancer last year and was also diagnosed with heart problems necessitating
a heart transplant. Her condition is now dire. Although opportunities for a
transplant have been received in applicant's absence there is no one to take
the lead as head of the family. This has frustrated the wife to the extent of
refusing to attend at the doctor's rooms preferring to die if necessary, if
applicant does not return to South Africa. In addition, the two minors have no
one to look after them. Applicant has been advised by the medical team and members
of his family that the longer he remains in Zimbabwe the higher the likelihood
of his wife dying as her chances are reducing daily when there is no one to
sign all the relevant and necessary documents for the heart transplant.
Two supporting documents-
annexures “A” and “C” – were attached to the application. These are
respectively a letter and an affidavit from his wife's medical team.
The respondent opposed
the application on two main planks, viz that the humanitarian reasons proferred
have no basis at law as they do not in any way save the interests of justice
and that applicant, if allowed to leave this Court's jurisdiction, will never
be seen again since he is a peregrinus.
Now, in terms of
subsection (1) s 126 of the Criminal Procedure and Evidence Act, [Cap 9:07] conditions of a recognizance
can only be altered or added to if necessary or advisable in the interests of
justice. In casu the alteration of or
addition to the bail conditions being sought is premised solely on humanitarian
grounds. The question for my resolution is whether the grounds advanced are in
the interests of justice. I have not been able to find any authority and none
has been cited by the applicant showing that humanitarian grounds such as the
ones given in the instant case fall within the ambit of the phrase “in the
interests of justice”. Such moral or humanitarian considerations have no place
in our bail jurisprudence for every accused person denied bail has a moral or
humanitarian crisis consequent to him/her.
The supporting documents
attached to the application are in fact inadmissible for falling foul of r3 of
the High Court (Authentication of Documents) Rules, 1971. They have not been
authenticated by the class of people mentioned in that Rule. The Rule
stipulates that any document executed outside Zimbabwe must be authenticated by
a notary public, mayor or person holding judicial office or head of the
Zimbabwean diplomatic mission etc.
Annexure “A” reflects
the author's signature, is a fax copy and has no authentication. Annexure “C”
is also a fax copy of Professor Essop's affidavit deposed to before one Paul
Frederick Mills, an ex officio
justice of the peace who is a retired lieutenant colonel of the South African
Police, The original affidavit was produced during the hearing but it did not
help applicant's cause. It too is not authenticated, In fact, on both the
original and fax copy the words notary public appearing on the portion for the
commissioner of oaths signature are deleted. Counsel for the applicant in vain
argued that the line drawn across those words is not a deletion but part of the
notary public's signature. However, it does not require a questioned document
examiner to tell, at first sight, that those words were crossed out, meaning
that the commissioner is not a notary public. In any event, buttressing the
above finding is the absence of a notary public's seal.
The net effect of the
inadmissibility of the supporting documents is that the humanitarian reasons
advanced by the applicant are just a bald or naked assertion. The Court cannot
obviously accept his mere say so. Even if those documents were admissible the
result would still be the same in that the reasons proferred are clearly not in
the interests of justice and also it cannot be true that applicant's presence
is the sole sine qua non for his
wife's surgical operation to take place. The patient can herself authorise the
operation or any family member can do that or even a court of law if the worst
comes to it.
Regarding the issue of
flight risk, I have no difficulty in associating myself with KUDYA J's
sentiments in his judgment of 18 March, 2011. He said,
“It seems to me that their appeal strikes
at the heart of the due administration of justice. They are seeking to be
released on the strength of their word that they will return on 20 June, 2011
to face trial. The local law enforcement
agents would not be able to apprehend them if they decide to default. This
court would have to rely on the magnanimity of the South African Law
enforcement agents to arrest them. The South African Police Service's
magnanimity would depend on the complex extradition procedures in their
country. Indeed the extradition of Ping has proved to be an arduous process. It
would delay the due administration of justice unnecessarily ….. I cannot simply
agree to abdicate my jurisdiction in favour of foreign processes over which the
High Court of Zimbabwe does not have any control or influence”.
The applicant has failed
to persuade me to believe his mere say so as his bond that he will return to
face trial once his is given leave to return to his country of origin. The
probabilities are not in his favour.
In the event, the
application sought for the alteration of bail conditions be and is hereby
dismissed.
Mtetwa & Nyambirai, applicant's legal practitioners
Criminal Division of the
Attorney General's Office, respondent's legal
practitioners
