Before: CHIDYAUSIKU, CJ,
In Chambers
This is
an appeal against the decision of NDOU J granting the respondent bail
pending trial.
After
hearing submissions by counsel, the appeal was dismissed with no order as to
costs. I indicated that reasons for
judgment would be handed down in due course.
These are the reasons.
In this
appeal the appellant, the Attorney-General, seeks the setting aside of the
order of the court a quo and
prays that the respondent be remanded in custody.
In granting
bail, the High Court ordered that –
1. The
respondent should deposit US$2 000 with the Registrar of the High Court, Bulawayo;
2. The
respondent should reside at number 15, 14th Avenue, Woodvale, Bulawayo, until the
matter is finalised;
3. The
respondent should report at Bulawayo Central Police at the CID Law and Order
three times a week on Mondays, Wednesdays and Fridays between 6 am and
6 pm;
4. The
respondent should surrender his passport to the Registrar of the High Court, Bulawayo;
5. The
respondent should not interfere with any State witnesses or evidence;
6. The
respondent should not leave a forty kilometre radius of Bulawayo Post Office
without the leave of a Bulawayo
magistrate;
7. The
respondent should not attend political gatherings.
The Attorney-General
appealed against the High Court determination upon the following grounds:
"(a) The
court a quo did not give due
weight to the State's fears that the respondent was likely to pursue his agenda
through unconstitutional means. This fear
is founded on the premise that –
(i) Thousands
of fliers are said to be awaiting distribution of Mthwakazi Liberation Front;
(ii) These
fliers have not been recovered by the police;
(iii) The
respondent once released on bail is likely to cause them to be released to
members of the public;
(iv) That
the respondent has a pending case of a similar nature, i.e. contravening
s 19(1)(a) of POSA [Cap 11:17]
Regional Court Bulawayo Number CRB 71-2/04 HB No. 33731/04 wherein he
circulated the 'fourteen page document' wherein he was advocating for the
creation of the 'Province of Matabeleland by the Ndebele speaking people
fighting with spears and arrows against the government and Shona speaking
people';
(v) That
it is not in the interests of justice and State security to admit them to bail;
(b) The
learned court a quo misdirected
itself in dismissing the totality of the messages in the fliers as not being
treasonous and therefore insinuating that the case was not serious. It is not an element of the crime of treason
that the people who received the fliers acted on them or not or whether they
took them seriously or not. The
messages in the fliers have the potential to incite people to rise or revolt
against a constitutionally elected government."
The facts
of this case are aptly set out in the respondent's Heads of Argument and may be
summarised as follows.
The
respondent, jointly with two co-accused persons, was charged with the crime of
treason as defined in s 20(1)(b) of the Criminal Law (Codification and
Reform) Act [Chapter 9:23] (hereinafter
referred to as "the Code").
The circumstances
leading to the charge as set out in the Request for Remand Form 242 (hereinafter
referred to as "Form 242") are that:
"On March 2011 at Office 3, Princess Court, Park
Mansion, Bulawayo, the accused persons conducted an
executive meeting together with seven others who are still at large. During the meeting they arrived (at) and
agreed on ways of influencing people to rise and demonstrate against the
government which would result in creations (sic)
of a separate State of (the) Republic
of Mthwakazi. (The) accused agreed to distribute fliers of
which (sic), amongst others, had the
following message 'rukani njengabantu
buse Ethiopia, Sudan, Egypt
and Tunisia. Ngabantu labo njengathi belegazi bo'
(literally translated to mean 'rise up like the people of Ethiopia, Sudan,
Egypt and Tunisia. They are people like us and have blood as
well'."
It was further alleged that:
"1. All
three accused were found in possession of Mthwakazi Liberation Front fliers and
calendars.
2. There
are minutes of the meeting in which (the) accused persons and others agreed to
distribute fliers.
3. Pamphlets
were recovered from accused number one."
The
respondent and his co-accused appeared for initial remand at the Bulawayo
magistrate's court on Tuesday 8 March 2011. They objected to and challenged the State's
request for remand. By a ruling of
magistrate John Masimba, delivered on Friday 11 March 2011, the
respondent and his co-accused were placed on remand in custody at Khami Maximum
Prison pending trial.
The
respondent and his co-accused applied for bail pending trial at the High Court,
Bulawayo. The State opposed the granting
of bail. The High Court granted
bail. The terms and conditions of
admission to bail pending trial granted by NDOU J on 24 March 2011 are
set out above.
The
appellant invoked s 121 of the Criminal Procedure and Evidence [Chapter 9:07] upon the handing down
of the judgment. The appellant thereafter
filed an application for leave to appeal against the judgment in terms of
s 44 of the High Court Act [Chapter 7:01]. The application for leave was opposed by the
respondent and his co-accused.
NDOU J
dismissed the State's application for leave to appeal against the granting of
bail to the respondent's two co-accused.
He, however, granted leave to appeal against that part of the judgment
granting bail to the respondent pending trial.
I have
already set out above the grounds of appeal.
Essentially
this Court is being asked to determine whether NDOU J misdirected himself in
the following respects –
(a) by
failing to give due weight to the State's fears that the respondent was likely
to pursue his agenda of removing the government through unconstitutional means.
Put differently, by rejecting the contention by the State that the respondent
is likely to commit similar offences if granted bail;
(b) by
dismissing the messages in the fliers as not being treasonous and therefore not
serious.
The
power of this Court to interfere with the decision of the court a quo in an application for bail is
limited to instances where the manner in which the court a quo exercised its discretion is so unreasonable as to
vitiate the decision made. See S v Ncube 2001 (2) ZLR 556 (S). Another ground for interference with a
decision of a court a quo is the
existence of "a misdirection occasioning a substantial miscarriage of
justice" by the court a quo
– S v Makombe SC 30/04.
In
granting the applicant leave to appeal, the learned Judge, correctly in my
view, found that there was a possibility that this Court might reasonably
arrive at a determination that the respondent may commit a similar offence
whilst on bail contrary to the learned judge's conclusion.
The
learned Judge drew a distinction between the respondent and his two co-accused because
of the two further allegations against him, which did not relate to his
co-accused, namely –
(a) that some
fliers were recovered from him; and
(b) that
the respondent had a pending case under POSA.
These factors, the appellant contended, established that the
respondent was likely to commit similar offences if admitted to bail.
The first
question that falls for determination is whether the court a quo misdirected itself in concluding that the appellant had
failed to establish that the respondent had a propensity to commit similar
offences and was therefore likely to commit similar offences if granted bail.
The
following cases have considered the issue of when bail should be denied on the
ground that the accused is likely to commit similar offences whilst on bail.
In R v Phillips 1947 32 CR App R 47 a
twenty-three year old accused had a bad record. In addition it was accepted that he had
previously committed nine similar offences whilst on bail. The applicant was granted bail pending an appeal
by the court a quo. The appeal court
was of the view that the accused should have been denied bail. I respectfully agree with the conclusion of
the appeal court. Nine previous
commissions of similar offences while on bail is overwhelming evidence that an
accused is likely to commit similar offences while on bail if bail is
granted. The commission of nine similar offences while
on bail, coupled with a bad record of previous convictions, clearly shows that
an accused has no respect for the rule of law and the administration of
justice. Such an accused should not be
admitted to bail pending trial.
In S v Fourie 1973 (1) SA 122 (D) it was held
that an accused should not be denied bail merely because it appears that he may
commit a crime if released from custody.
It was held that one previous conviction and an unsubstantiated
suspicion against the accused are insufficient evidence that an accused was
likely to commit further crimes if released on bail. It was held further that an accused's past
record and his conduct whilst out on bail on another case are relevant
considerations for the granting or refusal to grant bail.
In Attorney-General v Phiri 1987 (2) ZLR 33
(H) the accused was placed on remand on allegations of committing twenty-two
crimes involving dishonesty. Whilst on
trial he was arrested for committing more crimes involving dishonesty. The accused was refused bail on the basis
that he was likely to commit similar offences whilst on bail. The evidence before the court was that the
accused had already committed further offences whilst on bail. It was held that the mere possibility of the
accused committing further crimes, standing alone, would not be sufficient to
outweigh the accused's right not to be deprived of his freedom. However, when added to a bad criminal record
are added allegations, on credible evidence, that the accused committed similar
crimes whilst on bail, the matter becomes highly persuasive and cogent and bail
should be denied. The reasoning was
that a person who commits crimes whilst on bail shows a disregard for the rule
of law and contempt for the administration of justice. Once commission of similar crimes has been
established, the onus shifts to the
accused to satisfy the court that there is no likelihood of repetition whilst
on bail.
The test established by this Court in S v Tsvangirai 2003 (1) ZLR 650 is
"whether there is a real danger or a reasonable possibility that the due
administration of justice would be prejudiced by bail being granted". In
that case the applicant was on remand on allegations of treason. He applied for bail. The State opposed the application on the
ground that he might commit a similar offence whilst on bail. It was found that on the evidence led by the
State the State's fears that the applicant might commit similar offences whilst
on bail was totally unfounded and bail was granted.
In S v Rudolph 2010 (1) SALR 262 (SC) the
appellant attacked his wife with a carpet knife at her place of employment a
month after she had been granted a protection order in terms of the Domestic
Violence Act. He cut her throat, poured
petrol over her, and attempted to set her alight. When he was restrained by her colleagues he
tried to cut his own throat. When this
happened, the accused was on bail on charges of rape and attempted murder of
his former wife. After the incident,
the accused suffered two heart attacks and a stroke. The accused was charged with attempted
murder of his wife.
Section 60(11)(a) of the Criminal Procedure Act, 51 of 1977, placed
the onus on the accused to satisfy
the court that exceptional circumstances existed which permitted his release in
the interests of justice. The accused failed
to place evidence before the court to meet the State case that he had attempted
to murder his wife with barbarous violence.
He had no explanation for his attack on his former wife. The accused was found to have a propensity
for violence and his release on bail was prohibited by s 67(4)(a) of the
Criminal Procedure Act. It is clear
from this case that the propensity must be for offences of a similar nature and
that the onus shifts to the accused
once evidence establishing the propensity is placed before the court.
An
analysis of the case law set out above will show that the principles that
govern admission to bail of an accused who is alleged to have a propensity to
commit similar offences whilst on bail may be summarised as follows –
(a) the
credibility and substance of the evidence establishing the propensity to commit
similar crimes;
(b) the
offences must be of a similar nature in their essential elements;
(c) the
offences need to be more than one or two; and
(d) the
accused is incorrigible or unrepentant.
Once the State has established the above, the onus shifts to the accused to show that there is no likelihood of the
accused committing similar offences and that the interests of justice would not
be prejudiced by his admission to bail.
In casu, as part of its case, the State alleges that contravention of
s 20(1)(b) of the Code is similar to contravention of s 19(1)(c) of
the Public Order and Security Act [Chapter 11:17]
(hereinafter referred to as "POSA"). I am not persuaded by this
submission for the following reason.
Section 20(1)(b)
of the Code reads:
"20 Treason
(1) Any person who is a citizen of or
ordinarily resident in Zimbabwe
and who –
(a) …
(b) incites,
conspires with or assists any other person to do any act, whether inside or
outside Zimbabwe,
with the intention of overthrowing the Government;
shall be guilty of treason and liable to be sentenced to death or to
imprisonment for life."
Section 19(1)(c)
of POSA reads:
"Gatherings conducing to riot, disorder or
intolerance
(1) Any
person who, acting together with one or more other persons present with him in
any place or at any meeting –
(a) – (b) …
(c) utters
any words or distributes or displays any writing, sign or other visible representation –
(i) with
the intention to engender, promote or expose to hatred, contempt or ridicule
any group, section or class of persons in Zimbabwe solely on account of the
race, tribe, nationality, ethnic origin, natural or ethnic origin, colour,
religion or gender of such group or class of persons; or
(ii) realising
that there is a risk or possibility that such behaviour might have an effect
referred to in subpara (1);
shall be guilty of an offence and liable to a fine not exceeding
level 12 or to imprisonment for a period not exceeding twelve years or to both
such fine and imprisonment."
Section 19 of POSA was repealed by the Code and an offence of a
similar genre was introduced in s 42 of the Code. This new offence was not listed as a
permissible verdict to treason under the Fourth Schedule of the Code.
I am
satisfied that s 19 of POSA is substantially and materially different from
the offence of treason as defined in s 20 of the Criminal Code. The essential elements of the two offences
are different. Under POSA the mens rea is to promote hatred, whereas
under treason the mens rea is
intending to overthrow the Government of Zimbabwe. Under POSA the actus reus is to utter any words or display any writing,
whereas under treason the actus reus
is not defined. As is noted above, the
penalties are substantially different – life imprisonment or death in respect
of treason and a fine or twelve years' imprisonment in respect of a
contravention of s 19 of POSA.
The
State conceded that the respondent was removed from remand in the case before
the Regional Court in which he was alleged to have violated POSA. That case is no longer pending as alleged in
the remand form. The appellant advised
the Court that the State is unlikely to pursue that case, especially since the
section of POSA under which the respondent was charged has since been repealed
and that, due to the effluxion of time, it is unlikely that the charges will be
resuscitated. I find therefore that the
respondent has no pending case.
I now
turn to consider the evidence of propensity to commit a similar offence which
the State placed before the Court.
I have
found that the two offences of treason and contravening s 19 (the repealed
section) of POSA are not similar. I
have also found that the case against the respondent in the Regional Court
Bulawayo is no longer pending, the respondent having been removed from
remand. The respondent has sworn on
oath that he has no intention of committing similar offences whilst on bail.
I am
satisfied that the evidence in this case does not justify the State's fears
that the respondent will pursue his agenda of removing the Government through
unconstitutional means.
Turning
to the contention of the appellant that the learned Judge misdirected himself
by failing to consider the messages in the fliers, the evidence is to the
contrary. At pp 4-6 of the
cyclostyled judgment the learned Judge expressed the view that after
considering all the messages in the fliers the question of whether the messages
in the fliers were treasonous or not was for the trial court to decide. This quite clearly shows that the learned
Judge applied his mind to the fliers and came to a conclusion.
The
State failed to establish that its fears could not be catered for by appropriate
bail conditions.
In the
result, I find no misdirection on the part of the court a quo which warrants interference by this Court. The judgment of NDOU J of 24 March
2011 is unassailable and is hereby upheld.
The
respondent, after being granted leave to appeal, filed an affidavit, in which
he swears positively, under oath, that he has no intention of committing
similar offences whilst on bail.
The
affidavit filed by the respondent is replete with invective language similar in
effect to the language referred to in the dissenting opinion of MALABA DCJ
in Jonathan Moyo & Ors v Austin Zvoma
& Anor SC 28/10 at p 60 of the cyclostyled judgment. This is what
the learned DEPUTY CHIEF JUSTICE had to say about the use of invective language
in affidavits filed in Court proceedings:
"There is need to discourage the use of such invective language
in court proceedings."
The
respondent's affidavit contains invective language which accuses the
Attorney-General of "misrepresenting facts", "grave injustice",
"misleading contentions", and "the Attorney-General is using the
criminal justice system perversely as a weapon of political oppression against
me".
I am inclined
to follow the route taken by MALABA DCJ in the case of Moyo supra that the Court
should decline to award costs to parties who use such language which:
"… offended its sense of fairness and justice for the Court to
be put in a position in which it had to read through all the papers containing
some of the impolite and discourteous language."
Counsel
for the respondent apologised to the Court for the language, after being
challenged by the Court. It is my view
that the apology, since it came only after the Court had already been put in
the position of reading the impolite language, came too late.
The
appeal is dismissed with no order as to costs.
The judgment of NDOU J of 24 March 2011 is upheld and the
respondent is admitted to bail on the same conditions therein.
Cheda
& Partners, respondent's legal
practitioners
