MATHONSI
J: The opposition to this bail application graphical
demonstrates how officers prosecuting on behalf of the prosecutor general
either by design or lack of understanding, have remained rooted in the past
without embracing the new constitutional order when it comes to the issue of
bail. It also shows why, what has been
roundly referred to as the re-alignment of laws to the new constitution, should
be prioritized in the interest of the smooth administration of justice and good
order.
This applicant for bail
was arrested on 20 January 2016 by Nyamandlovu police who preferred charges of
rape against him. He was only taken to
court for initial remand on 31 January 2016, eleven days after his arrest. It is not apparent from the papers whether
authority for his detention beyond the requisite 48 hours was obtained. Ordinarily such extension would be for 96
hours before the accused person is brought to court.
The allegations against him
as appear on the Request for Remand Form 242 are that:
“On
20 January 2016 at stand 13 Goliths village Nyamandlovu, the accused had sexual
intercourse with the complainant twice without her consent and threatened to
assault her if she tells anyone. The
accused got into the complainant's bedroom hut whilst she was asleep, closed her
mouth and pinned her down and --- had sexual intercourse with her twice.”
Upon his initial
appearance on these allegations the applicant was remanded in custody. He has approached this court seeking his
admission to bail pending trial. He
states that he is a mere suspect who is presumed innocent until proven guilty. Whatever evidence has been lined up against
him, it is yet to be tested at the trial.
He is therefore entitled to his liberty especially as he is of fixed
abode, has no travel documents, has a good defence to the charges and as such
he is not a flight risk.
The application is
opposed by the state on essentially three grounds namely that the applicant is
likely to abscond; he is likely to endanger the safety of members of the public
and is likely to interfere with witnesses.
In formulating his opposition Mr Hove
who appeared for the state relied on the provisions of section 117 (2) and
(3) of the Criminal Procedure and Evidence Act [Chapter 9:07]. Therein lies the problem because those
provisions cannot be said to be still part of our law. They have been relegated to the annuls of
history.
Section 117 provides:
“(1)
Subject to this section and section
32, a person who is in custody in respect of an
offence
shall be entitled to be released on bail at any time after he or she has
appeared in court on a charge and before sentence is imposed, unless the court
finds that it is in the interests of justice that he or she should be detained
in custody.
2. The
refusal to grant bail and the detention of an accused person in custody shall
be in the interests of justice where one or more of the following grounds are
established:
(a) where
there is a likelihood that the accused, if he or she were released on bail will
–
(i) endanger
the safety of the public or any particular person or will commit an offence
referred to in the First Schedule; or
(ii) not stand his or her trial or appear to
receive sentence; or
(iii) attempt to influence or intimidate
witnesses or to conceal or
destroy
evidence; or
(iv) undermine
or jeopardise the objectives or proper functioning of the criminal justice
system, including the bail system; or
(b) where
in exceptional circumstances there is the likelihood that the release of the
accused will disturb the public order or undermine public peace or security.”
Subsection
(3) of s117 deals with factors to be taken into account by the court when
considering whether the grounds set out in subsection (2) exist.
It
is apparent from a reading of the foregoing provisions that the onus was on the
applicant for bail to satisfy the court that he or she is a good candidate for
bail. He had to show that the interests
of justice would not be prejudiced by his release on bail. In terms of section 117 A (1) an accused
person who is in custody could apply for bail at anytime to a judge or magistrate,
whether verbally or in writing. In such
bail application he or she would be compelled to inform the court of any
previous convictions any pending charges against him and whether he had been
released on bail in respect of those charges.
The
lawgiver has now made the admission of arrested persons to bail a
constitutional right. This is by virtue
of section 50 (1) (d) of the Constitution of Zimbabwe which reads:
“Any
person who is arrested must be released unconditionally or on reasonable
conditions pending a charge or trial unless there are compelling reasons
justifying their continued detention.”
The
primary rule of statutory interpretation is that words of a statute must be
given their grammatical signification in trying to ascertain the intention of
the law maker. It is only if the literal
sense when so applied defeats the legislative intendment, that a deviation from
the ordinary meaning is permitted: S v
Nottingham Estates (Pvt) Ltd 1995 (1)
ZLR 253 (S) 256 E; Ebrahim v Min of the Interior
1977 (1) SA 665 (A) 678 A –C; Birch v
Klein Karoo Agricultural Co-operative Ltd
1993 (3) SA 403 (A) 411 E –G.
It
follows therefore that by constitutional enactment, an arrested person is
entitled as of right to be released either unconditionally or on reasonable
conditions pending a charge or trial. It
is only where it is shown that there are compelling reasons justifying that
person's continued detention that an arrested person can be denied bail. A constitutional provision can never be more
clearer.
All that an arrested person
is required to do is to apply for bail.
The onus of showing the existence of compelling reasons for continued
detention cannot possibly be his because he desires his release on bail. Therefore section 50 (1) (d) of the
constitution has shifted the onus of proof to the state to establish the existence
of compelling reasons why the arrested person should remain in detention.
The constitution has
rendered dysfunctional the provisions of section 117 of the Criminal Procedure
and Evidence Act [Chapter 9:07]. Its
elaborate requirements for the admission of an arrested person to bail cannot
remain part of our law to the extent that they are in consistent with section 50
(1) of the constitution. Whether laws
have been re-aligned to the constitution or not is immaterial, those that are
at variance with the constitution are no longer part of our law and are, to the
extent of their inconsistency, invalid.
It
means that where bail is being opposed without reference to compelling reasons
for an arrested person's continued detention there is no basis for opposition. The respondent appears caught in a time warp
where it continues, with nolstagia, to cling onto the grounds for denial of
bail contained in a provision that has long been rendered ineffectual.
As
pointed out in S v Khumalo HB 243/15, the state cannot deny
a person a fundamental right to admission to bail without satisfying the
requirement for denial of bail as set out by the constitution. It is time that the state seriously applied
its mind before venturing to oppose bail because to say that the applicant for
bail will abscond, will endanger the public and will interfere with witnesses
remain unsubstantiated allegations which do not meet the threshold of
compelling reasons set by the constitution.
For instance, nothing has been placed before me pointing to any
possibility of abscondment or interference.
The
applicant resides in Binga. He allegedly
raped a person in Nyamandlovu and there is nothing to suggest that he will
interfere with any witness. I am
therefore satisfied that the applicant is entitled to his release on bail.
Accordingly
it is ordered, that
1. The
applicant is hereby admitted to bail on the following conditions; that
(a) he deposits a sum of $100-00 to the
registrar of the High Court Bulawayo.
(b) he resides at Mayanda Village, Binga.
(c) he
reports once a week on Fridays at Tinde Police Station between the hours of
0600 and 1800 until the
matter is finalized.
(d) he
does not interfere with state witnesses.
Dube-Tachiona
and Tsvangirai, applicant's legal practitioners
National Prosecuting
Authority, respondent's legal practitioners
