BHUNU
J: On the 1st of April 2009 the 8 respondents appeared before the
Magistrate sitting at Harare charged with defeating or obstructing the course
of justice as defined in section 184 (1) (e) of the Criminal Law (Codification
And Reform) Act [Chapter (9 : 23].
All the accused persons are
Congolese refugees. They are alleged to have interfered with a witness who had
reported a case of child abuse against a
fellow refugee who has since been arrested under CR Hatfield 105/2/09. While
investigations were still in progress the accused allegedly teamed up and
approached the witness at her residence where they threatened her with
unspecified action should she persist to implicate their friend. Owing to the
alleged threats the witness is said to be living in fear and is now uncooperative
with the police.
On
those facts the state opposed bail on the basis that the accused are of no
fixed abode. It was submitted that the accused had given their friends'
addresses as their own residential addresses. It was further argued that the
accused were likely to interfere with investigations as the minor's parents or
guardian were unknown.
The
respondents in unison vouched that they will not interfere with investigations.
Thereafter the record reads as follows:
By Court
Q.
Where do you reside?
R.
A
A1 - 38 Desmond Rd
A2 - 3. 56 Airport Rd Hatfield.
A4 & A 5 Tongogara Refugee Camp.
A6 - 54 St Andrews Hatfield.
A7 & 8 - 3 Logan
Crescent Hatfield.
Ruling
The reasons advanced by the state were not
substantiated in any way. Therefore all accused in the Court's view are
suitable candidates for bail. Bail is therefore granted (See cover for
conditions.).
- To deposit USD10 bail each.
- To reside at their given addresses.
- Not to
interfere with witnesses.
- To surrender travel documents.
- To report once a week on Friday between 6 am and 6 pm
at Hatfield police station"
The state has now appealed
against the magistrate's decision on the grounds that:
1.
respondents are likely to interfere with witnesses.
2.
Respondents are facing serious allegations and are
likely to abscond and
3.
They are of no fixed aboard.
In elaboration of the state's appeal Mr. Masamba argued that the
Magistrate had dealt with the application in the most perfunctory manner
without carrying out a proper enquiry to enable him to make a just and informed
decision.
At
the appeal hearing there was a suggestion that the respondents may have
deserted from Tongogara Refugee Camp in Chipinge. There was also a suggestion
from counsel for the respondents that the complainant has now been placed in a
place of safety such that it is now highly unlikely that the respondents can
interfere with her. An examination of the record of proceedings shows that when
giving their particulars to the police 4th and 5th
respondents indicated that they resided at number 56 Airport Road Hatfield
whereas in Court they told the presiding magistrate that they resided at
Tongogara Refugee camp.
The
1st respondent gave his residential address as 38 Desmond Rd without specifying the
location in which that number is located yet the presiding magistrate failed to
notice that such an address could not be located.
At
the appeal hearing we were told without any contradiction that all the
respondents are recognised refugees based at Tongogara camp. They are required
to fill in a log book each time they leave the camp. It appears therefore that
their movements in and out of Tongogara Refugee Camp are regulated. Section 12 (2)
of the Refugees Act [Chapter 4:03 ]
empowers the responsible minister to regulate and designate places where
refugees may stay. It provides that:
"(2) The Minister may, by
notice published in the Gazette, designate places and areas in Zimbabwe
within which all-
(a) recognized
refugees and protected persons; and
(b) persons who have
applied in terms of section seven for recognition as refugees; and
(c) members of the
families of persons referred to in paragraph (b);
or any classes thereof, as
may be specified in the notice, shall live."
As
things stand we do not know whether the respondent lawfully left Tongogara Camp
and whether they can lawfully reside at the addresses given outside Tongogara
Refugee Camp.
It
appears to me that indeed the presiding magistrate does not appear to have put
much thought into his work before making the order. If fourth and fifth
respondents are indeed resident at Tongogara Refugee Camp in Chipinge it
boggles the mind why they were made to report at Hatfield police station
weekly. With the current economic hardships can it honestly be said that they
will be able to meet that bail condition without any difficult. The sincerity
of the respondents in opting to report
at Hatfield police station from Chipinge is questionable.
Magistrates need to be reminded of
the onerous duty cast upon them in applications of this nature particularly
where the accused are unrepresented as was the case in this matter. The words
of Reynolds J in the case of Attorney General v Phiri 1987 (2) ZLR 33
(HC) at 35 C. are worth recounting. In that case the learned Judge had
occasion to remark that:
"The
fundamental principle governing the Court's approach to applications for bail
is that of upholding the interests of justice. This requires the Court, as
expeditiously as possible, to fulfill its function of safeguarding the liberty
of the individual, while at the same time protecting the administration of
justice and the reasonable requirements of the state."
In
this case it can hardly be said that the ends of justice to ensure that the
respondents would not abscond were catered for. As I have demonstrated above
there are too many gapping holes which the Court could have filled in by making
simple enquiries. The respondents being foreign refugees, the court ought to
have at least verified the respondent's residential addresses before granting them
bail. This was important in the face of
the state's submission that the respondents were of no fixed abode.
It
is trite that the onus in a bail application rests with the applicant to prove
on a balance of probabilities that he is a good candidate for bail. In this
case, the onus rested with the respondents but they were severely handicapped
in that they were in captivity in a foreign land without legal representation.
Granting the applicants bail in the absence of vital information was not doing
them a favour because it rendered them
vulnerable on appeal.
This
again brings me to the need to remind magistrates of their duty to the
unrepresented accused person. Judicial work is a painstaking job which calls
for unwavering dedication to duty. Taking the easy way out as happened in this
case is often not the answer. Such a disposition can easily compromise the ends
of justice either way. Seeing that the accused were in custody and without
legal representation it was incumbent upon the Court to call for the
verification of the respondents' given residential addresses.
It is therefore not surprising that
both counsel are agreed that the presiding Magistrate appear to have hastily
made his determination without the full facts having been placed before him.
For instance we do not know whether or not the respondents can lawfully reside
at their given addresses outside the designated refugee camp. We do not know
whether the respondents deserted Tongogara Refugee Camp. These facts can easily
be verified from the camp administrators or the High Commissioner for refugees
so we were told at this appeal hearing.
According
to the dictum in R v Heerworth 1928 AD 265 a judicial officer must not
only ensure that justice is done but that it is seen to be done In this case it
cannot be said that justice was done and seen to be done when the presiding
officer took the easy way out and granted bail in the absence of vital
information which was readily available by way of a simple enquiry.
As a result of
the magistrate's failure to make the necessary enquires we do not know whether
the abused child is now in a safe place such that it can no longer be interfered
with. We do not know whether the residents at the given addresses outside
Tongogara Refugee camp are willing to
accommodate the respondents..
We do not know the whereabouts of
the witness allegedly intimidated by the respondents and what safeguards if any,
can be put in place to ensure that her own safety and the ends of justice are
not compromised.
For the fore going reasons and more, both counsel are agreed that the
ends of justice can only be met by quashing the proceedings in the Magistrates Court
to facilitate a proper enquiry before a fair and just decision can be made. I
believe this can be done by the court invoking its review powers It is
accordingly ordered:
1.
That the proceedings in the Magistrates Court sitting
at Harare on the 1st April 2009 be and are hereby quashed and set
aside.
2.
That the matter be and is hereby remitted to the Magistrates Court
for a fresh hearing and determination.
Attorney General's Office, the Appellant's
Legal Practitioners
Chinamasa Mudimu
Chinogwenya & Dondo, the Respondent' Legal Practitioners.