Bail
Application
MUSHORE
J:
This
is an appeal against the refusal of bail (pending trial) in the
Magistrates' Court in terms of section 121 of the Criminal
Procedure and Evidence Act [Chapter
9:07]
on the following grounds:
“1.
The Magistrate misdirected himself in law in failing to find that
'compelling reasons' demanded by s50(1)(d) of the Constitution of
Zimbabwe, 2013 had not been established by the State, particularly in
that:
1.1
There was neither evidence nor any other basis from which it could be
said that appellant was likely abscond;
1.2
There was neither evidence nor any other basis from which it could be
said that appellant would interfere with witnesses;
1.3
Reference to 'public outcry' is, in itself, never a compelling
reason given that it is the people themselves that entrenched a
presumption of innocence in the Constitution;
1.4
The State did not address any of the bail conditions offered by the
appellant, thereby failing to discharge the onus thrust upon it by
law. A compelling reason is one that remains notwithstanding bail
conditions.
2.
The decision to deny bail on the basis of the above grounds is so
outrageous in its defiance of logic or common sense that no
reasonable magistrate, applying his/her mind to the facts and
conscious of the right to liberty, could ever have reached that
conclusion, particularly in that:
2.1.
No reasonable magistrate could have failed to find that the bail
conditions offered by the appellant overwhelmingly addressed and
answered each of the grounds upon which bail could be refused;
2.2.
No reasonable Magistrate could have failed to find that the
appellant, in the circumstances, met all the requirements set out in
law for release on bail.”
Appellant
is a former Member of Parliament and Cabinet Minister. He was
arrested on 15 November 2017 at his home in Mount Pleasant. He stated
that on the night in question, he heard an explosion at around
midnight of 14 November 2017 but did not wake up until he had heard
the sound of a second explosion which shook his house.
His
wife had woken up at the sound of the first explosion upon which she
had observed certain persons jumping into the property. Appellant got
up to investigate whereupon his bedroom door burst open and 5 to 8
men armed with AK47 rifles burst into the room,(who he described as
being soldiers), pointed the guns at him and handcuffed him whilst
blindfolding him with his T-shirt.
He
stated that the men were dressed in 'military uniform (green
camouflage) including shoes'.
Appellant
stated that he was forced out of his home barefooted and blindfolded
and placed lying sideways in a lorry with occupants securing his
body, head and middle to prevent him from wiggling out of the
vehicle.
He
described that after travelling for about an hour he was interrogated
with accusations that had not run his Ministry (Ministry of Home
Affairs) well, with one of the assailants or detainers complaining
that the appellant had failed to provide him with a stand when he was
Minister.
He
was taken to an undisclosed location and detained there for some
days.
He
told the court that on the second day of his detention, his captors
allowed him to write a note so that they could collect his medication
from his home. He also stated that he also requested a shirt and
trousers and toiletries. At some point, his captors brought his
Doctor to attend to him whilst he was so detained.
During
his time in captivity, over the next few days he was interrogated by
four to six men about decisions he had taken as Minister of Local
Government. He said that he was guarded at all times by two to three
people.
He
told the court that he was never assaulted by his captors and that
they made efforts to meet his requests for provisions because he is
diabetic with other illnesses.
The
day before he was taken to court, they removed his blindfold and
drove him to his home. Upon arrival appellant noticed policemen
sitting in a car which was parked outside the gate of his house. He
told the court that the Police who were blocking the entrance to his
home, complied with an authoritative request made by his captors, for
them to move their vehicle out of their way.
His
captors dropped him off.
At
his house his abductors allowed him to make a request to his wife to
bring him his spectacles. His captors left and the Police who were at
his house took over and basically ferried him away.
He
recalled the specific date of his abduction as being 15 November
2015, because he had attended a Cabinet meeting earlier on the same
day. Appellant vehemently denied that he had been arrested on 23
November 2017 which is the date of arrest reflected on the charge
sheet. His charge sheet shows that he was arrested on three counts
for the following crimes as alleged:
“1.
Count one - Section 4 of the prevention of Corruption Act [Chapter
9:16]
-
'Does
anything that is contrary to or inconsistent with his duty as a
Public Officer.'
2.
Count two - Criminal Abuse of Duty as Public Officer in terms of
s174(1)(a) of the Criminal Law (Codification and Reform) Act [Chapter
9:23].
3.
Count three- Fraud.”
Count
one pertained to actions allegedly taken by appellant in 2004 to
2009. Count two pertained to alleged criminal acts by the appellant
on 13 December 2006 and 25 March 2008. Count three pertained to a
fraud allegedly committed by the appellant between 8 December 2005 to
26 January 2006.
Appellant
immediately applied for bail. The State opposed his application on
the following grounds:
“1.
Considering the seriousness of the offence and the stipulated
sentence if convicted, the accused is likely to abscond so as to
evade prosecution.
2.
Accused is the former Minister of Local Government who had access and
control of the personnel hence the accused is likely to interfere
with witnesses.
3.
The current political situation is not favourable to the accused's
safety. It is therefore proper for the accused to be remanded in
custody for his safety.”
The
reasons given by the State both in opposing bail in the court a
quo,
and in opposing bail on appeal are not founded in fact.
The
Court a
quo
was not furnished with reasons or evidence upon which it could make a
determination regarding whether or not the interests of justice would
be best served by remanding appellant into custody.
Section
117(1) and (2) of the Criminal Procedure and Evidence Act [Chapter
9:07]
states as follows:
“117
Entitlement to bail
(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 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.”
No
reasons were provided, nor any evidence led in support of the State's
grounds for opposing bail. Neither did the court a
quo
make any enquiry to establish the veracity of the State's reasons
for opposing bail as would have been expected of it, prior to
arriving at its determination refusing bail.
The
State didn't provide the reason for believing that appellant would
abscond save to just merely allege that appellant may abscond;
neither did it identify which witnesses appellant was likely
interfere with if he was let out on bail.
The
court also failed to make an enquiry into the State's allegation
that “the current political situation was not favourable to
appellant” to the extent that appellant needed to be remanded in
custody.
The
state case consisted of mere allegations; and the court misdirected
itself in lending credence to those grounds of opposition by simply
accepting them without enquiry.
The
court a
quo
grossly
misdirected itself in its findings. See Aitken
v Attorney-General & Anor v Aitken
1992
(1) ZLR 249 (S); Air
Zimbabwe v Phiri
1988 (2) SA 696; S
v Ncube
2001 (2) ZLR 556.
The
errors and omissions committed by the court a
quo
in arriving at its determination to refuse appellant bail are so
egregious that they warrant me invoking my powers of review in terms
of s27(1)(c) of the High Court Act [Chapter
7:06].
I
deem that the proceedings a
quo
were not in terms of real and substantial justice. The gross errors
committed a
quo
require correcting.
The
decision made a
quo
was unconstitutional to the extent that the court did not observe, as
it was obliged to, the provisions of s50 of the Constitution.
Appellant
was subjected to inhumane and undignified treatment at the hands of
his captors. He was not informed of the reason for his abduction, at
the time that he was arrested in the dead of night at his home, or at
any time prior to being brought to court on 23 November 2017.
Contrary
to the peremptory provisions of s50(2)(b), appellant was held for far
beyond 48 hours in an undisclosed location.
I
was troubled by the comments made by the court a
quo
in remaining complicit with the State's misleading statement that
the date of arrest was when the Police arrested appellant, in
circumstances where the appellant had been abducted and kept
incommunicado by State agents several days before the Police
'arrested' appellant.
It's
obvious that the Police were in cahoots with the mysterious Sate
agents given the fact that they took off where the State agents left
off.
The
appellant was detained by State agents on 15 November 2017 and only
bought before a court of law a whole week later. To that end the
court sanctioned a breach of s50(5) of the Constitution.
Appellant
was kept incommunicado and thus denied his right to remain in
communication with family or to consult in private with his lawyer or
doctor during the period of his detention per
s50(5)(c):
“(5)
Any person who is detained, including a sentenced prisoner, has the
right —
(a)
to be informed promptly of the reason for their being detained;
(b)
at their own expense, to consult in private with a legal practitioner
of their choice, and to be informed of this right promptly;
(c)
to communicate with, and be visited by —
(i)
a spouse or partner;
(ii)
a relative;
(iii)
their chosen religious counsellor;
(iv)
their chosen legal practitioner;
(v)
their chosen medical practitioner; and
(vi)
subject to reasonable restrictions imposed for the proper
administration of prisons or places of detention, anyone else of
their choice;
(d)
to conditions of detention that are consistent with human dignity,
including the opportunity for physical exercise and the provision, at
State expense, of adequate accommodation, ablution facilities,
personal hygiene, nutrition, appropriate reading material and medical
treatment; and
(e)
to challenge the lawfulness of their detention in person before a
court and, if the detention is unlawful, to be released promptly.”
When
looking at the reasoning of the court a
quo
in denying appellant bail, it is my overall view that the court a
quo
got swept up by the sensationalism of the case and allegations
surrounding appellant's arrest.
The
Magistrate lost sight of the fact that she was seized with an
ordinary application for bail because she did not deliberate upon the
meaning and intention behind section 50(1) of the Constitution which
reads:
“50
Rights of arrested and detained persons
(1)
Any person who is arrested —
(a)
must be informed at the time of arrest of the reason for the arrest;
(b)
must be permitted, without delay —
(i)
at the expense of the State, to contact their spouse or partner, or a
relative or legal practitioner, or anyone else of their choice; and
(ii)
at their own expense, to consult in private with a legal practitioner
and a medical practitioner of their choice; and must be informed of
this right promptly;
(c)
must be treated humanely and with respect for their inherent dignity;
(d)
must be released unconditionally or on reasonable conditions,
pending a charge or trial, unless there are compelling reasons
justifying their continued detention; and
(e)
must be permitted to challenge the lawfulness of the arrest in person
before a court and must be released promptly if the arrest is
unlawful.”
The
arrest and detention of the appellant were in my view illegal.
The
unfortunate and illegal actions which preceded appellant's
appearance before the court a
quo,
and which illustrate the manner by which appellant was dealt with by
State agents and the Police ran afoul to the presumption of innocence
weighing in his favour.
However
as appalling as his treatment was, I am mindful of the fact that the
charges would still not been tainted. See: Jestina
Mukoko v Attorney General
2012
(1) ZLR 117 (SC).
The
appeal before me is for bail pending trial.
In
my view, this is a proper case for setting aside the decision of the
court a
quo
on the basis that the court
a quo
grossly erred in denying appellant bail.
Accordingly,
I order as follows:
1.
The appeal succeeds.
2.
The appellant be and is hereby admitted to bail on the following
conditions stated hereunder:
(a)
The appellant deposits an amount of US$5,000.00 with the clerk of
court, Harare Magistrates' Court.
(b)
The appellant to reside at 847 Golden Stairs, Mt Pleasant, Harare.
(c)
The appellant to report three times a day one between the hours of
6am to 10am; 1am to 2pm; 4pm–6pm at Marlborough Police Station,
Harare.
(d)
The appellant to surrender title deeds to his residential property.
(e)
The appellant to surrender his passport and any other travel
documents he may possess.
(f)
The appellant is not to interfere with witnesses or tamper with
evidence.
(g)
The appellant is not to visit the offices of the Ministry of Local
Government and those of the Reserve Bank of Zimbabwe.
Lovemore
Madhuku Lawyers,
appellant's legal practitioners
National
Prosecuting Authority,
respondent's legal practitioners
