MTSHIYA J: The applicants, who are all members of the
Movement for Democratic Change- Tsvangirai (MDC-T), face charges of insurgency,
banditry, sabotage or terrorism under s 23(1)(a) (ii) of the Criminal Law (Codification
and Reform) Act, [Cap 9:23] or
alternatively aggravated malicious damage to property in terms of s 143 of the
same Act.
On 4 May 2009, the applicants were
indicted for trial in the High Court in terms of Section 66 of the Criminal
Procedure and Evidence Act [Cap 9:07]
("the Act"). The lower court then correctly proceeded to commit the applicants
to prison as required by Subs (2) of s 66 of the Act.
On 8 May 2009, the applicants were
before me applying for bail pending trial. The respondent then raised a point
in limine arguing that the applicants
were not properly before the court due to a pending appeal in the High Court
and also due to the fact that the revocation of bail in terms of s 66(2) of the
Act did not apply to the applicants since they were already in lawful custody.
I listened to arguments on the issue and on 11 May 2009, I dismissed the
respondent's objection in limine. I
then indicated that the applicants could proceed to argue their fresh
application for bail. The matter was then postponed to 12 May 2009 to allow respondent
to file its response to the merits of the application. The respondent duly
filed its response on 12 May 2009 and the matter was then argued.
I must hasten at this point, to
mention that at the hearing on 8 May 2009, where the point in limine was raised, I pointed out that
the norm in this court is that when an objection in limine is raised, a party is normally enjoined to also address the
merits of the matter before the court. I believe that if that procedure had
been adhered to, this matter would have been disposed of on 12 May 2009. As I
indicated to the parties when I delivered my ruling on the preliminary issue,
this piecemeal approach to issues that are brought before the court cannot in
any way serve to promote the interests of justice. Legal practitioners should
appreciate that once a judge is seized with a matter, he/she dictates how the
matter should be handled. The common practice of presenting arguments on the
issues in limine and on the merits of
the case in the same breadth should remain the norm.
As already indicated, the applicants,
having been indicted for trial in the High Court on 4 May 2009, are now
applying for bail pending trial.
Apart from noting that the
applicants were, unlike their co-accused
once denied bail on 11 February 2009 but were later grated bail on 9
April 2009, which bail was later revoked by the filing of an appeal in the
Supreme Court by the respondent, I believe that there will be no legal value in
this court delving into the details of the applicants' previous efforts to be
admitted to bail. Their indictment dictates that they apply for fresh bail on
the basis of the facts indicated in the indictment papers.
In support of the bail application,
the applicants, in paragraphs 18.7-18.11 of their bail statement, submit as
follows:
"18.7 It is not alleged in the indictment what each
applicant did in relation to the
bombings and where, by whom and from whom the bombs were procured. There is no
suggestion as to who did what. There is no suggestion as to how they entered
all the premises, some of which are guarded twenty-four hours a day. There is
no indication in the State papers of how they evaded the security placed at
police stations.
18.8 None of the witnesses will directly link the
applicants to the offence. In addition there is no indirect (sic) or circumstantial evidence linking
the applicants to the offence. We now know that in the so called video
evidence, none of the applicants are implicated.
18.9 There is not even a scant suggestion of how
exactly each accused participated in the offence. The allegations are so vague
that it makes it very difficult for the applicants to proffer any meaningful
defence save to state that they deny the allegations. There is no indication of
whose plan it was to commit the offence. There is no indication of how
connected these accused persons were. In fact, most of these applicants
together with those who appear on CRB 8894-95/08 did not know each other until
they met at court on 29 December 2008. The State has not even shown that these
accused persons who are being jointly charged knew each other before they met
at court. Is the State suggesting that the applicants and their so called co-accused
simply met at the place of the alleged commission of the offences? Is it being
suggested that all of a sudden people who did not know each other found
themselves at one place, intending to do the same thing and went on to agree to
do it?
18.10 What we have are dangerous, unsubstantiated
generalisations. If indeed the State is relying on a lawfully extracted
confession it has no excuse. The allegations levelled against the applicants
ought to have been precise and to the point, clad with specifics as to what
each applicant did. Each of the applicants needs to know with certainty what he
is alleged to have done. It is understandable why the State has over
generalised. It is difficult to knit or to interweave a false story. None of
the applicants were involved.
18.11 There is no independent witness to testify in
the case. The State seeks to rely on a confession allegedly extracted from
first applicant implicating the
applicants, allegations he denies even in his warned and cautioned statement.
Instead, he has given in his detailed affidavit evidence of brutal assault and
torture by his captors who he alleges include the police (a fact confirmed in
the indictment). Torture, inhuman and degrading treatment vitiates any
confession made under those circumstances".
The applicants go on to submit that
the law should treat them in the same way as their co-accused who are out on
bail. They see no reason for their being treated differently when they are
jointly charged and also when they totally deny possession of offensive
weapons. Furthermore upon their temporary release from 17 April 2009 to 20
April 2009 they did not abscond. They argue that they are responsible citizens
who are employed and have family responsibilities they cannot run away from.
They all have fixed aboards. They have no previous convictions and are not
under any investigations for any other charges. All in all, the applicants
submit that there is no direct or circumstantial evidence linking them to the
charge. They therefore submit that they are suitable candidates for bail.
The respondent on its part argues
that, apart from the charges being serious, there is overwhelming evidence
against the applicants- which evidence will certainly lead to their conviction.
In the main, the respondent states that if the applicants are admitted to bail,
the following consequences will ensue:
"(a)
That the applicants are highly likely to abscond and evade justice.
(b)The applicants are likely to commit
similar offences if released on bail.
(c) That the admission of the applicants to
bail is likely to prejudice our
bail system.
(d) That the admission of the applicants to
bail will endanger the
the maintenance of Law and Order and
National Security.
The respondent also argues that previous
findings of fact by KARWI J and OMERJEE J. cannot b e ignored. The respondent
states the following in paragraph 7 of its response to the application:
"It is submitted that the fact that
these applicants in casu were found
in possession of offensive items in form of explosive devices stood judicial
imprimatur in this Honourable Court. Whilst it is now clear and settled that s
66 of the Criminal Procedure and Evidence Act has the effect of terminating the
existing bail, it is submitted that the judgment of MTSHIYA J that articulates
the interpretation of s 66 does not hold that previous findings of fact by the
same court are automatically terminated. The said judgment pronounces the
position that only bail prior to indictment will be terminated thereby
entitling the accused to position the court for bail. However in deciding the
suitability or otherwise of the accused persons to bail, this honourable court,
it is submitted must not pay lip service to previous findings of fact by this
Honourable Court. In essence therefore, KARWI J's finding that the offences are
serious, that the accused persons are likely to commit similar offences still
stand. Further, OMERJEE's finding that the three accused persons in casu were found in possession of offensive
items still stand as confirmed by the Supreme Court in case number SC 35/09".
Admittedly, and as pointed out by
the respondent, a bail application does not graduate to a trial of the accused.
That should be avoided and I have indeed warned myself not to turn this into a
trial of the applicants. However, in considering a bail application, the court
is guided by the respondent's allegations and the nature of the evidence in
support of such allegations. In casu,
the court's task is even made easier in the sense that it has before it, the
indictment papers. It is on the basis of the evidence from those papers that this
court is being called upon to consider the applicant's bail application.
In
our law, entitlement to bail is regulated by s 117 of the Criminal Procedure
and Evidence Act [Cap 9:07] ("The Act"),
particularly, subss (1) and (2) which provide as follows:
"(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 likelihood that the
accused, if he or she was 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 the exceptional circumstances
there is likelihood that the release of the accused will disturb the public
order or undermine public peace or security".
In order to properly address this
application I shall quote extensively from Aitken
and Anor v A-G 1992 (1) ZLR 249 where GUBBAY CJ, as he then was, had this
to say:
"The basic purpose from society's
point of view of the procedure known as "bail" is to strike a balance between
two competing interests - the liberty of accused, and the requirement of the
State that he stand trial to be judged and that the administration of justice
be safeguarded from interference or frustration. This proposition is amply
supported by authority. See, for instance, Lobel
& Anor v Chaassen N O 1956(1) SA 531(W) at 432 in fine 533A; S v Essack 1965(2) SA 161(D) at 162C-H; S v Bennett 1976(3) SA 652 (C) at
654G-H; S v Chiadzwa 1988(2) ZLR 19
(S);S v Matagoge & Ors 1991 (1)
SACR 539(B) at 542d-f. The system allows advantages to both the accused and the
State. The accused is permitted to keep the fabric of his life intact, to
continue with his employment or occupation, to support his dependants, and be
accorded the fullest opportunity of preparing his defence free from restraint.
It spares his family the hardship and indignity of enforced separation and,
perhaps, reliance upon welfare. The State, on the other hand, secures the
attendance of the accused at the trial without the cost of having to maintain
him in prison.
The notion that an accused is
presumed innocent until proven guilty is the cornerstone in an application for
bail. Consequently, it is the tradition of our courts to lean in favour of and
not against the liberty of the subject, and to grant bail where possible. But
though the presumption of innocent operates in favour of an accused even where
the case against him appears strong, too much emphasis should not be placed
upon it. The ends of justice would not be served if there were some "cognizable
indications" that the accused would not abide by the conditions of the bail
recognisance. See S v Fourie 1973(1)
SA 100(D) at 101G; A-G, Zimbabwe v Phiri 1987 (2) ZLR 33 (H) at 38; 1988
(2) SA 696 (ZH) at 700B.
The onus is upon the accused to show
on a balance of probabilities why it is in the interests of justice that he
should be freed on bail. See De Jager v
A-G, Natal & Anor 1967 (4) SA 143 (D) at 149G-H; S v Chiadzwa supra at 21F. This is the all embracing issue the
court is enjoined to address. Simultaneously it has to determine whether any
objection to bail can be obviated by the imposition of appropriate conditions
pertaining to release. See S v Bennett
supra at 656D-E".
I agree with the principles that
emerge from the above paragraphs and allow
myself to be guided by them.
It is indeed true that the
applicants face serious charges, but this application should be viewed in terms
of the principle spelt out in passages quoted above. The applicants who face
serious charges remain innocent until proven guilty. A plethora of cases (e.g. State v Hussey SC 181/91) emphasize the
principle that the seriousness of an offence alone should not be used to deny a
person bail. In casu the State
concedes, though not directly, that there is no direct evidence linking the
applicants to the charges and hence the submission that:
" .. At this stage of proceedings, the
State alleges the above facts which manifest that as a matter of circumstancial
evidence together with cumulative facts alluded to herein above, a reasonable
court will convict the accused persons."
The
facts alluded to are the disputed video evidence and confession
The evidence given in the indictment
papers indicates in my view that to a large extent, and due to the absence of
direct evidence linking each applicant to the offence, the respondent will rely
mainly on circumstancial evidence. Apart from the common fact of belonging to
the same political party, there is nothing so far in the papers to show that
there was agreement for a common purpose,
namely to commit a crime on the part of the applicants. The fact that some of the
applicants did not even know each other until they appeared in court was not
disputed.
In looking at the strength of the
respondent's case I receive comfort from SANDURA JA who in S v Ncube 2001 (2) ZLR 556 (S), had this to say:
"I should add that in determining a
bail application the strength of the case for the prosecution should be
assessed. As MILLIN J said in Liebman v
Attorney-General 1950 (1) SA 607 (W) at 609:
The court looks at the circumstances
of the case to see the person concerned expects or ought to expect, conviction.
If it is found on circumstances disclosed to the court that the likelihood of
his conviction is substantial, that the person ought reasonable to expect
conviction, then the likelihood of his absconding is greatly increased. Thus
the court goes into the circumstances of the case that is, evidence at the
disposal of the crown. Where there has been a preparatory examination that is
the material which is used. Where no preparatory examination has yet been held
the court has to consider such material as is furnished to it by the accused
himself (the applicant) or by the Attorney -General or his representative".
I am not persuaded to accept that
both KARWI J and OMERJEE J's findings were findings of fact. They were dealing
with bail applications where they expressed their opinions in support of the
use of their discretions. Those findings, in my view, cannot be used against
the applicants. The fact that the applicants face serious charges is common
cause.
As for the issue of offensive
weapons, given the circumstances of this case, one cannot easily dismiss the probability
of the truth of the explanations of each applicant. I would therefore place the
applicants in the same position as their co-accused who are now out on bail.
That being the case, I would find no
justifiable cause to treat the applicants differently from their co-accused.
Accordingly, I find no basis in saying the applicants unlike their co-accused,
if granted bail would abscond, commit similar offences, prejudice the bail
system and/or endanger the maintenance of law and order and national security. The respondent has not made a case in respect
of all its fears. There is no evidence to support those fears.
As was submitted by the respondent, this
is not the applicants' trial. What one has to examine at this stage is whether
or not the applicants should be denied bail in terms of s 117 (2) of the Act.
Given the circumstances of this case
I strongly believe that is not in the interests of justice to treat the
applicants differently from their co-accused. The distinction would have made
sense if the respondent had through evidence shown the individual roles played
by each of the seven (7) co-accused persons in the execution of the common
purpose which resulted in the commission of the offences they face. The mere
fact that the other four accused were not found in possession of the weapons
allegedly used in common purpose in committing the offence does not render them
clean in a joint charge. In any case the applicants deny possession of those
weapons, which for all intents and purposes would have been for a common
purpose.
The principle of equal treatment
before the law should be observed. There are no compelling reasons for the
applicants to be treated differently from their co-accused. In S v Lotriet & Anor 2001 (2) ZLR 225
(H) BLACKIE J as he then was said:
"Notwithstanding the significance of
the other factors in this case, the applicants are entitled to bail. They are
so entitled because of two principles of fundamental importance: the right of
the individual to liberty and the perception that justice is evenly
administered. It is vital that in the administration of justice there does not
appear any form of discrimination, particularly in a matter where the liberty
of a person is involved. On the papers before me, neither of these principles
appears to have been adequately considered and both have been inadequately
observed".
I agree with the above.
In the result, I therefore believe that
it is in the interests of justice to render equal treatment to all the
co-accused persons.
The position further tilts in favour
of the applicants in that when released on 17 April 2009 to 20 April 2009, the
applicants did not abscond. The charges had not been withdrawn. They had ample
time to arrange their escape and indeed if, as alleged, this was a politically
motivated crime, there is a great possibility that their political sympathisers
would have willingly assisted them to escape. They did not escape. They adhered
to the conditions of bail that applied to them. That to me is a clear
demonstration that the applicants are good candidates for bail. The mere fact
of their good conduct after their temporary release, in my view, changes the
way this court should look at their application in the face of the opposition
from the respondent. Their conduct upon release and the apparent weakness in the
respondent's case leads me to the conclusion that they have discharged their
onus, on a balance of probabilities that they are good candidates for bail.
Their conduct upon temporary release has in my view, decimated the fears of the
respondent. The indictment cannot erase that good conduct.
Furthermore
the mere fact of the extension of bail for their co-accused after indictment,
operates in the applicants' favour. Their co-accused have not breached their
bail conditions and as would have been expected did not collude with the
applicants to commit further crimes upon the temporary release.
I am, in the main, generally in
agreement with the applicants that, apart from the alleged implicating confession from the first applicant, there is no direct evidence
linking the applicants to the offences. The confession is, however also denied.
Furthermore, the absence of independent witnesses throws a damp on the
respondent's evidence. All in all, the respondent is relying mainly on the
evidence of security personnel. There is
no evidence of a joint scheme/plan by the applicants, who in any case appear
not to have known each other until they appeared in court.
In view of the foregoing, I find the
applicants to be suitable candidates for bail. Having reached that decision, I
see no reason why they should not be released on the same conditions that HUNGWE
J. had granted them. They never breached those conditions upon their brief
release.
Accordingly, I order the grant of
bail as follows:
IT IS ORDERED THAT:
1.
The applicants be and are hereby granted bail
2.
The applicants shall each deposit USD 1000
with the Clerk of Court,
Harare Magistrates' Court as bail. If bail has been retained in terms of
this court's
order of 9 April 2009 such bail shall be considered adequate for the
purposes of this
order.
3.
The
applicants shall continue to reside at,
a. First Applicant-10 Sandy Lane, Ashdown Park,
Harare
b. Second Applicant- House No. 12, Rosedene Gardens,
Ashdown Park,
Harare
c. Third Applicant- 3 Ashmore Close,
Mabelreign, Harare
4.
The
applicants shall not interfere with witnesses or investigation.
5.
The
applicants shall report once a week on Fridays, between the hours of 6am and
6pm at Mabelreign Police Station until the matter is finalised.
Mbidzo Muchadehama
& Makoni,
applicants' legal practitioners
The
Attorney-General's Office,
respondent's legal practitioners