MATHONSI J: The
1st Respondent is facing 2 charges.
The 1st one is contravening Section 33(2)(b) of the Criminal
Law Code, Chapter 9:23. The 2nd
one is contravening Section 36(1)(b) of the Immigration Act, chapter 4:02.
He was arrested in
Gwanda on 13 January 2011 and arraigned before a magistrate in that town on 17
January 2011 and remanded in custody. On
26 January 2011 he made an application for bail pending trial arguing that he
was a good candidate for bail especially in light of the fact that in terms of Section 34 of
the Criminal Law Code, he could not be prosecuted without authority being
granted by the Attorney General. That
authority had not been sought and the AG's office in Bulawayo had intimated
that it would be several months before the matter is considered by the AG.
In addition to that, it
was submitted on 1st Respondent's behalf that the offences that he
was facing were not serious and that even if he was convicted he would be
sentenced to a fine. For that reason
there was no incentive for abscondment.
In respect of the 2nd
charge under the Immigration Act, it was revealed to the Court that the
Immigration Department had already dealt with the matter and fined the 1st
Respondent for over staying his welcome before extending his stay by a further
30 days (page 7 of the record). That being the case, the 1st
Respondent was now legally in the country and the 2nd charge would
naturally fall off as he could not be prosecuted twice for the same offence.
In opposition to the
bail application, the state was unbelievably brief. This is what public prosecutor Dube had to
say:
'' The state is opposed to
bail. Accused is a foreigner. Even if stringent conditions are put in place
there is no guarantee that the accused will remain in the country. Also we do not have the local address of the
accused. We only have his SA
address. That the process of getting the
consent is a long one, it may take some months before we get. Thats all.''
The magistrate was not
impressed by the opposition and concluded that the interests of justice demand
that the 1st Respondent be granted bail. He reasoned that it did not make sense that
the accused person be kept in custody pending the decision of the Attorney
General whether to prosecute or not. He
was of the view that at the end of the day the AG may well decide not to
prosecute in which case, the accused would have been in custody for a lengthy
period for no reason. In saying that he
was obviously fortified by the concession made by the state that the process
was a long one. He was therefore
surprised that the state was opposed to bail even against that back ground.
The magistrate also
went on to conclude that it was never the intention of the legislature to keep
accused persons in custody awaiting the decision of the AG whether or not to
prosecute.
He considered the
argument by the state that the accused will abscond and rejected it because the
state had not shown ''why it says accused will slip back to his country and
will not come back to stand trial if released on bail'' (page 14)
The state has now appealed
against the decision to admit the 1st Respondent to bail on the
following grounds:
''(i) The learned Magistrate
erred in not taking into account that the Respondent is a South African
National who has no ties to the country.
(ii) The Learned Magistrate
erred in failing to appreciate that the above reason could be enough inducement
for the Respondent to abscond.''
Essentially
therefore this is one ground of appeal, i.e that because the 1st
Respondent is a foreigner that affords him an opportunity to abscond. No evidence was submitted to establish the
claim that the 1st Respondent was a flight risk even as he faces
charges where he is unlikely to be incarcerated if convicted. I totally agree with the magistrate that the
state has failed to establish this claim.
Section
34 of the Criminal Law Code provides:
''No proceedings shall be
instituted or continued against any person in respect of a crime in terms of
this Chapter, other than proceedings in respect of the crime of possessing a
dangerous weapon or unlawfully possessing or wearing a camouflage uniform or
for the purposes of remand, without the authority of the Attorney
General.''
Clearly
no further action in this matter can be taken until the AG has given
authority. This, together with the
admission that the AG takes several months to consider such matters means that
the 1st Respondent may be kept in prison for a long time. In my view this was a very relevant consideration
in determining whether or not to grant bail.
I do
not agree that there was any misdirection whatsoever on the part of the
magistrate. He properly exercised his
discretion in favour of the 1st Respondent.
I
therefore come to the conclusion that this appeal is completely devoid of
merit. Accordingly it is hereby
dismissed.
R. Ndlovu & Company, Appellant's Legal Practitioners
Criminal Division, Attorney
General's office, Respondent's legal practitioners
