The
applicants are applying for bail pending trial.
The
applicants are jointly charged with aggravated robbery as defined in section
126 of the Criminal Law (Codification and Reform) Act [Chapter 9:23].
The
allegations are that the applicants, together with two other persons still at
large, went to the complainant's residence at Khayalethu Hampden Plot E,
Gwanda. They were armed with pistols. They proceeded to rob the complainant,
one John Dicey, of ZAR90,000= cash, jewellery, and over two kilograms of gold
valued at US$100,000=.
The
respondent is opposing the granting of bail to all the applicants. The
opposition is premised on two grounds, viz;
(a)
Likelihood of abscondment; and
(b)
Likelihood of commission of similar offences.
The
Investigating Officer, Detective Sergeant Mpunzi, testified in support of the
respondent's case. The applicants did not give viva voce evidence but were
content with their written statements filed in support of the application….,.
On
the likelihood of abscondment, the offence charged here is very serious, and,
upon conviction, is likely to attract severe punishment – S v Ndlovu 2001 (2)
ZLR 261 (H) and S v Biti 2002 (1) ZLR 115 (H). Even without the extra curial
statements, there is evidence of the identification parade, and the recovered
getaway Toyota Hilux motor vehicle, linking the applicants with the offence.
With such calibre of evidence in support of the respondent's case the
expectation of a substantial custodial sentence upon conviction provides an
incentive for the applicants to abscond – S v Lulane & Anor 1976 (2) SA 204
(N).
The
next question is the risk of commission of further crimes.
It
is trite that bail is non-penal in character, but in bail applications, the
court is empowered to refuse bail in instances where it considers it likely
that if the applicant is admitted to bail he would commit an offence – see
section 116(7) of the Criminal Procedure and Evidence Act [Chapter 9:07] and
Attorney-General v Phiri 1987 (2) ZLR 33 (H)…,.
In
casu, the applicants were not acting alone, but in association with others
still at large. The outstanding accomplices are said to be armed. Such an
association with others who are still at large is a relevant factor in this
application – S v Vankathathnam & Ors 1972 (2) PH, H 139 (N) and S v Biti
2002 (1) ZLR 115 (H)…,.
Looking
at the totality of the above facts, I am of the view that the applicants failed
to show, on a balance of
probabilities, that if admitted to bail they will-
(a)
Not abscond; and/or
(b)
Commit further crimes.
Based on the facts placed before me, the
applicants are not suitable candidates for bail. Their application for bail is
dismissed.
