MATHONSI J: This is an application for bail pending
trial which was only filed on 3 August 2011 when the applicant and his 3
co-accused were arrested in May 2010.
The applicant had not applied for bail until now.
The applicant and his co-accused are
facing a charge of armed robbery the allegations being that on 27 March 2010
himself, Bekezela Lizile Moyo, Everton Khupe and Mandlenkosi Gumisayi committed
a robbery at No. 6 Wallasey Road Donnington Bulawayo using a licenced firearm
belonging to the applicant.
They were all arrested in Harare
about two months later leading to the recovery of some of the stolen
property. The applicant has remained in
custody awaiting trial since that time.
The main thrust of the argument made by Mr Ndlovu for the applicant is that one of the applicant's
co-accused Bekezela Lizile Moyo was admitted to bail on 12 April 2011 and as
such the applicant should be treated the same as his co-accused. Mr
Ndlovu further submitted that it is undesirable to treat co-accused persons
differently when they are facing the same charge.
Mr Hove for
the state, argued that when the court granted Bekezela Lizile Moyo bail it had
been swayed by the fact that the state could not give a trial date and their
co-accused persons had been transferred to Harare to stand trial on other
charges. Their date of return to
Bulawayo was unknown and for that reason the justice of the case demanded that
Moyo be admitted to bail.
Mr Hove
further argued that the applicant's situation is different in that the trial of
his co-accused in Harare has been completed, they have been returned to
Bulawayo and trial dates, being the 13th and 14th
September 2011, have been set for the trial of the applicant and his
co-accused.
When Bekezela Lizile Moyo first
applied for bail in August 2010, I had denied him bail and the reasons for
doing so appear in my judgment in Moyo v
S HB 88/10. He filed a fresh
application citing a change of circumstances, which I heard on 12 April
2011. In granting him bail I stated as
follows:
“This matter came before me as an application for bail in
August 2010. During that hearing the
state opposed bail inter alia on the basis that investigations
were complete and the matter was to be allocated a trial date in a short
while. In refusing the Applicant bail
then I had been swayed by the fact that a trial date was imminent and that the
applicant needed to concentrate on that in order to prove his innocence. Regrettably, more than 7 months have lapsed
since the last bail hearing and not only has the state failed to set the matter
down for trial, it has also taken the applicant's co-accused to Harare making
the possibility of a trial even more unlikely.
This is particularly so, as Mr
Ndlovu for the state has pointed out, that his office is not aware why the
co-accused have been taken to Harare and when they are likely to come
back. In my view the lapse of time, in
this case 7 months, and the patent inability of the state to point to when the
applicant is likely to stand trial, amounts to fresh facts which are favourable
to the applicant and militate in favour of his admission to bail.”
The present case is distinguishable
from Moyo (supra) in many ways the most important one being that the
applicant has approached the court seeking bail for the first time when a trial
date has been set. Indeed his trial is
only three weeks away. Surely one would
expect him to be focusing on proving his innocence at the trial instead of
fighting for bail, a fight he shied away from since his arrest more than a year
ago. The other factor is that the state
case against the applicant is much stronger than that against Bekezela Lizile
Moyo. While the only thing linking Moyo
to the robbery, other than the confessions, appears to be the telephone call he
made to the complainant hours before the robbery, the applicant's weapon, a
star pistol, was allegedly used in the robbery.
The same firearm, though licenced, was allegedly recovered hidden in the
ceiling, a curious place to keep a firearm, of a house in Harare where the
applicant did not even stay.
The present inquiry involves striking
a balance between the liberty of the individual and the administration of
justice. Where there is strong evidence
linking the applicant for bail with the commission of the offence and it is
likely that upon conviction the applicant will be sentenced to a lengthy term
of incarceration, the risk of abscondment is high. S v Jongwe 2002 (2) ZLR 209(S).
I am apprehensive that if granted
bail the applicant will not stand trial.
This is particularly so considering that this application has come rather
late in the day when a trial date has already been set. It may well be that realizing that the day of
reckoning is nigh, the applicant wants to evade justice.
In the premises, the application is
dismissed.
R. Ndlovu and company, applicant's legal practitioners
Criminal Division, Attorney General's Office,
respondent's legal practitioners
