The
three respondents are being charged with contravening section 25(1)(b) as read
with section 25(2) of the Public Order and Security Act [Chapter 11:17] (POSA)
and contravening section 37(1)(b) of the Criminal Law Code [Chapter 9:23]. Alternatively, they are charged with
contravening section 33(2) of the Criminal Law Code [Chapter 9:23].
The
penalty for breaching section 25 of the Public Order and Security Act [Chapter
11:17] is a fine not exceeding level 12 or imprisonment for a period not
exceeding 1 year or both. The penalty for breaching section 37(1)(b) of the
Criminal Law Code [Chapter 9:23] is a fine not exceeding level 10 or
imprisonment for 5 years or both. That of contravening section 33 of the
Criminal Law Code [Chapter 9:23] is a fine not exceeding level 6 or
imprisonment for a period not exceeding 1 year or both.
The
respondents were arrested on 5 December 2011 when they presented themselves to
the police. They appeared on initial
remand at Gwanda Magistrates' Court on 7 December 2011 and were admitted to
bail. They were ordered to pay a bail deposit of US$50=.
Immediately
after being granted bail, the appellant invoked the provisions of section
121(1) of the Criminal Procedure and Evidence Act [Chapter 9:07] giving notice
of his intent to appeal to this court against the judgment of the Magistrates'
Court granting the respondents bail. That way, the appellant succeeded in
keeping the respondents in custody where they have remained until now.
Section
121 of the Criminal Procedure and Evidence Act [Chapter 9:07] provides:-
“1.
Subject to this section and to subsection (5) of section 44 of the High Court
Act [Chapter 7:06], where a judge or magistrate has admitted or refused to
admit a person to bail –
(a)
The Attorney General or his representative, within 7 days of the decision; or
(b)
The person concerned, at any time,
may
appeal against the admission or refusal or the amount fixed as bail or any
conditions imposed in connection therewith.
2.
...,.
3.
A decision by a judge or magistrate to admit a person to bail shall be
suspended if, immediately after the decision, the judge or magistrate is
notified that the Attorney General or his representative wishes to appeal
against the decision, and that decision shall thereupon be suspended and the
person shall remain in custody until –
(a)
If the Attorney General or his representative does not appeal in terms of
subsection (1) –
(i)
He notifies the judge or magistrate that he has decided not to pursue the
appeal; or
(ii)
The expiry of seven days, whichever is the sooner; or
(c)
If the Attorney General or his representative appeals in terms of subsection
(1), the appeal is determined.”
The
appellant noted an appeal to this court, as notified, on the following grounds:
“(a)
The court a quo erred in not giving sufficient weight to the fact that the
respondents know the source of the CDs in question. Their release would result
in further production and distribution of the material which is the foundation
of all 3 counts.
(b)
The court a quo erred by not imposing/attaching any other condition to the bail
thereby (sic) the respondents are at liberty to abscond, interfere with
witnesses and commit similar offences.”…,.
Following
a full hearing of the bail application, the court a quo reasoned as follows:-
“It
is trite law that where the State elects to oppose bail on the basis that the
bail applicant is a flight risk, then as with other grounds for opposing bail,
a bald assertion is not enough. The court was guided on this by Supreme Court
judgment in the case of State v Learnmore Jongwe 2002 (2) ZLR 209 (S). In terms of this judgment, the court has
considered the character of the charges against accuseds and the penalty
provision; will also consider the apparent strength of the State case. Clearly, up to now there is no evidence that
the accuseds are likely to run away and not stand trial. In other words, they
have not so far conducted themselves in such a way that it can be reasonably
concluded that should they be given bail they will try to run away and not
stand trial….,. The State alleges the accuseds may further distribute some CDs
if released on bail and that these CDs which have similar content to those in
question are in Harare. This is a mere suspicion by the State that since Accused
2 and 3 brought CDs to Gwanda from Harare there must be more where the others
came from. The police, in more than two weeks, have not made a single move to
recover them. The court would not accept this as a ground to refuse accuseds
bail.”
The
court a quo also considered the fact that the matter was brought for remand
after the police had “compiled a full docket; meaning all witnesses have had
statements recorded and the issue of them being interfered with by the accused
does not arise.”
I
have already made reference to the fact that the penalty for all the charges
preferred against the respondents is, first and foremost, a fine. It is trite
law that where a statute provides for a penalty of a fine, and an alternative
penalty of imprisonment, the sentencing court must give effect to the fine
first. Imprisonment is always reserved
for extremely serious breaches or repeat offenders – AG v Ndlovu & Ors
HB159-10…,. The above excerpt of the judgment of the court a quo shows that it
was alive to the penalty likely to be visited upon the respondents if
convicted. Surely, where a bail applicant is likely to be sentenced to a fine,
any risk of abscondment is completely non-existent.
The
first ground of appeal in the matter suggests that the appellant has an
apprehension that the respondents are likely to commit further offences if
granted bail. The court a quo considered that issue and concluded that it was
“a mere suspicion” not supported by fact. The appellant had an opportunity, at
the first instance, to lead evidence to sustain his apprehension that offences
may be committed in future. He did not take advantage of that opportunity,
contenting himself with placing reliance on the public prosecutor's unsubstantiated
“say so” from the bar. That did not find favour with the court which dismissed
the argument.
The
second ground of appeal, relating to the decision not to impose bail conditions
against interference with witnesses, is regrettably without merit either. The
court a quo took into account the fact that investigations had already been
completed and that there was no chance of interference whatsoever given that
statements had been recorded from witnesses. Submissions made before that court
to that effect were not challenged whatsoever by the prosecution. For that
reason, the findings of the court a quo were proper.
It has
not been shown that there was any misdirection on the part of the court a quo
in admitting the respondents to bail and in not imposing stringent conditions
to the bail. Quite to the contrary, the record of proceedings clearly
illustrates that the court a quo applied its mind sufficiently to all the
relevant factors and came to the conclusion that the respondent should be
admitted to US$50= bail and nothing more.
The
grounds of appeal which the appellant relies upon are spectacularly devoid of
merit.
Section
121 of the Criminal Procedure and Evidence Act [Chapter 9:07] gives the
appellant power to veto the grant of bail to an accused person.
It
accords the appellant a discretion to prevent the release of a person who has
been granted bail in situations where he intends to appeal that decision. To
the extent that it interferes with the liberty of a person who has been
admitted to bail, that discretion should be exercised judiciously because the
legislature, in its wisdom, entrusted the appellant with huge powers.
For
that reason, it is unacceptable for any representative of the Attorney General
to shoot up the moment bail is pronounced and invoke section 121 of the
Criminal Procedure and Evidence Act [Chapter 9:07] without applying his/her
mind to the basis for such invocation. I have said that there is no merit in
the grounds for appeal which do not show any misdirection at all on the part of
the court a quo. In fact, those grounds are legendary by their lack of merit. One
is therefore left wondering whether the appellant's representative did apply
his mind at all.
The
abuse of section 121 of the Criminal Procedure and Evidence Act [Chapter 9:07] to
keep persons in custody who have been granted bail has tended to bring the
administration of justice into disrepute.
It must be discouraged by all means and the time has come to announce to
law officers prosecuting on behalf of the Attorney General that section 121 of
the Criminal Procedure and Evidence Act [Chapter 9:07] should be invoked only
in those situations where there is merit in the appeal. Admitting a person to
bail is the judicial discretion of the magistrate or judge. An appeal court can
only interfere with that discretion where it is shown that there was a
misdirection or that the discretion was exercised injudiciously. Whichever way,
persons who have been properly granted bail should not be kept longer in
custody merely as a way of punishment. That is an improper exercise of the
discretion given to the Attorney General by section 121 of the Criminal
Procedure and Evidence Act [Chapter 9:07].
In
the present case, even if the respondents are convicted, they are likely to be
visited with a fine. Therefore, the
seriousness of the offence or lack of it, leads to the conclusion that a
moderate bail deposit is called for. This is what the court a quo ordered, and,
in my view, there is absolutely nothing wrong with that.
Accordingly,
I order as follows; that:
1.
The appeal be and is hereby dismissed.
2.
The decision of the magistrate to grant the 3 respondents bail pending trial in
the sum of US$50= stands.
3. The
said US$50= should be deposited by the respondents to the Assistant Registrar
of the High Court, Bulawayo.
