MATHONSI J: The four Applicants, along with a juvenile
Claytose Moyo were convicted of 1 count of stocktheft by the magistrates' court
of Kwekwe on the 14th August 2009.
The four of them were sentenced to an effective 13 years imprisonment
after the court found no special circumstances in the matter.
Prior
to that, on the 18th May 2009 the second Applicant, along with two
others namely
George Masunda
and Melusi Shepherd Mukwananzi, had been convicted of another count of
stocktheft and sentenced to an effective 10 years imprisonment. That case came before me as a bail
application pending appeal under case No. HCB 131/09.
On
the 27th May 2009 again the same magistrates Court convicted second,
third and fourth Applicant of stocktheft and sentenced them to the mandatory 9
years imprisonment after finding no special circumstances. In that case they were jointly charged with George
Masunda, a police officer and Melusi Shepherd Mukwananzi. That matter came before this court as a bail
application pending appeal under case no.
HCB 130/09.
In the case before me, the Applicants are
alleged to have stolen an ox and a bull from Bonaccord grazing lands which
belonged to Trust Mapiye on the 20th February 2009. They allegedly drove the animals to Zetfan
Farm in Redcliff where they slaughtered and skinned them before hiring someone
to ferry the meat to Shoppers Butchery in Redcliff where it was cut into pieces
for sale.
The
first Applicant is a constable in the Zimbabwe Republic Police and at the
material time he was stationed at Redcliff police station. The rest of the Applicants are unemployed
members of the same family.
State
witness Blessing Mutende, who ferried the meat of one of the slaughtered beasts
to Shoppers Butchery in Redcliff placed all the Applicants at the scene of the
crime and his evidence was virtually unchallenged in its entirely. According to this witness he knows all the
Applicants well. He was approached by
first and second Applicants who requested him to ferry
their meat
from some farm to Redcliff. He proceeded
with first and second Applicants to the place where he then met the third and
fourth Applicants together with Claytose Moyo who was the fifth accused at the
trial. The latter three loaded the meat
into his vehicle and when they did so they were collecting it from some
distance using a footpath.
The
meat was conveyed to Shoppers Butchery in Redcliff where it was cut into pieces
by Musa Dondo who also testified in court corroborating the testimony of
Mutende. Dondo added that within a period of two weeks
the Applicants had brought two beasts for cutting. Another state witness, Trust Mapiye testified
to the effect that the hide of one of his beasts had been found at the scene
where the Applicants had loaded the meat onto Mutende's vehicle.
The
Applicant's defence that the beast belonged to their father who had sold it to
one Khumalo of South Africa and that they only facilitated the slaughter and
cutting of the meat suffered a stillbirth when they could not produce their
father to substantiate their claims. No
meaningful explanation was proffered for their inability to do so and the court
was at large to draw adverse inferences against them.
In
all circumstance, the evidence against the Applicants is very strong. In an application of this nature, the court
must have regard, in the main, to the seriousness of the offence for which an
applicant for bail stands convicted, the gravity of the penalty imposed and the
prospects of success of the appeal in determining the possibility of prejudice
to the administration of justice.
Ultimately the court will lean in favour of liberty where this will not
endanger the
interests of the administration of justice. S v Williams 1980 ZLR 466 (A).
In
the case before me the Applicants have been convicted of a serious offence
which carries a minimum mandatory sentence of 9 years. No special circumstances were found as would
point to a lighter sentence. They have
been sentenced to a lengthy term of incarceration and they have extremely dim
prospects of success on the merits of the appeal. For these reasons the motivation for
abscondment in order to evade justice is very high. This is especially so when all this is
considered against the backdrop of the other convictions and sentences meted
against second, third and fourth Applicants.
I
am not satisfied that the administration of justice will not be prejudiced by
the admission of the Applicants to bail pending appeal.
Mr. Makonese
who appeared for all the Applicants asked that the application of the fourth
Applicant Tawanda Matonzi be treated differently for medical reasons. Although he did not have a medical certificate
to back him up, he submitted that the said Applicant was very ill and his
condition had deteriorated badly. In
response Mr. Hove for the Respondent
requested to be given an opportunity to investigate fourth Applicant's
condition as the state's attitude to his application would be different if that
is verified.
Mr. Hove has since
submitted a letter dated 29th June 2010 which reads as follows:-
“The Attorney-Genral's Office
Tredgold Building
3rd
Floor, Office 311B
Bulawayo
29th of
June 2010
The Registrar
High Court of
Zimbabwe
Bulawayo
REF: BAIL
PENDING APPEAL: HCB 132/09 JUSTICE MATSIKA AND THREE OTHERS.
The above subject matter
refers. The defence for the applicants
in the above matter indicated to both the state and the Judge during the bail
hearing on the 29th instant that one of the applicants, namely
Tawanda Matonzi is very 'sick'. The
state was called upon to indicate its attitude towards the granting of bail in
respect of the applicant. The state
indicated that it could change its attitude if indeed applicant is 'sick'. To that end, the state was tasked by the
court to verify applicant's claim. The
state has made frantic efforts to locate the Officer in Charge Kwekwe Prison,
to no avail. Consequently, the state has
failed to verify applicant's claim that he is very 'sick'. In the absence of confirmatory information
from the medical personnel at Kwekwe Prison that applicant is indeed 'sick',
the state is left with no option, but to maintain its stance that applicant is
not a proper candidate for bail, hence bail should be denied.
(Signed)
T. Hove
Attorney General's
Office
Bulawayo”
What
I am left with therefore is the submission by Mr Makonese that the fourth Applicant is critically ill which has
not been refuted and the Respondent's position that if this were true, it would
consent to bail. I have no reason to
disbelieve counsel for the Applicants and for that reason I would grant the
fourth Applicant bail.
In the result, it is ordered that:-
1. The application for bail
by the first, second and third Applicants be and is hereby dismissed.
2. The fourth Applicant
(Tawanda Matonzi) be and is hereby granted bail pending appeal on conditions:-
2.1 He deposits the sum of
US$50-00 with the Clerk of Court, Kwekwe Magistrates Court.
2.2 He
resides at House Number C145 Torwood, Redcliff until the appeal is finalised
2.3 He reports once very fortnight at
Zimbabwe Republic Police Redcliff between
6am and
6pm.
Mathonsi
J............................................................................
Makonese and Partners, applicants' legal
practitioners
Criminal Division, Attorney
General's Office, respondent's legal practitioners
