CHEDA J: This is an
application for bail.
Applicant is being charged with armed robbery that allegedly occurred on
the 13th February 2009 at the 60km peg along Beitbridge-Masvingo
Highway . It is alleged that with the
use of violence he induced the complainant to part with his property being:
(1) 1100 Nokia mobile phone
(2) motorolla C157 phone
(3) net one sim card, and
(4) cash amounting to R14
600.
Respondent has opposed this
application on the ground that he is likely to absond and relied on the provisions
of section 117 (3) (b) of the Criminal Procedure and Evidence Act [Chapter
9:07]. Under the said section the
following factors have to be considered in the determination of bail:
(i) the ties of the accused to the place of
trial
(ii) the accused's means of travel and
his/her possession of or access to travel documents
(iii) the nature and gravity of the likely
penalty therefore.
To buttress this, Mr Hove for
respondent has argued that applicant resides and works in South Africa and has
been there for the past 12 years. In
addition, thereto, he is a holder of a valid passport. Above all he is facing a serious charge.
Applicant on the other hand has
argued that he is innocent of the charge being levelled against him in that he
has never used the Beitbridge –Masvingo road on all the occasions he visited
Zimbabwe. He further pointed out, two
major discrepancies in the whole matter in that:
Firstly,
the state outline refer to a VW Jelta, red in colour yet the complainant refers
to a VW Golf red in colour. The question
is what is the exact car applicant was allegedly using. These are distinctively two different makers
of motor vehicles except for the colour.
Therefore, there is, a material discrepancy in this description.
Secondly he contends that the
identity parade which was conducted was not properly carried out as he was
brought to the charge office barefooted and was asked to put on his shoes in
the presence of the complainant, a procedure which is unusual as it exposed him
to the complainant who no doubt regarded him as the accused and therefore
proceeded to identify him as such.
These allegations and arguments were
not controverted by Mr Hove who stated that he had been unable to verify them
with the investigating officer. He did
not even ask for indulgence to verify them.
If it is true that the identification parade was conducted in the manner
described, it is, but, a mockery of justice.
It should be noted that an identification parade is a procedure where a
complainant or witness should independently identify the suspect or the wrong
doer without being given a clue which is designed to expedite police
investigations. I am not saying that it
was the case in casu, but, my emphasis is that identification parades should
be conducted in a manner that exclude the possibility of any suspicion of bias
or unfairness. Where an identification
of a suspect has been made easier by a police officer's conduct, conscious or
otherwise, our courts should be ready to condemn such proceedings without more. In casu, what occurred in this case
can not pass the test of an identification parade. There should be fairness in the process,
where fairness is absent the possibility of bias can not be excluded, see R v Masemang 1950 (2) SA 488 (A.D) and R v Y and another 1959 (2) SA 116.
Great care should be employed when
identifying a suspect. In S v Ndhlovu and Others 1985 (2) ZLR 261
(SC) GUBBAY JA (as he then was at 263 G stated:
“Confidence and
sincerity are not enough. The
possibility of a mistake occurring in the identification, especially where the
witness has not known the person previously, demands that the great
circumspection should be employed.”
Probative value of personal
identification at a parade conducted in a manner which does not guarantee
fairness required by the standard form of procedure for such proceedings
carries less weight as it would have been calculated to prejudice applicant,
see R v Masemang (supra).
The other factor relied on by
respondent is that applicant is likely to abscond as he is a South African
resident. While this may be a
possibility the question of absoncdment should be looked at very carefully as it
can result in a suspect failing to attend court which can no doubt frustrate
the otherwise proper administration of justice.
Where a suspect is facing a serious
charge, which upon conviction is likely to be sentenced to a lengthy prison
term, the temptation to abscond is quite high.
This is the general approach, see S
v Nichas 1977 (1) SA 257 (C). This, however,
does not mean that bail should not be granted in a serious case, see R v Mtatsala and another 1948 (2) SA 585. The seriousness of the charge must be taken
into account with regards to other factors.
The strength or weakness of the state case is one such factor. Where the state case is weak, bail should be
considered, as failure to do so will be prejudicial to the accused. In casu as already pointed out the
identification parade is alleged to have been irregular. If this is proved to be true, that will dent
the state case. Therefore, if it is
correct, the possibility of applicant absconding to avoid trial is remote as he
will be eager to clear his name. In
an application for bail applicant must prove on a balance of probabilities that
there are facts rendering it unlikely that he will abscond or otherwise
interfere with the proper administration of justice, see Leibman v Attorney General 1950 (1) to 607. The factors to be considered in the
determination of bail where a question of abscondment arises were in succinctly
dealt with in Aitken and another v
Attorney General 1992 (1) ZLR 249, quoted with approval in S v Jongwe 2002 (2) ZLR 209 (H) at page
215 B-D where CHIDYAUSIKU CJ stated:
“b That in judging the risk that an accused
person would abscond the court should be guided by the following factors:
(i) the nature of the charge and the
severity of the punishment likely to be imposed on the accused upon conviction;
(ii) the
apparent strength or weaknesses of the State case;
(iii) the accused's ability to reach another
country and the absence of
extradition
facilities from the other countries;
(iv) the
accused's previous behaviour;
(v) the credibility of the accused's own
assurance of his intention and
motivation
to remain and stand trial;
d That the risk of interference with
investigation if alleged must be well founded and not based on unsubstantiated
allegation and suspicion.”
Applicant's averments that he has
never used the Beitbridge-Masvingo road and that the identification parade was
irregular which has not been controverted render, the state's case weak,
thereby eliminating the incentive for him to abscond from the court's
jurisdiction. Applicant is a Zimbabwean based in South Africa, has a good and
responsible job. In addition to this,
applicant voluntarily went to the police station to seek clarification as to why
his car had been embargoed; this to me is not the behaviour of a guilty
mind. This factor can not be ignored, see
S v Jongwe (supra).
It is a fact that there exists an
extradition order between Zimbabwe and South Africa which make it possible to
bring applicant back to the country should he decides to abscond.
I am, therefore, of the view that,
applicant has made a good case for himself for bail and accordingly the
following order is made:-
Order
Applicant
be and is hereby granted bail on the following conditions that:
(i) he deposits US$200-00 with the office
of the Registrar, High Court, Bulawayo.
(ii) he surrenders his travel documents with
the Registrar's Office, High Court, Bulawayo.
(iii) he
reports three times a week on Mondays, Wednesday and Fridays at Zimbabwe
Republic Police, Nkulumane, Bulawayo between the hours of 6am and 6pm.
(iv) he resides at house number 108 Nkulumane,
Bulawayo until the trial is finalised.
(v) he does not interfere with state
witnesses, and
(vi) he
surrenders the Title Deed of house number 1378 Mbizo Township, Kwekwe, being Title
Deed number 1546/87 to the office of the Registrar, High Court, Bulawayo.
Cheda and partners, applicant's legal
practitioners
Criminal Division, Attorney
General's office, respondent's legal practitioners
