BHUNU J: I have deliberately consolidated both bail
applications because they are related and interlinked. In case number 309/13
the first appellant Thabani Mpofu is jointly charged with Felix Matsinde,
Warship Dumba and Methuli Tshuma with contravening s 4 (3) of the
official Secrets Act [Cap.11: 09], Contravening s 179 (1) of the
Criminal Law (Codification and Reform) Act [Cap:9:23] and s 40 (1) of
the same Act. The offences have to do with the unlawful communication of
certain official Information and possession of certain articles for criminal
use.
The first appellant is facing two separate counts under the
Fire Arms Act [Cap. 10:09] involving failure to renew his firearm
licence and to secure the fire arm. These offences were discovered during a
search at his premises in connection with the first count.
The appellants are to some extent well known members of the
public. The first appellant Thabani Mpofu is employed as a Principal Director
in the Prime Minister's office based at 14 Bath Road, Belgravia.
The second appellant, Felix Matsinde is also employed in
the Prime Minister's Office as a researcher at the same address. The same
applies to the third appellant Warship Dumba.
The fourth appellant is a law officer in the Attorney
General's office but is currently on suspension.
All the 4 accused persons applied for bail without success
in the Magistrates Court. In both cases the Magistrate after hearing both
applications denied all the appellants bail in the most cursory and perfunctory
manner. In the first case this is all what the presiding magistrate had to say
in denying the accused bail?
“Court rules that accused has the
propensity to commit similar offence since he's once convicted of the offence.
A fire arm is a danger to public safety and State security and can't be traced
if not renewed or can be abused by other people with criminal intent
That the gun was taken by police
doesn't stop accused if released on bail to further secure another gun and
commit similar offences.
Accordingly accused is not a good
candidate of bail and bail application is dismissed.”
With respect the magistrate's line of reasoning appears
rather illogical and inconsistent with common sense and reality. It seems to me
strange logic to suggest that a fire arm cannot be traced simply because the
licence has not been renewed. It also makes strange reasoning to say that the
appellant has a propensity of not renewing his firearm licence to the extent
that even if he has been dispossessed of the firearm if released on bail he
will acquire another one for the sole purpose of not renewing the licence. If
that line of reasoning is pursued to its logical conclusion, then, the
appellant will never be released from prison. In saying so the Magistrate was
totally oblivious to the fact that the State is in total control of the
issuance of firearm licences. The State could easily deny him a licence or the
court could bar him from acquiring a firearm licence for a specified period.
It is therefore self evident that in denying the appellant
bail the presiding magistrate misdirected herself in some material respect.
Turning to the other charges the magistrate again gave
truncated scanty reasons for denying the appellants bail without laying the
factual basis for her decision. In her ruling this is what she had to say”
“Court rules that accused are
facing serious offences which interfere with public safety and State security.
There is a likelihood that if granted bail they can interfere with
investigations and or witnesses. The likelihood of absconding Court is high
considering the seriousness of the offence. For these reasons Court denies all
the accused bail.”
Detention pending trial amounts to administrative detention
rather than penal detention. It is therefore of utmost importance for judicial
officers to always bear in mind that the presumption of innocence still
operates in favour of the accused at every stage of the proceedings before
conviction. Thus the arrest and detention of an accused person may constitute a
serious infringement of his right to freedom should it turn out that he was
innocent after all.
That is however, not to say that undeserving accused
persons should not be denied bail. Judicial officers should by all means deny
undeserving applicants bail. The tragedy is however that there is no magic want
for determining who is guilty or innocent at this critical bail application
stage, hence the development of crucial guidelines developed over the years by
our Superior Courts.
It is needless to say that judicial officers are duty bound to meticulously
observe laid down judicial safeguards propounded through the cases so as to
avoid straying into the wilderness of injustice. A casual perusal of the magistrate's
handling of both matters betrays scant regard to the guiding principles laid
down by the Supreme Court and this Court.
The presiding judicial officer is duty bound to give cogent well reasoned basis
for his decision. The absence of such reasons needlessly creates a situation of
impunity and insecurity even where the ultimate decision may be correct.
Failure to adhere to laid down procedures and guidelines in determining bail
applications may provide an escape route for unsuitable candidates on the basis
of fundamental misdirection.
Had the magistrate looked at the judicial safeguards laid
down in the leading cases of S vHussey 1991 (2) ZLR 187 (SC)
andS vMaharaj 1976 (3) SA 205she would undoubtedly
have realised the need to back up her conclusions by cogent findings of fact.
This she did not do resulting in a serious misdirection and a travesty of
justice. That being the case this Court is at large to determine the matter on
the merits.
As I have already pointed out all the appellants are well
known public figures who really have nowhere to hide in this country save to
skip our borders. Though our borders have been held to be porous our police
force has a proven track record of tracking and apprehending fugitives from
justice as amply demonstrated in the legendary cases ofMasendeke andChidumo.
The nature of the offences charged and the attendant penalties providing the
option of a fine are unlikely to provide sufficient incentive for the
appellants who are of fixed aboard and have firm roots in this country to
abscond.
I am therefore of the firm view that granting the
appellants bail with stringent conditions will meet the justice of the case.
The draft orders filed in respect of each case are sufficient to ensure that
the ends of justice are not compromised. Each appellant is accordingly granted
bail in terms of the draft orders filed of record.
Mbidzo Muchadehama and Makoni,appellants' legal
practitioners
The Attorney-General's Office, respondent's
legal practitioners
