CHEDA
AJ: This is an application for bail pending appeal by an accused
person who was convicted for fraud as defined in section 136 of the Criminal
law (Codification and Reform) Act [Chapter 9:23], and sentenced to 5 years
imprisonment of which 3 years were suspended on condition he makes restitution
to Mpilo Hospital in the sum of R200 000 through the Clerk of Court, Bulawayo.
The applicant has noted an appeal against both conviction and sentence.
The applicant is employed by the Ministry of Health as a Chief Medical
Equipment Technician at Mpilo Hospital.
He is alleged to have inflated a quotation of R48 000,00 to read R248 000,00
prejudicing Mpilo Hospital in the sum of R200
000,00. He was charged together
with another person who was acquitted.
In his application for bail pending appeal he says he is suitable for bail as
he is of fixed abode, is 45 years old and married and while he was on remand he
observed each and every day of the remand date and reporting conditions.
He has nothing that can induce him to abscond. Applicant says he has
prospects of success in that central to the crime of fraud is the element of
prejudice which was not proved in this case. He said everything that was
done concerning the tender in question was captured by the Secretary of the
tender Committee in the form of hand written minutes. He said if the
minutes were produced they would exonerate him and that the tender that was won
was based on the lowest quotation based on the wrong specification of the
equipment ordered. The correct equipment was subsequently quoted at R248
000,00. He said the minutes would show that the hospital did not suffer
any prejudice and that he did not make any misrepresentation.
However, the minutes concerned were not produced by the prosecution despite his
raising of the issue.
Both witnesses, Regina Moyo and the auditor conceded that the minutes were
crucial as the best evidence on the issue, but the minutes were not
produced. The auditor was adamant that the minutes be made available to
determine what happened, but they were not made available.
Another witnesses also confirmed that the equipment that was actually ordered
and delivered was the larger one that costs R248 000,00 and not the smaller one
which had been quotated at R48 000,00.
Miss Munyeriwa, for the respondent conceded that the minutes should have
been made available.
The applicant submitted that on that ground he has good prospects of success on
appeal. I agree.
The applicant was clearly deprived of the availability of evidence that could
have possibly exonerated him.
The application for bail pending appeal succeeds.
- The applicant is granted bail
in the sum of $100,00 to be deposited with the Assistant Registrar of High
Court, Bulawayo.
- The applicant is ordered to
continue to reside at number 72313 Lobengula West, Bulawayo until the
finalization of this matter.
Mhiribidi & Company,
applicant's legal practitioners
Criminal Division of the Attorney General's
Office, respondent's
legal practitioners
