MAKONESE J: The
applicant is facing a charge of contravening section 47 of the Criminal Law
Codification and Reform Act [Chapter 9:23], murder. The allegations are
that on the 11th December 2012 and at Stephen Runeta's homestead, at
Nkayi around 2000 hours, the applicant proceeded to the deceased's home armed
with a spear. Upon arrival applicant forced open the door to the
deceased's bedroom. The deceased was asleep at the time. The
applicant then struck the deceased once on the lower side of the left breast
with a spear. He struck the deceased twice on the lower side of the right
ear twice with a claw hummer. The deceased died instantly as a result of
the injuries sustained. The applicant fled the scene.
The applicant now seeks bail pending trial and has urged
the court to accept that he is a suitable candidate for bail. He argues
that he will not abscond and will stand trial.
The agreed facts, however show that the applicant was
arrested by Constable Gondo and other police detectives in Gwanda aboard a
South African bound Toyota Quantum omnibus. Applicant had paid the driver
the sum of R1400 to be transported to South Africa. Had it not been for
an informer who told the police that the applicant was on his way out of the
country the applicant would have succeeded in fleeing into neighbouring South
Africa.
The Investigating officer Maimbo Shingirayi Givemore swore
to an affidavit opposing bail in which he stated as follows:
“5.
Accused was later arrested in Gwanda by Police officers from Zimbabwe Republic
Police (ZRP) Pumula, Bulawayo on the 27th December 2012. I
send him to court in Nkayi Magistrates Court (sic).
6. I
now oppose bail because of the following reasons:
(i)
The accused person is a flight risk. He was arrested in Gwanda abode a
cross-border operator vehicle by Police officers from Zimbabwe Republic Police
Pumula in Bulawayo. (See copy marked annexure 1, the Statement from the
arresting detail).
(ii)
The accused person already interfered with witnesses as he severely assaulted
MILIA NCUBE mother to the deceased, using a hammer soon after committing the
murder.
(iii)
The accused is already serving at Nkayi Prison for the assault case on MILIA
NCUBE. ZRP Gwelutshena C.R 13/12/12 and Nkayi Magistrates Court CRB 77/03
refers. (See copy marked annexure 2, proof of conviction from Nkayi
Magistrates Court.”
Mr Chigomere who appeared for the Applicant did
not dispute that the applicant was arrested by police detectives on his way to
South Africa. He was in fact absconding and leaving the country. He
demonstrated that he has the capacity to flee the jurisdiction of these courts
in order to avoid trial. The fact that he was apprehended is obviously a
result of the swift action taken by the police who managed to track down the
Applicant before he could make good his escape. It is now, trite in matters
of bail, that where the applicant has actually shown a willingness and
determination to abscond then the courts will be slow to grant let alone
consider bail pending trial. There is no evidence before the court that
the applicant's desire to abscond has now somehow evaporated. No cogent
reasons have been advanced before the court to show that the applicant will now
want to stand trial and not attempt to abscond. I do not consider that
any stringent reporting conditions would safeguard the interests of
justice. The applicant is facing serious allegations of murder and the
propensity to abscond is real under the circumstances.
I have been asked to disregard the fact that applicant is
already serving at Nkayi prison for an assault he inflicted upon the deceased's
mother, one Milia Ncube. It has been argued that the assault took place
on the same date of the murder and is therefore one criminal transaction.
In my view the accused's conduct only goes to strengthen the view that accused
person is of violent disposition. That factor alone would not have
persuaded me to deny the applicant bail pending trial, but that factor taken
into conjunction with the accused's attempt to abscond makes him an
unsuitable candidate for bail.
The police have made credible allegations that the
applicant was arrested on his way to South Africa. The onus is
upon the applicant to prove a balance of probabilities that good grounds exist
for him to be granted bail pending trial. See S v Ndhlovu
2000(1) ZLR 261.
I am satisfied that the applicant has failed to advance any
good grounds on a balance of probabilities to establish that if admitted to
bail he will not attempt to evade the consequences of the law by absconding.
In the result, and for the above reasons I make the
following order:
(1) The
application for bail is hereby dismissed.
Mutatu and partners,
applicant's legal practitioners
Criminal
Division, Attorney General's Office,respondent's
legal practitioners
