MAKONESE
J: The applicant is facing a charge of murder. The brief facts are that on 10 September 2015
and at Hwange the applicant stabbed his estranged wife Sithembile Luphahla
three times with a kitchen knife on the shoulder and back following suspicions
that deceased was having an extra-marital affair with another man. The applicant does not deny that he caused
the death of the deceased. He states
that he had an altercation with his wife whom he loved dearly. He acted out of anger and regrets his
actions.
The applicant's legal
counsel has passionately argued for the release of the applicant on bail
pending trial. It is contended that the
court should lean in favour of the liberty of the applicant to protect his
fundamental freedom to liberty.
In his opposition to the
granting of bail, the Investigation Officer raised four primary grounds for
opposing bail, viz;
a) The
accused is likely to abscond considering the gravity of the case
b) The
accused is not permanently employed and right abscond
c) The accused is likely to commit another
crime as he now knows the identity deceased's boyfriend.
In
considering the application for bail I am mindful of the provisions of section
117(1) of the Criminal Procedure and Evidence Act [Chapter 9:07] which provide
that any person who is in custody in respect of an offence shall be entitled to
release on bail unless the court finds that it is in the interests of justice
that he or she should be detained in custody.
The court's approach to the question of bail is one of striking a
balance between the interests of society, that the applicant should stand trial
and that there should be no interference with the proper administration of
justice and the liberty of the applicant who pending the outcome of his trial
is presumed innocent. The onus is on the
state to proffer cogent reasons supported by information justifying why the
applicant should not be released on bail.
See the case of S v Hussey 1991(2) ZLR 187(S).
In
his affidavit opposing the gravity of bail the Investigating Officer, Dumisani
Murindi had this to say:
“I am a duly
attested member of the Zimbabwe Republic Police stationed at ZRP Hwange. On the 11th day of September 2015
I was assigned to investigate a case of murder in which Tendai Nkomo stabbed
Sithembile Luphahla several times with a kitchen knife. I took the accused for indications and did
the necessary documentation and later sent him to court for initial
remand. Accused was remanded in custody.
The
accused is still in custody and I wish to oppose bail on the following grounds:
1. When Tendai Nkomo was arrested he made
threats to the witnesses who effected citizen arrest that once released he is
going to kill them.
2. Accused is a local person and the
community where he lives in baying for his blood and his safety once of the
custody will be in danger.
3. Accused
is likely to interfere with witnesses one released out of custody.
4. The
probability of the accused running away is high due to the gravity of the
offence.”
It
is my view that that the seriousness of the offence on its own is not
sufficient ground for denying the applicant bail. In this case however, the applicant threated
the witnesses with death upon his release from custody. The case against him is very strong. It is my considered view that the granting of
bail is likely to prejudice the administration of justice. In the case of State v Jongwe SC 62/02,
the learned Chief
Justice, CHIDYAUSIKU stated
as follows at page 5 of the cyclostyled judgment:
“In
this case the evidence against the appellant is very cogent, if not
overwhelming. The appellant admits
inflicting the wounds found on the deceased.
The Post Mortem Report clearly establishes the nature and the
multiplicity of stab wounds that he inflicted.
The Post Mortem Report clearly establishes that this was a savage and
brutal attack on the deceased…..”
The
court held that the risk of abscondment was high due to the strength of the
case against the applicant.
In
casu, the knife which the applicant used
was found stuck in the back of the deceased's body. The applicant stabbed the deceased three
times before fleeing the scene of the crime.
He was apprehended by members of the public. The likelihood of a lengthy prison term being
imposed against the applicant is high.
The possibility of applicant absconding to avoid trial is therefore
quite high.
For
these reasons, the application for bail pending trial is dismissed.
Marondedze, Mukuku and Partners,
applicant's legal practitioners
National Prosecuting
Authority, respondent's legal practitioners
