Bail re: Approach iro Approach to Bail Hearings and Rules of Evidence in Bail Proceedings

HH424-18 : ANESU MOREBLESSING NYAMUTATA vs THE STATE
Ruled By: CHITAPI J

The applicant applies for bail pending trial on allegations of committing four (4) Counts of robbery and one count of attempted robbery as defined in section 126 of the Criminal Law (Codification and Reform) Act [Chapter 9:23] between the period 19 April 2018 and 14 May 2018.

The applicant, a 28 year old female adult, is a resident of Epworth, Harare. In the four (4) Counts of robbery charged, the applicant allegedly committed the robberies acting in concert with two accomplices, namely, Thulani Ndlovu and Last Sithole who are residents of Epworth as well. The robberies, which were committed using the same modus operandi around Harare and Chitungwiza, involved robbing complainants of their motor vehicles by use of threats and violence.

In Count 5, where the applicant is co-charged with the same two accomplices, the complainant successfully resisted being robbed of her money and other property.

In two of the Counts, the applicant was the one who would take to the steering wheel of the vehicle following the robberies, and, in the other two counts, she would be an active participant.

The State vehemently opposed bail on the main basis that there was overwhelming evidence against the applicant in that she was heavily linked to the offence.

In particular, the applicant was alleged to have been the one who jumped into the driver's seat and drove away the motor vehicles in two (2) of the Counts following the robbery of the complainants of their vehicles.

The applicant was arrested whilst driving one of the vehicles. The police alleged that the applicant made indications leading to the recovery of one of the vehicles, subject of one of the robberies.

In her application, the applicant averred that bail is a right in terms of the new Constitution. She surmised that the seriousness of the offence was not a bar to the admission of an applicant to bail. She quoted the case S v Tsvangirai (no citation given) and gave it as an example in which Tsvangirai, who faced a treason charge, which the applicant perceived as more serious than the charges she is facing, was admitted to bail.

There is no gainsaying that the grant or denial of bail is not informed solely by the seriousness of the offence. A serious offence, however, invariably attracts a stiffer or heavier sentence compared to a less serious offence. The prospects of a heavy penalty is viewed as a factor more likely to induce in the accused an incentive to abscond to avoid such sentence if convicted. The fact of the offence being a serious one is, therefore, taken together with other relevant considerations - a factor of great impact in considering whether or not compelling reasons to deny the applicant bail have been established.

The applicant denied that she was arrested whilst driving the motor vehicles as alleged by the State counsel in his response which was supported by an affidavit sworn to by the investigating officer. She averred that she had recently acquired a driver's licence, in September 2017, and did not have any experience to “drive off at a vehicle high jacking” (to use her words).

She also denied that she had recently been released from prison under the Presidential Amnesty as alleged by the State. She challenged the State counsel to provide proof of the fact that she was a beneficiary of the Presidential Amnesty of March 2018.

The applicant submitted that she operated a flea market, was a mother to two minor children and did not have any pending cases. She offered to abide by the most stringent bail conditions which the court considered proper to impose.

Since the applicant was a self-actor, I exercised the court's duty to assist an unrepresented applicant to ensure that such applicant is not prejudiced through a lack of ability to properly present his or her case.

I also considered that it was necessary to have the issue of previous convictions properly ventilated because the State alleged that the applicant had been freed on Presidential Amnesty meaning that she had a previous conviction.

Since the offences which she is facing were committed in May 2018, if, in fact, she had been freed on amnesty in March 2018, it would mean that she allegedly committed the present offences hardly two months after benefitting from the amnesty.

An applicant in a bail application is compelled, in terms of section 117A(5) of the Criminal Procedure and Evidence Act [Chapter 9:07], to disclose previous convictions and pending cases. A wilful failure to do so grounds an offence in terms of section 117A(8) of the Criminal Procedure and Evidence Act punishable with a fine of up to Level 7 or imprisonment of up to two (2) years or both.

The offence is equally committed where the applicant supplies false information in regards to previous convictions and pending cases.

In terms of section 117(2)(d) of the Criminal Procedure and Evidence Act, the judge or court presiding over a bail application is required to take into account, inter alia, whether or not the applicant supplied false information on arrest or during bail proceedings.

In casu, if the applicant was being untruthful, to deny that she was a beneficiary of the Presidential Amnesty, which fact would mean that she had a previous conviction(s), it meant that she fell foul of section 117A(5) of the Criminal Procedure and Evidence Act. It also meant that the court would be required, in terms of section 117(2)(d), to take into account that the applicant had supplied a false denial that she had previous conviction.

Obviously, an adverse inference would have to be drawn against her being a proper candidate for release on bail given her untruthfulness considered together with other relevant factors.

An adverse inference can only be properly drawn where the court is considering proven facts.

I therefore directed the State counsel to provide proof of the applicant's release on Presidential Amnesty and postponed the hearing.

At the resumed hearing, State counsel…, capitulated on the issue of the applicant's alleged release on Presidential Amnesty. He submitted that the police had supplied wrong information on the Remand Form 242 when they endorsed on the form that the applicant and her accomplices were beneficiaries of the recent Presidential Amnesty.

The court expressed its disquietude at such despicable and abhorrent conduct by the police in endorsing untruthful information on the Request for Remand Form. The conduct of the police, in this regard, was detestable because the false information was intended to portray the applicant as an incorrigible criminal or repeat offender who is given to crime, and would, if released on bail, be likely to commit further offences.

Police are exhorted not to mislead the court because courts justifiably end up not taking the word of a policeman for objective fact and this can result in dangerous criminal suspects being released on bail because the courts will have a negative perception of the professionalism of the police.

The court therefore accepted that the applicant did not mislead it when she denied that she was a beneficiary of the recent Presidential Amnesty of March 2018.

Counsel for the State, whilst conceding as above, however, tendered a certificate of previous convictions showing that under case R684/14, the applicant and two accomplices, one with whom she is jointly charged in the five (5) Counts the subject of this bail application, was, on 12 September 2014, convicted on three (3) Counts of robbery by the Regional Magistrate at Harare. She was sentenced to 7 years imprisonment on each Count making a total of 21 years imprisonment. 5 years of the 21 years were suspended for 5 years on conditions of good behaviour.

The applicant admitted the previous convictions.

The court enquired of the applicant as to why she did not disclose that she had previous convictions. In response, the applicant stated that she inadvertently omitted to include the disclosure in her final application but had included it in the draft which she first prepared.

She stated, further, that the State was trying to use her previous convictions as an unjustifiable reason to have the court deny her bail.

I did not find the applicant's explanation, that she mistakenly omitted to disclose her previous conviction, to be truthful. I say so because such a disclosure is not only a peremptory requirement but is a fact which any applicant who has previously been convicted by a court cannot forget. In my view, the non-disclosure was intended to portray the applicant as a person whose past was crime-free, and, in the process, use the deception to persuade the court or judge to favourably determine the bail application in the applicant's favour.

Counsel for the State requested the court to summarily invoke the provision of section 117A(8) of the Criminal Procedure & Evidence Act [Chapter 9:07] and find the applicant guilty of a willful non-disclosure of previous convictions contrary to the requirements of section 117(5) of the Criminal Procedure and Evidence Act. Counsel for the State submitted that a clear message should be sent to bail applicants that it is a serious offence to fail to disclose previous convictions and pending cases.

For her part, and in response, the applicant stated that she was sorry for the omission.

I have carefully considered the State's request that the applicant be summarily tried for contravening of section 117A(5) as read with section 117A(8) of the Criminal Procedure and Evidence Act.

A failure to disclose previous convictions and pending cases leads to an inference that the applicant is dishonest. The failure also shows that the applicant will have failed to take the court into his confidence. The applicant's sincerity in making the undertakings which he or she makes in support of his or her admission to bail is brought into question by reason of the non-disclosure; see Julius Dansab v State CC (SA) 38/2009....,.

Reverting to the bail application before me, the applicant is not a good candidate for bail.

She faces the same offences as the ones for which she served jail time before being released by Presidential Amnesty in 2016. The offences are very serious and attract severe sentences as evidenced by the previous sentences totalling 21 years imprisonment imposed upon the applicant on her conviction. The fact that the applicant is allegedly strongly linked to the committed serious offences presents the applicant as a threat to public safety.

I am mindful that the applicant is a woman.

Ordinarily, female suspects, because of their links with their families and children are normally considered as unlikely to abscond if admitted to bail.

Every case, however, depends on its facts. Where the facts, as in this case, reveal that the female accused (applicant) has shown tendencies that she is given to serious crime, then the court will be justified to treat the applicant as an unsuitable candidate for bail.

The applicant, in casu, falls into the class of persons whose admission to bail has a real potential to bring the administration of justice into disrepute.

There are thus compelling reasons to deny the applicant bail and it is so ordered.

HH469-16 : BERNARD CHIWENGA vs THE STATE
Ruled By: CHIGUMBA J

The question that the court must determine in this matter is whether it is in the interests of justice that the applicant be detained in custody because the concerns raised by the State have merit; that he is likely to interfere with witnesses, and/or that he is likely to abscond and not stand trial.

In other words, the court must consider the evidence tendered on behalf of the State to substantiate these allegations.

It is only where the court makes a finding that the State's allegations are well founded, and the applicant fails to discharge the onus on him to establish that he is a good candidate to be admitted to bail, that a finding can be made that it is in the interests of justice that the applicant be detained in custody.

In the advent of the new Constitution, regard must be had to a new dispensation which demands that the court, in an application of this nature, be satisfied that there are compelling reasons justifying the continued detention of the applicant pending trial.

It is my view that the test is the same as that emanating from section 117 of the Criminal Procedure and Evidence Act, except that section 50 of the Constitution makes it clear that the reasons for denying admission to bail must be compelling.

In my view, this means that the State now has the onus of providing cogent evidence to support its allegations against an applicant for admission to bail. A certain level of proof of the allegations made by the State, in opposing admission of an applicant to bail, must now be met. It is my view that compelling reasons for refusal to admit to bail must be such allegations that are more likely than not to be true, on a balance of probabilities. The standard of proof is not beyond a reasonable doubt at this stage, it is based on a preponderance of probabilities.

The applicant applied to be admitted to bail pending trial.

On the 2nd of December 2015, the application was dismissed for the reason that the applicant was not a suitable candidate for admission to bail. The court stipulated that its reasons for this finding would follow.

These are the reasons.

This is an application for bail pending trial, in which the applicant seeks to be admitted to bail on the following conditions:

1. That he deposits US$50 with the Clerk of Court, Murehwa Magistrates Court.

2. That he resides at Nyamandoro School in Mudzi.

3. That he reports on every Friday at Mudzi Police Station between 6am and 6pm.

4. That he be ordered not to interfere with any State witnesses.

The applicant was charged with murder, as defined in section 47 of the Criminal Law (Codification and Reform) Act [Chapter 9:23] (the CODE), it being alleged that, on the 17th of October 2015, at 1800 hours, in Dzapasi Village, Chief Mangwende village in Murehwa, he murdered Vaidah Mubaiwa.

According to the Form 242, Request for Remand form, the accused was positively identified by three witnesses who are closely related to him, shoe prints at the scene of the crime were found to match the shoes that the accused was wearing when he was arrested, and the victim had positively identified the accused as the person who had waylaid and tried to ambush her at some point before her demise.

According to the outline of the State case, the accused was arraigned before the Regional Court at Murehwa on a charge of the rape of the deceased victim. He was remanded to 16 November 2015 for trial. It is alleged that, on 17 October 2015, the accused tried to waylay and abduct the deceased victim while she was alone at home. The deceased managed to escape and reported the incident to a neighbor, Maud Mufandaedza Chivengwa, who is the mother of the accused person. The accused's mother instructed Chengetai and Chantel Chivengwa to accompany the deceased victim to identify if indeed it was the accused person who had tried to abduct her.

They proceeded to a storm water drain where he had hidden and positively identified him.

It is alleged, further, that the accused was waiting to pounce on the deceased victim at her home and that, later on that day, when she went back home to secure the doors, he tried to grab her and she escaped. She was in the company of Chengetai and Shantel Chivengwa. The two again positively identified the accused as their uncle, and they reported this to their grandmother, as well as the fact that he tried to abduct the deceased victim again.

On 18 October 2015, the deceased's body was found in a gum tree plantation in the same village. The shoe prints at the scene of the crime were uplifted as evidence. The accused's shoes were taken as evidence when he was arrested.

The affidavit of the Investigating Officer, Detective Sergent Benjamin Thamangani of the Zimbabwe Republic Police, Criminal Investigations Department, makes interesting reading.

He avers that he received a report that the body of a fourteen year old girl had been found in a gum tree plantation in Chief Mangwende's village. She had allegedly been kidnapped from her home. Her remains were dumped on a pathway to the communal borehole. Her body had no visible marks. It was noted that two witnesses had been with her when she screamed for help while a kidnap attempt had been made on her.

It was noted that the accused was on a rape charge in which the deceased was the complainant, on CRB480-15.

The implication was that the pending rape trial was the motive for the murder, to silence the complainant and prevent her from testifying against the accused.

It was averred that the witnesses were closely related to the accused, and that he had already threatened one of them over the phone. Messages had been found in the accused person's mobile phone in which he had intimated that he was preparing to flee to South Africa to escape justice.

The applicant, in his bail statement, submitted that applications of this nature are governed by section 117 of the Criminal Procedure and Evidence Act. He referred the court to the case of Ian Makone v The State B439-07 where this court stated that bail should be allowed in the interest of individual liberty unless it is not in the interests of justice, and that each individual case must be dealt with on its own merits.

That case cited the case of S v Essack 1965 (2) SA 161D…, in which the following dicta appears;-

“…, in dealing with an application of this nature, it is necessary to strike a balance, as far as that can be done, between protecting the liberty of the individual and safeguarding and ensuring the proper administration of justice.”

The applicant referred the court to section 50 of the Constitution, Constitution of Zimbabwe Amendment Number 20 Act 2013 which, in 50(1)(d), states that;-

“50 Rights of arrested and detained persons

(1) Any person who is arrested —

(a)…,.

(b)…,.

(c)…,.

(d) Must be released unconditionally, or on reasonable conditions, pending a charge or trial, unless there are compelling reasons justifying their continued detention; and…,.”…,.

The applicant denied that he murdered Vaida Mubaiwa as alleged.

It was submitted, on behalf of the applicant, that he resides in Dzapasi village under Chief Mangwende, and that he is 48 years old, and that has never shown any willingness to endanger the safety of any member of the public, and that he co-operated fully with police investigations. It was submitted, further, that the applicant was not likely to abscond because he has family ties here and no means of escaping from this jurisdiction. He is a family man of fixed abode with a large family which depends on him.

The court was urged to follow the dicta in the case of S v Benataar 1985 (2) ZLR 205 (HC) that the chances of abscondment can be minimized by the imposition of suitable conditions.

The court, in that case, said that;-

“…, in striking a balance between the liberty of a subject and the proper administration of justice, the imposition of conditions in an application for bail can be decisive; where bail can be granted subject to safeguarding conditions, the court should, if possible, lean in favor of doing so…,.”

The court was asked to note that the applicant had not breached his bail conditions on the rape charge, an indication that he was willing to stand trial and to clear his name.

It was submitted that the allegations against the applicant were manufactured in an attempt to 'fix' him by witnesses whose evidence is unreliable and unbelievable. It was submitted that the evidence of the shoe prints was unreliable from a forensic point of view. The evidence of interference with witnesses and intention to flee the jurisdiction was not buttressed by any documentary evidence such as phone records.

It was submitted that there is no prima facie evidence that it was the accused who murdered the deceased.

The applicant assured the court and undertook not to interfere with any of the witnesses if admitted to bail.

The court was urged to be guided by the case of S v Bennet 1976 (3) SA 653 (H), where it was stated that;-

“…, it appears to me that, as applicants have not interfered with investigations, the proper approach should be that unless the State can show that there is a real risk that the accused will, not merely may, interfere, there does not appear to me to be a reasonable possibility of such interference. In any event, the applicant can be dissuaded from such interference by the imposition of suitable conditions. In reality, if the police experience or encounter any such interference, that is fertile ground to apply for re-arrest and cancellation of bail.”

It was submitted that the applicant is aware of the seriousness of the charge that he is facing, but that, this alone, is not enough to deny him his constitutionally guaranteed right to liberty. The court was urged to rely on the case of S v Hussey 1991 (2) ZLR 187 (S), as authority for this proposition.

The court, in that case, said that the mere fact that an offender is facing a serious charge, albeit of a prevalent offence, does not justify his incarceration pending trial, and that seriousness of an offence is clearly a factor which should be taken into account together with other factors, but not the only factor to determine whether a person should be incarcerated. The court went to say that;-

“…, it is a well-established principle of our law that a man is innocent until proven guilty. To disregard this very well founded principle and to incarcerate an individual purely because he faces a serious offence would be to disregard this very valid and important principle and to weaken respect for the law and the social condemnation of those who break it…,.”

On the purpose of bail, it was submitted that the court must, in an application for bail, strike a balance between the interests of society, that the accused should stand trial and that there should be no interference with the administration of justice, and the liberty of an accused, who, pending the outcome of his trial, is presumed innocent; see Kisimusi Dhlamini v The State HH57-09; S v Achison 1991 (2) S 805; S v Dube HB09-03; AG v Phiri 1998 (2) ZLR; S v Chiadza 1988 (2) ZLR (S); S v Matagoge & Ors 1991 (1) SACR 539B…,.; and S v Fourie 1993 (1) ZLR 100 (S).

Finally, it was submitted that the applicant had discharged the onus of showing that he was a suitable candidate for admission to bail, on a balance of probabilities.

The State opposed the admission of the applicant to bail on the basis that the evidence against him was overwhelming. The court was referred to the case of S v Aitken 1992 (1) ZLR as authority for this proposition.

It was submitted, on behalf of the respondent, that the allegations against the applicant had been substantiated by the affidavit of the investigating officer, in the outline of the State case, and on the Form 242 Request for Remand form. It was submitted, further, that there are compelling reasons justifying the continued detention of the accused in terms of section 50(1)(d) of the Constitution.

Courts are guided, in their consideration of the suitability of any candidate for admission to bail pending trial, by the provisions of section 117(1) of the Criminal Procedure and Evidence Act [Chapter 9:07] which provides that:

“117 Entitlement to bail

Where it is alleged that the accused will abscond and not stand trial:

(i) The ties of the accused to the place of trial;

The evidence on record is that the accused person's family homestead is in this area, his mother and his brother live there, and that he is the headmaster of a local school. The accused has lived in this area all his life.

I am satisfied that his ties to this area are binding and substantial.

(ii) The existence and location of assets held by the accused;

There was no evidence in the accused applicant's papers on this aspect, or in the State papers. The accused will be taken as not having any assets, for purposes of this application, because of the paucity of evidence.

(iii) The accused's means of travel and his or her possession of, or, access to travel documents;

There was no evidence in the State papers, except an allegation that the accused's mobile phone contained messages to the effect that he was preparing to flee this jurisdiction.

In S v Hudson…, the court stated that:

“Where an accused applies for bail and confirms, on oath, that he has no intention of absconding, due weight has of course to be given to this statement on oath. However, since an accused that does have such an intention is hardly likely to admit it, implicit reliance cannot be placed on the mere say-so of the accused. The court should examine the circumstances.”

We note that no sworn statement was filed of record on behalf of the accused.

The accused did not take the court into his confidence as to whether he has a valid passport, nor did he tender it to the court. The accused is employed as a teacher so we can find that he has the means to travel should he wish to do so.

The accused has not discharged the onus of showing that he is not a flight risk.

The State's statement on oath, by the investigating officer, constitutes prima facie evidence of its averments. It is cogent evidence unless it is discredited.

On a balance of probabilities, balancing that statement against the bald assertion of 'fixing' made on behalf of the accused, it is more likely than not that the sworn statement contains true averments.

I am satisfied that it is more probable than not, that the accused indeed indicated that he intended to flee this jurisdiction via messages on his mobile phone.

There is no reason why, from the record of proceedings, and in the absence of evidence, other than a bald averment, the court should come to the conclusion that the investigating officer, who is an officer of the court, was not telling the truth in a sworn statement.

We find, further, on a preponderance of probabilities, that, it is more likely than not, that the accused has no travel documents otherwise he would have offered to surrender them in an effort to persuade the court that he intends to stand trial and not flee.

(iv) The nature and gravity of the offence or the nature and gravity of the likely penalty therefor;

Murder is a capital offence, which can attract the death penalty if committed in aggravatory circumstances, will attract a custodial sentence of at least twenty years. There is no doubt that the prospect of being incarcerated for a long period is very real in these circumstances, upon conviction.

(v) The strength of the case for the prosecution and the corresponding incentive of the accused to flee;

It is an indictment on the accused that the witnesses against him are all members of his family. There is no evidence on record that there is bad blood between the accused, his mother, his brother's wife and/or his nieces. A bald statement of their intention to 'fix' him forms part of the record.

In the absence of a better explanation as to why all these witnesses, including two minor children, would 'collude' against him, the probabilities support the assertion that the witnesses may indeed have seen what they claim to have seen. They did not see the accused murder the victim, but their evidence of the kidnapping and abduction attempt by the accused will have to be refuted at the trial or by tangible evidence of its unreliability or inconsistency.

For purposes of this application, we accept that it is more likely than not that the State case against the accused is strong.

The accused was charged with the rape of a minor and admitted to bail pending trial. The parties all lived in the same community and were neighbors. While on bail pending trial for rape, it is alleged the accused was seen attempted to kidnap the victim - by members of his own family. The victim had earlier on sought refuge at his mother's homestead, alleging that he was lurking about her homestead and that she had fled in fear after he tried to abduct her. In these circumstances, the accused's incentive to flee is strong.

(vi) The efficacy of the amount or nature of the bail and enforceability of any bail conditions;

The accused is a teacher who will be able to afford the proposed deposit. The proposed conditions are not onerous, that are similar to the ones imposed when the accused was admitted to bail on the rape charge. We accept that the accused faithfully adhered to those conditions. There is no cogent evidence on record to justify a contrary conclusion.

(vii) Any other factor which, in the opinion of the court, should be taken into account;

The court considered that the victim of rape and subsequently murder was a minor whose life was cut short in the most callous manner after being subjected to sexual violence. The court also considered that the victim and the accused were neighbors and that these cumulative offences against the victim will have traumatized to community.

The court also took into consideration the following factors;-

(i) Whether the accused is familiar with any witness or the evidence;

As previously stated, the accused is closely related to all the witnesses, and, if admitted to bail at the address proffered, is likely to and reside in the same community as those witnesses, which is not desirable.

(ii) Whether any witness has made a statement;

It is common cause that the witnesses are closely related to the accused person, and that the minor witnesses claim to have seen him hiding in a storm water drain after allegedly attempting to abduct the victim from her home. There are no witness's statements in the record.

(iii) Whether the investigation is completed;

It is common cause that the investigations are not yet complete.

(iv) The accused's relationship with any witness and the extent to which the witness may be influenced by the accused;

It is common cause that the witnesses are closely related to the accused and that, some of them being his nieces are likely to be respectful and deferential to him in accordance with our African culture. The minors are the ones who are eyewitnesses, and are more likely to be susceptible to undue influence.

(v) The efficacy of the amount or nature of the bail and enforceability of any bail conditions;

This has been discussed above.

(vi) The ease with which any evidence can be concealed or destroyed;

There is no indication that the police are searching for any evidence that is likely to be tampered with forensic or otherwise.

It is this court's view that the State's fears, that the applicant will attempt to interfere with witnesses, is well founded by the averments in the affidavit of the investigating officer.

The close family ties between the accused and the witnesses does not bode well for peaceful co-existence pending trial or even during trial. One of the witnesses is the accused's own mother. How will they look each other in the eye pending the resolution of this matter? They all reside in Chief Manwgende's village and fetch water from the same well. There is a real risk that the accused will interfere with his relatives because of the nature of the allegations, the family ties, and the importance of their eyewitness accounts to his conviction or acquittal.

The imposition of bail conditions, in this case, is not likely to deter the applicant from absconding, for reasons which the court has already canvassed above. We find that there are compelling reasons why the accused cannot be admitted to bail, and should not be admitted to bail, at this stage.

It is for his own protection, as well as the safety and protection of the witnesses.

After all, in the circumstances of this case, the victim was apparently killed to prevent her from giving evidence on the rape allegations. The accused has not been proved to be the perpetrator of this violence upon the person of another, but his release back to the community, in these circumstances, may not be in the interests of justice.

The court must weigh the interests of justice against the right of the accused to his personal freedom, with particular emphasis on the likely prejudice he would suffer were he to be detained in custody.

In its analysis, and balancing act, the court is enjoined to consider:

(a) The period for which the accused has already been in custody since his or her arrest;

(b) The probable period of detention until the disposal or conclusion of the trial if the accused is not released on bail;

(c) The reason for any delay in the disposal or conclusion of the trial and any fault on the part of the accused with regard to such delay;

(d) Any impediment in the preparation of the accused's defence or any delay in obtaining legal representation which may be brought about by the detention of the accused;

(e) The state of health of the accused;

(f) Any other factor which, in the opinion of the court, should be taken into account.

The applicant has been in custody since October 2015. There is no trial date. The accused is a family man who has previously been convicted of domestic violence.

Both crimes that he stands currently accused of involve elements of physical violence against the person of another.

The court finds that the interests of justice would be prejudiced by the admission of the accused to bail because there is cogent evidence that he has not been candid with the court in various material respects; the prosecution case against him is strong; the penalty severe.

The court is not satisfied that he intends to stand trial, the court is not satisfied that the accused has sufficient incentives to stay in Zimbabwe until the finalization of the trial. The court is satisfied that, the imposition of bail conditions would not be a sufficient deterrent to keep the applicant in Zimbabwe because of the severity of the sentences that are likely to be meted out to him if he is convicted.

The applicant failed to discharge the onus on him, to place sufficient evidence before the court, to satisfy the court that, on a balance of probabilities, he will stand his trial if released on bail. This means that he is not a suitable candidate for admission to bail.

The application for bail is dismissed for these reasons.

SC04-21 : MARRY MUBAIWA-CHIWENGA vs THE STATE and NATIONAL PROSECUTING AUTHORITY and CRIMINAL CLERK OF COURT, ROTTEN ROW MAGISTRATES COURT
Ruled By: MAVANGIRA JA

Matters of the liberty of the individual, especially so before conviction, are sacrosanct matters that require expeditious resolution by judicial decisions that are well informed and based on the law.

View Appeal HH16-21 : CAINOS CHINGOMBE vs THE STATE
Ruled By: CHIKOWERO J

Aggrieved by the Magistrates Court's refusal to admit him to bail pending trial, the appellant has sought that decision reversed.The appeal is made in terms of section 121(1) of the terms of the Criminal Procedure and Evidence Act [Chapter 9:23] (“the CPEA”) as read with Rule 6(1) of the High ...

Aggrieved by the Magistrates Court's refusal to admit him to bail pending trial, the appellant has sought that decision reversed.

The appeal is made in terms of section 121(1) of the terms of the Criminal Procedure and Evidence Act [Chapter 9:23] (“the CPEA”) as read with Rule 6(1) of the High Court of Zimbabwe Bail Rules, 1971.

THE BACKGROUND

The appellant, the Human Capital Director and Acting Town Clerk of the City of Harare, was brought before the Magistrates Court at Harare, a Designated Anti-Corruption Court, facing a charge of Criminal Abuse of Duty as a Public Officer as defined in section 174(1)(a) of the Criminal Law (Codification and Reform) Act [Chapter 9:23] (“the Code”); alternatively, theft of trust property as defined in section 113(2)(b) of the Criminal Law (Codification and Reform) Act.

The appellant was employed as Capital Director by the City of Harare at the time of the alleged commission of the offence. The allegations are that on 30 October 2014 the appellant, working in collusion with other executive employees of the City of Harare, transferred US$130,000 from the traditional Beer Levy Account into his personal bank account.

Thereafter, he used US$119,000 to purchase a Land Cruiser Prado which he registered in his name; he pocketed the difference amounting to US$11,000, which he later refunded to his employer through deductions from his salary.

According to the Traditional Beer Act [Chapter 14:24], the traditional beer levy account is maintained by a local authority on behalf of the Minister of Local Government, Public Works and National Housing. It is an account kept separate from the local authority's general revenue accounts. Withdrawals from that account are, by statutory command, only permissible on Ministerial authority, and, only then, for the benefit of the residents of the local authority in the sense of funding the provision of sanitation, water, and health, among other essential services.

The alleged criminal conduct is that the appellant (in connivance with the other executive employees) abused his duty as a public officer by appropriating the US$130,000 without ministerial authority to the prejudice of the residents of the City of Harare. Alternatively, the simple allegation is that the appellant stole those trust funds.

The Magistrates Court gave two reasons for refusing to admit the appellant to bail;

(i) First, the appellant was likely to abscond.

(ii) Second, he was likely to interfere with investigations and witnesses.

THE GROUNDS OF APPEAL

Five (5) grounds were raised. I quote these verbatim:

“1. The learned Magistrate misdirected herself and improperly exercised her discretion in finding that there was likelihood that the appellant would abscond without applying her mind to, and considering, all the mandatory factors provided for in section 117(3)(b) of the Criminal Procedure and Evidence Act [Chapter 9:07].

2. The learned Magistrate misdirected herself and improperly exercised her discretion in finding that there was a likelihood that the appellant would interfere with evidence without applying her mind to, and considering, all the mandatory factors provided for in section 117(3)(c) of the Criminal Procedure and Evidence Act [Chapter 9:07].

3. The learned Magistrate misdirected herself in law in failing the find that the State had not discharged the onus of proving 'compelling reasons' for denial of bail within the contemplation of section 50(1)(d) of the Constitution of Zimbabwe 2013, particularly in that:

3.1 There was neither compelling evidence nor any other basis from which it could be said that appellant was likely to abscond.

3.2 There was neither compelling evidence nor any other basis from which it could be said that appellant would interfere with witnesses.

4. The learned Magistrate's decision, to deny bail, on the basis of the two grounds advanced by the State, is so outrageous in its defiance of logic or common sense that no reasonable magistrate, applying his/her mind to the facts and conscious of the right to liberty, could ever have reached that conclusion, particularly in that:

4.1 No reasonable magistrate could have failed to find that the bail conditions offered by the appellant overwhelmingly addressed and answered each of the grounds upon which bail was opposed and refused.

4.2 No reasonable magistrate could have failed to find that the crux of the State case, namely, appellant's alleged use of his position to benefit himself, fell outside the main charge thereby making the State case so weak that it could not be a reasonable basis for denying bail.

5. The learned magistrate committed an irregularity by writing a ruling that is so brief and generalised as not to be a permissible basis for denying bail.”

THE TEST FOR INTERFERING WITH THE LOWER COURT'S DECISION ON BAIL

The granting or refusal of bail involves the exercise of discretion by the Court before which the bail application is made. An Appellate Court will therefore not interfere with the exercise of discretion by the lower court unless the discretion was wrongly or improperly exercised: see Aitken and Another v AG 1992 (1) ZLR 249 (S); Chimwaiche v State SC18-13.

Interference with a lower Court's exercise of its discretion is thus permissible only in limited circumstances.

In Barros and Another v Chimponda 1999 (1) ZLR 58 (S) GUBBAY CJ, with the concurrence of EBRAHIM JA and MUCHECHETERE JA said…,:

“The attack upon the determination of the learned Judge, that there were no special circumstances for preferring the second purchaser above the first one, which clearly involved the exercise of a judicial discretion, may only be interfered with on limited grounds: see Farmers Cooperative Society (Reg) v Beffy 1912 AD 343 at 350.

These grounds are firmly entrenched.

It is not enough that the Appellate Court considers that if it had been in the position of the primary Court, it would have taken a different course. It must appear that some error has been made in exercising the discretion.

If the primary Court acts upon a wrong principle, or irrelevant matters, to guide or affect it; if it mistakes the facts; if it does not take into account some relevant considerations; then, its determination should be reviewed and the Appellate Court may exercise its own discretion in substitution, provided always has the materials for so doing. In short, this court is not imbued with the same broad discretion as was enjoyed by the trial Court.”

It is with these principles in mind that I proceed to determine the appeal.

THE ISSUE ARISING FROM THE GROUNDS OF APPEAL

Bail was refused on two grounds, but, five grounds of appeal have been relied upon in attacking the decision of the Magistrates Court. The issues arising from the grounds of appeal are these;

(i) First, the Court below misdirected itself on the law in not considering all the factors laid down in section 117(3)(c) of the Criminal Procedure and Evidence Act in assessing, respectively, whether the likelihood of abscondment and interference with investigations or evidence were established.

(ii) Second, the Magistrates Court misdirected itself in finding, in the absence of evidence, that, the State had established that if released on bail the appellant was likely to abscond and to interfere with the investigations or evidence.

(iii) Third, the magistrate misdirected herself in failing to find that the imposition of bail conditions was enough to allay any fears that the appellant will interfere with investigations and evidence.

To me, ground number 5 is not really a ground of appeal. Rather, it is effectively an argument stemming from the first, second, and third issues I have just spelt out. The argument is simply, that, the brevity of the judgment a quo; evidence that the relevant bail principles were not considered. No analysis of the evidence and submissions was made. The result is that there are no proper reasons for the decision to refuse bail.

ABSCONDMENT

Section 117(3)(b) of the Criminal Procedure and Evidence Act lays out six factors that the Court must consider in assessing whether there is a likelihood of abscondment. These are:

(i) The ties of the accused to the place of trial;

(ii) The existence and location of assets held by the accused;

(iii) The accused's means of travel and his or her possession of, or access to, travel documents;

(iv) The nature and gravity of the offence or the nature and gravity of the likely penalty therefore;

(v) The strength of the case for the prosecution and the corresponding incentive of the accused to flee;

(vi) The efficacy of the amount or nature of the bail and enforceability of any bail conditions;

(vii) Any other factor which, in the opinion of the Court, should be taken into account.

To begin with, the Court a quo misdirected itself on the law on bail when it said:

“In considering bail application, Court has to weigh factors which are outlined in section 117(2) of the Criminal Procedure and Evidence Act, Chapter 9:07, which, among those factors, include absconding, interfering with evidence, seriousness of the offence, and likely sentence.

Either one or more of them, if established, constitute compelling reasons and justifies accused persons continued detention in custody pending trial.”

The seriousness of the offence and the likely penalty are not two factors. It is one factor.

A serious or grave offence is more likely than not to attract a corresponding penalty. Seriousness of an offence is one of the factors a Court puts into the scales when weighting the risk of abscondment. The seriousness of an offence, or the likely penalty, are not stand alone factors on which bail may be refused.

The court a quo mixed up the bail principles.

The Court a quo misdirected itself in treating the seriousness as two different factors.

It further misdirected itself in considering the maximum sentence for the main charge, 15 years imprisonment, as a factor with an existence separate from the seriousness of the offence.

On the basis of this erroneous view of the law (which was not warranted) the magistrate concluded that the appellant was likely to abscond. This appears in three short paragraphs:

“On the likelihood of absconding trial if granted bail, State averred that accused person is facing a serious offence.

A plethora of case law has ruled seriousness of the offence, per se, is not a bar to deny accused person bail. However, State further indicated that due to the gravity of the offense in question and that the likely sentence is imprisonment not exceeding 15 years, Court rules that the cited cases by State, which include S v Ndlovu 2001 (2) 261, are of paramount importance contrary to what accused person, through his defence counsel, even though they were decided before the enactment of the new 2013 Constitution, for they are in tandem with the factors stipulated in section 117(2) of the Code.

Court rules that the seriousness of the offense, or its gravity, and the likely lengthy imprisonment, would induce accused person to flee the jurisdiction of this Court. This is further coupled with the laxity that our police officers and immigration officers, as was held in William Sithole v State 88-02, that people cross borders easily without requisite travel documents.”…,.

I agree with counsel for the appellant, that, the magistrate found that the respondent had established that the appellant was likely to abscond simply because he was facing a serious offense for which the law giver had prescribed a maximum penalty of 15 years imprisonment. This was denying the appellant bail on the ground that he was facing a serious offence. This is an invalid reason to deny anyone bail: See S v Hussey 1991 (2) ZLR 187 (SC).

The magistrate therefore grossly misdirected herself.

It is true, that, after making this finding, the Court below then went on to recite other reasons to bolster a finding that it had already made. The reasons were placed before the Court when the State counsel was making submissions: but, the learned magistrate did not assess them against competing submissions made on behalf of the appellant.

That is an injudicious exercise of discretion.

A court's duty is to weigh argument from both sides to enable it to arrive at a proper determination of the matter before it.

The submissions, which were uncritically accepted by the court a quo, post its finding that the seriousness of the offense was likely to induce the appellant, were these:

(i) The police and immigration officers were lax in enforcing border controls;

(ii) This country's borders are porous;

(iii) The appellant is a person of means;

(iv) He has travelled to various countries;

(v) He stayed for a considerable period in Zambia;

(vi) The extradition process with neighbouring countries has proven difficult;

(vii) The appellant acted in connivance with others who are still at large;

(viii) The investigating officer is finding it difficult to locate the appellant's accomplices who are still at large.

The court a quo did not consider all the factors germane to an assessment of the likelihood or otherwise of abscondment. These include;

(i) The strength of the case for the prosecution;

(ii) The effectiveness or otherwise of bail conditions to allay any fears of flight;

(iii) The ties of the appellant to the place of trial; and

(iv) The existence and location of assets held by the appellant.

The magistrate thus did not properly exercise her discretion: see Gomba v The State HH557-20.

The error means I am at large to exercise my discretion on the issue of abscondment, using the same materials as before the court a quo. In doing this, I may or may not reach the same conclusion as was reached a quo.

The record discloses the following:

The appellant's roots are in Zimbabwe. Although he studied in Zambia, he has worked in this country. He is the owner of an immovable property called 10 Chamberlain Road, Greendale in Harare. This is where he resides. There is no evidence that he has connections outside Zimbabwe. There is no evidence that he owns assets outside our borders. There is no evidence of any money he holds with any local bank. There is no evidence that he holds any offshore bank accounts.

There is uncontroverted evidence that some prominent persons (not named) contacted the investigating officer pleading for his release from police custody.

My view is that both the main and alternative charges are serious.

The appellant benefited in the sum of US$130,000. These appear to be public funds. That he received this amount is not in dispute. That this was without Ministerial authority is not denied. The audit report shows that the appellant orchestrated the process by recommending to the caretaker Council, in 2014, that the funds be transferred into his personal account. It appears the appellant and his accomplices used the councillors as the machinery to access funds which they had no legal entitlement to.

I am not the trial court, but, it seems to me, prima facie, that, it cannot be a strong defence, to both the main and alternative charges, for the appellant to say his conditions of service entitled him to the vehicle which was bought using money from the Traditional Beer Levy Account. The bottom line seems to be that funds from that account ought not to have been used for the purpose which the appellant, and his accomplices, having got their way around council, utilized it.

The prejudice to the residents of Harare appears to be there.

It seems to me that one cannot say, for purposes of this appeal, that the respondent's case is weak in respect of the main charge. If the respondent proves, at the trial, which to me seems quite probable, that, the funds in question were trust funds, the alternative charge would have been proved.

My view is that the prosecution has a strong case against the appellant, the probability of conviction, on either charge, is high, and, if that happens, then, the likelihood of the appellant being incarcerated for a lengthy period is also high.

The maximum penalty in respect of the main charge is fifteen years imprisonment, while that for the alternative charge is twenty-five years imprisonment.

It is the fear of lengthy incarceration, coming on the high chances of conviction, that I find likely to induce the appellant to flee - with or without a passport.

His known immovable property can actually be disposed of to facilitate the abscondment.

It is true that the investigating officer said he did not know of anything that the appellant has done suggestive of abscondment. But, the investigating officer is not the court. The court retains its discretion.

Although the appellant testified a quo, he did not produce his title deeds. He did not offer the title deed as part of the bail conditions.

I raised this aspect with counsel for the appellant at the hearing of the appeal.

He said if the Appellate Court were minded to allow ordering the surrendering of title deed could be made.

I heard this matter on appeal. The title deed is not part of the record. The learned magistrate could not have decided the matter on documentary evidence not placed before her. Neither can I consider to surrender the title deed. The document is not before me.

My view, on the issue of abscondment, may have been different if the title deed were placed before the learned magistrate and a suitable condition suggested to her. In short, I can only exercise my discretion based on the materials that are before me. That is my understanding of the dicta that I have quoted from the decision in Barros and Another v Chimponda 1999 (1) ZLR 58 (S)....,.

INTERFERENCE WITH WITNESSES AND THE EVIDENCE

I agree that the magistrate misdirected herself in perfunctorily dealing with this aspect.

She said the police needed to be accorded time to finalise statement recording, and that the outstanding witnesses were workmates of the appellant.

That was all that she said.

SC17-21 : MARRY MUBAIWA CHIWENGA vs THE NATIONAL PROSECUTING AUTHORITY and THE CLERK OF COURT ROTTEN ROW MAGISTRATE'S COURT
Ruled By: UCHENA JA

This is an appeal against the judgment of the High Court dismissing the appellant's application for variation of bail conditions.FACTSThe details of this case can be summarised as follows:The appellant was, in 2018, injured during a bomb blast in Bulawayo. She sustained injuries on her arms. She sought medical treatment ...

This is an appeal against the judgment of the High Court dismissing the appellant's application for variation of bail conditions.

FACTS

The details of this case can be summarised as follows:

The appellant was, in 2018, injured during a bomb blast in Bulawayo. She sustained injuries on her arms. She sought medical treatment in South Africa. Until her arrest, on 4 December 2019, she was receiving treatment from a South African specialist doctor.

On her arrest, she was charged with:

1. Six (6) Counts of contravening section 5(1)(a) of the Exchange Control Act [Chapter 22.05] 'exporting foreign currency.'

2. Six (6) Counts of contravening section 8(2) of the Money Laundering and Proceeds of Crime Act [Chapter 9.24] 'concealing, disguising the true nature, source, location, disposition, movement or ownership of or right's with respect to property, knowing or suspecting that such property is proceeds of crime.'

3. One (1) Count of contravening section 136 of the Criminal Law (Codification and Reform) Act [Chapter 9.23] (fraud).

She was subsequently charged with the attempted murder of her husband and assault for assaulting their maid.

According to documents attached to Form 242s in the applicant's application for variation, the appellant's charges of 6 (six) counts of contravening section 5(1)(a) of the Exchange Control Act are based on the following facts:

Count One: That she sent her driver Carrington Kazingizi and Terrence Mutandwa to China with US$114,000 without any declaration being made to the authorities.

Count Two: That she instructed Memory Chakuinga to issue a proforma invoice for the supply of event tents and chairs which were sent to CBZ Bank and the appellant. The appellant then applied to CBZ Bank for the transfer of US$201,846-=81 by telegraphic transfer into Falcon Projects Suppliers (Private) Limited's South African FNB bank account no 62576755105.

Thereafter, the appellant instructed Memory Chakuinga to divert the money from the purchase of event tents and chairs to Range Rover Centre Menyln towards the purchase of her personal vehicle, a Range Rover Autobiography, which she registered in South Africa, in her name, bearing registration number HW40JNGP.

Count Three: That she instructed Memory Chakuinga to raise a proforma invoice for the supply of household electric meters which she sent to CBZ Bank and the appellant. The appellant used that proforma invoice to cause CBZ Bank to transfer US$307,545=05 into Falcon Projects Suppliers (Private) Limited's South African FNB Bank account number 62576755105.

Thereafter, the appellant instructed Memory Chakuinga to divert the funds towards purchasing House Number 1309 Kingstone Heath Close, Waterkloof Golf Estate, Pretoria, South Africa. The house was registered in the name of LaChelle Travel and Tours (Pty) Ltd South Africa of which the appellant is the sole shareholder.

Count Four: That the appellant requested Judith Gamuchirai Goredema to source for three million rands for the purchase of the appellant's two cars, a Range Rover and a Ranger.

Thereafter, the appellant gave Judith Gamuchirai Goredema US$230,769=23. The Range Rover was registered in South Africa in the appellant's names bearing registration number HX61PSGP. The registration details for the Ranger had not been established at the time the charges were preferred.

Count Five: That the appellant externalised US$36,923=08 for the purchase of furniture for her South African House Number 1309 Kingstone Heath Close, Waterkloof Golf Estate, Pretoria, South Africa.

Count Six: That the appellant instructed Memory Chakuinga to prepare an invoice for the supply of prepaid meters. Thereafter, the appellant used it to cause CBZ Bank to transfer US$142,859=30 into Bonnette Electrical (Pty) Ltd's South African Standard Bank account number 371164540.

Instead of the money being used to purchase prepaid meters, the appellant instructed Memory Chakuinga to divert it towards the purchase of her second house being, Number 149 Valderana Close, Pretoria, South Africa.

The allegations involve the unlawful externalisation of US$1,033,943=10.

The other 6 (six) counts are for money laundering.

The charge of fraud is for misrepresenting to the Judge President and the Acting Chief Magistrate that her husband had consented to the solemnisation of their marriage when he had not, resulting in marriage arrangements and documents being prepared and the Acting Chief Magistrate going to No. 614 Nick Price Drive, Borrowdale Brooke to solemnise the marriage which did not take place.

The attempted murder charge is based on what she is alleged to have done in South Africa when her husband, who was critically ill, had been airlifted to South Africa for treatment.

It is alleged, that, she, instead of taking him to hospital, kept him in a hotel room for more than 24 hours until her husband's security personnel intervened and took him to hospital. Thereafter, the appellant visited her husband who was in a private ward and on life saving Intra Venous Giving Set as well as Central Venous Catheter in order to sustain his life. She requested for privacy with her husband. Her husband's security personnel left the ward after which the appellant removed the life-saving equipment from the complainant who started bleeding profusely. She is alleged to have pushed him off the bed and left the ward. Thereafter, her husband's security personnel, on seeing what had been done to the complainant raised alarm and hospital staff came and reconnected the life saving equipment.

The assault charge is based on allegations that she assaulted their maid who she had met at their children's school.

Her bail applications in the Magistrate's Court were dismissed. She appealed to the High Court which granted her bail for the initial charges, on the following conditions:

1. That she deposits RTGS$50,000 with the Clerk of Court at Harare Magistrate's Court.

2. That she reside at 614 Nick Price Drive, Borrowdale Brooke, Harare.

3. That the Clerk of Court shall accept as surety the property known as Lot 1 of Lot 343A Highlands Estate measuring 3,642 square metres held by KM Auctions (Private) Limited, under Deed of Transfer 2244/2006 accompanied by the necessary resolution of the directors and shareholders of KM Auctions (Private) Limited, Keni Mubaiwa and Helga Junior Mubaiwa.

4. That applicant shall surrender her diplomatic passport to the Clerk of Court at Harare Magistrate's Court.

5. That the applicant shall report at Borrowdale Police Station once a fortnight on Friday between 6am and 6pm.

6. The applicant shall not interfere with State witnesses.

In respect of the attempted murder charge, the none-monetary conditions imposed in respect of the initial charges were ordered to cover this charge in addition to her being ordered to pay additional bail in the sum of RTGS$10,000. The condition that she resides at No.614 Nick Price Drive, Borrowdale Brooke was varied to No.64 Follyjon Crescent Glen Lorne, Harare.

In respect of the assault charge, the following bail conditions were ordered by the High Court:

1. That she deposits $1,500 with the Clerk of Court, Harare Magistrates Court.

2. She resides at Number 64 Follyjon Crescent, Glen Lorne, Harare until the matter is finalised.

3. She reports at Borrowdale Police Station every fortnight on Friday between 6am and 6pm.

4. She does not interfere with State witnesses, including Delight Munyoro and Batsirai Furukiya. She does not attend at Hellenic Primary School except in connection with consultations with school authorities.

Thereafter, the appellant's initial bail conditions were altered to include the surrendering of her ordinary passport number CN701555 which had not been previously disclosed when bail was granted by the High Court, to the Clerk of Court at Harare Magistrates Court.

Subsequently, the appellant applied to the court a quo for the variation of her bail conditions.

She sought the release to her of her ordinary passport so that she could travel to South Africa for medical treatment by Dr Van Hedeen, a specialist on lymphoedema. She also sought the temporal suspension of the condition that she reports to Borrowdale police every fortnight on Fridays. This was to enable her to travel to South Africa where she was to receive treatment for a period which would result in her not being able to meet the reporting condition.

In her application for variation, the appellant concentrated on the condition of her health. She did not explain how the interests of justice should be balanced with her need for medical treatment if her application was to be granted.

She merely said she would not abscond as she could not risk the forfeiture of her parents' property which was offered as surety when she was granted bail by the High Court.

On the other hand, the first respondent opposed the application alleging that the appellant has strong ties with South Africa and that most of the charges preferred against her involve the externalization of foreign currency to South Africa.

The attempted murder is alleged to have occurred in South Africa.

The first respondent also opposed the application for variation on the basis that the evidence led by the appellant left grey areas on the issue of whether or not there are specialists in Zimbabwe who can treat the appellant's condition.

The court a quo accepted that the appellant needed medical treatment by specialists. It accepted that prior to her arrest she was being attended to by Dr J Van Hedeen, a South African specialist. The court a quo however did not accept the evidence of Dr J Van Hedeen who authoritatively spoke about the appellant's current condition without disclosing how he got that information as the appellant has not travelled out of Zimbabwe since her arrest on 4 December 2019. It also did not accept the evidence of specialist neurologist, Mr Makarawo, on his statement that there are no specialists on lymphoedema in Zimbabwe.

It held that the appellant's application was based on inadequate evidence.

The court a quo gave its reasons for dismissing the appellant's application on pp33 to 34 of the record as follows;

“What I have before me by way of applicant's medical condition is one-sided. It is true that first respondent concedes that she is unwell. It is true also that she needs treatment. But that cannot be the end of the matter.

Indeed, papers from her own doctors contain some grey areas. Mr Makarawo first attended to her on 6 November 2020. He diagnosed her with lymphoedema and recommended that she be treated in South Africa because he believes that there are specialists there. I have already rejected his assertion that there are no lymphoedema specialists in Zimbabwe. I have explained why I have done so.

Dr J Van Heeden may have been treating applicant before the later's arrest on 4 December 2019. But, no evidence was presented before me to prove that he or she has attended to her since then. Applicant concedes that she has not travelled out of the country since her arrest. But, in October and November 2020, Dr J Van Heeden is giving a fairly detailed narration of applicant's medical condition and the specialist care required.

Applicant says she sought medical treatment in Zimbabwe post 4 December 2019. She says those efforts have not alleviated her condition. Instead, her health has deteriorated. She has produced neither medical reports nor other medical records to substantiate her assertion that she has failed to obtain the care that she needs in this country. I only have Mr Makarawo's letter, written on 6 November 2020. So there is that gap in the evidence.

Applicant has placed inadequate information before the court to warrant alteration of her bail conditions.

ORDER

In the result, the application is dismissed.”

It is for these reasons that the court a quo dismissed the appellant's application without considering the issue of whether or not it was in the interest of justice to vary the appellant's bail conditions, and, if so, on what conditions.

Aggrieved by the court a quo's decision, the appellant appealed to this Court on grounds of appeal which raise the following issues:

1. Whether the court a quo misdirected its self when it held that the applicant's evidence left gaps which justified the dismissal of her application for variation.

2. Whether, on the evidence on record, it was established that the alteration of bail conditions sought by the appellant is in the interest of justice.

SUBMISSIONS BY THE PARTIES

In view of the lockdown due to Covid-19, I did not call the parties to appear before me to make oral submissions. I however invited their counsels to file Heads of Arguments as provided by Part III paragraph (4) of the Chief Justice's Practice Direction No.2 of 2021.

Counsel for the appellant submitted that the court a quo erred when it dismissed the appellant's application on the basis that the applicant had given the court inadequate information on whether or not there are lymphoedema specialists in Zimbabwe who could treat her locally.

She submitted that the court a quo erred when it relied on the armchair evidence of Dr Magure while disregarding that of neurologist, Mr Makarawo, who had examined the appellant and formed the opinion that her condition required the attention of specialists on lymphoedema in South Africa as there are no specialists on lymphoedema in Zimbabwe.

Counsel for the appellant further submitted that the court a quo also erred by dismissing the application without deciding the issue of whether or not it was in the interest of justice to vary the appellant's bail conditions.

She also argued that the first respondent had alleged that the appellant will abscond if variation is granted as she has roots in South Africa without leading evidence on that aspect.

She, in conclusion, urged this Court to allow the appeal and grant the appellant's application for variation.

Counsel for the first respondent, in response, submitted, that, the court a quo had correctly held that the evidence led by the appellant left the court with inadequate information on whether or not her condition could not be treated locally. She submitted that the evidence led from neurologist, Mr Makarawo, and Dr J Van Heeden, had gaps which left the court with inadequate information.

On the issue of whether or not the State had led evidence on the likelihood of the appellant absconding because she has ties with South Africa, she submitted that it is not a rule of thumb that evidence has to be led in bail applications in rebuttal of what is placed in issue. The written documents and affidavits sufficed.

She further argued that she had, through her written response and in oral argument, urged the court a quo to strike a delicate balance between the two conflicting interests.

She further submitted that the court a quo considered the totality of the evidence and properly dismissed the application.

THE LAW

Section 126 of the Criminal Procedure and Evidence Act provides for the variation of bail conditions. It reads:

“26 Alteration of recognizances or committal of person on bail to prison

(1) Any judge or magistrate who has granted bail to a person in terms of this Part may, if he is of the opinion that it is necessary or advisable in the interests of justice that the conditions of a recognizance entered into by that person should be altered or added to or that that person should be committed to prison, order that the said conditions be altered or added to or commit the person to prison, as the case may be:”…,.

It is clear, from the wording of section 126(1) of the Criminal Procedure and Evidence Act, that, before bail conditions can be altered the judicial officer must be satisfied that it is necessary and advisable in the interests of justice for him to do so.

The key words are “necessary or advisable.”

The use of the word “or” between the words “necessary” and “advisable” introduces two factors which must be considered before bail conditions can be altered.

According to the Oxford Advanced Learner's Dictionary the word “or” is used to introduce another possibility. It is also used in negative sentences when mentioning two or more things.

The court must therefore ask itself if it has been established that the alteration is necessary after which it must also consider whether or not, in the circumstances of the case before it, it is advisable to vary the applicant's bail conditions.

The necessity to vary the conditions must therefore be balanced against whether it is advisable, in the interests of justice, in the circumstances of that case, to vary bail conditions.

If the facts of the case make it not advisable to vary the conditions, a judicial officer can judiciously exercise his/her discretion and dismiss the application.

In considering the interests of justice, the court must take into consideration the applicant's justification of the need for variation and the interest of the proper administration of justice which requires that conditions of bail must be imposed which will ensure that an accused person will remain available to stand trial.

Whether the court a quo, misdirected itself when it held that the applicant's evidence left gaps which justified the dismissal of her application for variation

In her heads of argument, the appellant's counsel submitted that the court a quo misdirected itself when it disbelieved Mr Makarawo's evidence that there are no specialists on lymphoedema in Zimbabwe.

A reading of the record establishes that the court a quo did not disbelieve Mr Makarawo's evidence on the condition of the appellant and her need for a specialist to treat her condition.

It is a well-known fact that doctors refer their clients to specialists if they cannot treat them themselves. It is a notarious fact courts can take judicial notice of.

The court a quo could therefore only disbelieve Mr Makarawo's evidence on the basis of evidence to the contrary being led that there are indeed specialists on lymphoedema in Zimbabwe.

The court a quo said it relied on the evidence of Dr Tsitsi Mildred Magure.

A reading of her evidence establishes that she did not say there are specialists on lymphoedema in Zimbabwe. She, in her statement, said:

“I cannot therefore commit myself to whether we have expertise locally to manage the condition or not without knowing the underlying cause of the lymphoedema. Determination of which expertise is best placed to manage the case depends on the cause and grade of the lymphoedema. Assessment by a multi-disciplinary team might conclude which expert to lead the management.”…,

The questions which the Prosecutor General's office had asked were not answered directly.

The Prosecutor General's office had asked the Ministry of Health, which forwarded the question to Dr Magure:

1. Whether medication and the necessary facilities for its cure are readily available in Zimbabwe; and

2. Whether there are any lymphoedema specialists in Zimbabwe.

Dr Magure's response did not address the question whether medication, and the necessary facilities for its cure, are readily available in Zimbabwe. She also refused to commit herself as to whether or not there are specialists on lymphoedema in Zimbabwe.

Her suggestion, that, a “multi-disciplinary team might conclude which expert to lead the management” suggests that an experiment has to be undertaken to establish which expert can lead the management.

This does not prove that there is readily available medication and the necessary facilities for the cure of lymphoedema in Zimbabwe.

The question whether there are specialists on lymphoedema in Zimbabwe could have been answered by simply saying yes and stating the names of the specialists.

I am therefore satisfied that the court a quo misdirected itself when it preferred the evidence of Dr Magure to that of specialist neurologist Mr Makarawo.

The finding by the court a quo, that Dr Van Hedeen's evidence left a grey area as to when he examined the appellant, cannot be faulted.

It is the duty of an applicant to lead evidence which can satisfy the court and enable it to make a finding in its favour.

The court a quo correctly observed that the appellant had not left Zimbabwe since her arrest on 4 December 2019. The court a quo therefore correctly questioned how Dr Van Hedeen, who lives in South Africa, could have examined the appellant to enable him to give a detail narration of the appellant's current condition.

The court a quo also correctly held that the appellant had not substantiated her claim that she had sought treatment locally in Zimbabwe without success. It observed that no supporting documents were placed before the court in support of that claim, from doctors who were attending to her.

A reading of the record proves that the appellant did not produce such documents.

I am however of the view that the omission was cured by Mr Makarawo's report to the effect that there was gross swelling of the appellant's arms and legs and the first respondent's concession that the appellant is unwell.

That, on its own, is proof that whatever treatment she might have received after her arrest had failed to cure the lymphoedema.

While the court a quo's observation is correct, it is an irrelevant and unnecessary quest for further evidence in circumstances where the first respondent had made a concession.

It is trite that what is not disputed need not be proved.

I therefore agree with counsel for the appellant, that, the appellant had, through the evidence of Mr Makarawo, proved that her condition required a specialist's attention in South Africa where she was receiving treatment before her arrest.

Whether on the evidence on record it was established that the alteration of bail conditions sought by the appellant is in the interest of justice

The interests of justice should consider the appellant's need for treatment in South Africa against the interests of the proper administration of justice.

The appellant merely gave an undertaking that she will come back to stand trial. The first respondent argued that she will abscond as she has roots in South Africa.

The record establishes, that, it is alleged that five (5) of the six (6) charges of contravening section 5(1)(a) of the Exchange Control Act involve the externalisation of foreign currency to South Africa where she is alleged to have used the money to purchase two houses and three motor vehicles. She is alleged to be a sole shareholder of a South African company into whose name the first house was registered. The three motor vehicles she is alleged to have bought are in South Africa - two of them having been registered in her name there. The attempted murder charge occurred in South Africa.

The proper administration of justice involves consideration of the possibility that the appellant is likely to abscond and interfere with witnesses - some of whom live in South Africa.

The question which must be answered is: is it advisable to vary three of her weighty bail conditions especially without their being substituted with other conditions which would dissuade the appellant from absconding?

The court which granted her bail considered it important that she surrender her passports to the Clerk of Court. It also considered it important that she stay at the stated address and periodically present herself at Borrowdale Police station to prove that she will be available to stand trial.

If these three bail conditions are temporally altered, without substitution, they will severely weaken the possibility of her standing trial.

The appellant did not offer any security in substitution of the conditions to be varied.

An applicant for variation, in circumstances where the variation removes the safeguards intended to ensure that he or she will stand trial, must offer to provide other forms of security in substitution of those to be suspended if variation is to be granted.

In this case, the appellant is alleged to have bought two houses in South Africa. She is alleged to have bought three motor vehicles, two of which were registered in her name, in South Africa. She is alleged to be the sole shareholder of her South African company. She is alleged to have furnished one of the houses she bought in South Africa.

The charges preferred against her are serious. They give details which make them strong.

Details of persons who allegedly helped her to externalize foreign currency are given. The Bank which transferred the money which was subsequently diverted is mentioned. The South African Bank and account numbers into which the money was deposited by the Zimbabwean Bank are stated. The details of the houses and motor vehicles she is alleged to have bought with the externalised foreign currency are given.

The strength of the charges preferred against her offers a strong incentive for her to abscond.

These facts make it un-advisable to vary her bail conditions on the mere promise that she will not abscond.

In the case of Chombo v The State HH753-19, the applicant offered to pay additional monetary bail of ZWL$50,000 when he sought the release of his passport to enable him to go to South Africa for medical treatment. When the court indicated hesitation because of the inadequacy of the amount offered he offered title Deeds of his young brother's house against the release of the passport. The court was thus satisfied that it was advisable to order the release of the passport on condition that he surrender title Deeds of the house which surety was to be released to him on his surrendering his passport back to the Clerk of Court.

The commitment to offer additional security swayed the court in finding it advisable to grant the application.

I am therefore satisfied, that, in spite of the court a quo having misdirected itself on some aspects, the appellant failed to satisfy the court that it is advisable to vary her bail conditions on her mere assurance that she will not abscond.

The appeal is dismissed with no order as to costs.

HH196-18 : IGNATIUS CHOMBO vs THE STATE
Ruled By: MUSHORE J

This is an appeal against the refusal of bail (pending trial) in the Magistrates' Court in terms of section 121 of the Criminal Procedure and Evidence Act [Chapter 9:07] on the following grounds:

“1. The Magistrate misdirected himself in law in failing to find that 'compelling reasons' demanded by section 50(1)(d) of the Constitution of Zimbabwe, 2013 had not been established by the State, particularly in that:

1.1 There was neither evidence nor any other basis from which it could be said that appellant was likely abscond;

1.2 There was neither evidence nor any other basis from which it could be said that appellant would interfere with witnesses;

1.3 Reference to 'public outcry' is, in itself, never a compelling reason given that it is the people themselves that entrenched a presumption of innocence in the Constitution;

1.4 The State did not address any of the bail conditions offered by the appellant, thereby failing to discharge the onus thrust upon it by law. A compelling reason is one that remains notwithstanding bail conditions.

2. The decision to deny bail, on the basis of the above grounds, is so outrageous in its defiance of logic or common sense that no reasonable magistrate, applying his/her mind to the facts and conscious of the right to liberty, could ever have reached that conclusion, particularly in that:

2.1. No reasonable magistrate could have failed to find that the bail conditions offered by the appellant overwhelmingly addressed and answered each of the grounds upon which bail could be refused;

2.2. No reasonable Magistrate could have failed to find that the appellant, in the circumstances, met all the requirements set out in law for release on bail.”

The appellant is a former Member of Parliament and Cabinet Minister. He was arrested on 15 November 2017 at his home in Mount Pleasant. He stated that on the night in question, he heard an explosion at around midnight of 14 November 2017 but did not wake up until he had heard the sound of a second explosion which shook his house.

His wife had woken up at the sound of the first explosion upon which she had observed certain persons jumping into the property. The appellant got up to investigate whereupon his bedroom door burst open and 5 to 8 men armed with AK47 rifles burst into the room (who he described as being soldiers), pointed the guns at him, and handcuffed him whilst blindfolding him with his T-shirt.

He stated that the men were dressed in 'military uniform (green camouflage) including shoes.'

The appellant stated that he was forced out of his home, barefooted and blindfolded, and placed lying sideways in a lorry with occupants securing his body, head, and middle to prevent him from wiggling out of the vehicle.

He described that after travelling for about an hour he was interrogated with accusations that he had not run his Ministry (Ministry of Home Affairs) well, with one of the assailants or detainers complaining that the appellant had failed to provide him with a Stand when he was Minister.

He was taken to an undisclosed location and detained there for some days.

He told the court that on the second day of his detention, his captors allowed him to write a note so that they could collect his medication from his home. He also stated that he also requested a shirt and trousers and toiletries. At some point, his captors brought his doctor to attend to him whilst he was so detained.

During his time in captivity, over the next few days, he was interrogated by four to six men about decisions he had taken as Minister of Local Government. He said that he was guarded at all times by two to three people.

He told the court that he was never assaulted by his captors and that they made efforts to meet his requests for provisions because he is diabetic with other illnesses.

The day before he was taken to court, they removed his blindfold and drove him to his home. Upon arrival, the appellant noticed policemen sitting in a car which was parked outside the gate of his house. He told the court that the police who were blocking the entrance to his home, complied with an authoritative request made by his captors for them to move their vehicle out of their way.

His captors dropped him off.

At his house, his abductors allowed him to make a request to his wife to bring him his spectacles. His captors left and the police who were at his house took over and basically ferried him away.

He recalled the specific date of his abduction as being 15 November 2017 because he had attended a Cabinet meeting earlier on the same day. The appellant vehemently denied that he had been arrested on 23 November 2017 which is the date of arrest reflected on the charge sheet. His charge sheet shows that he was arrested on three counts for the following crimes as alleged:

“1. Count One - Section 4 of the Prevention of Corruption Act [Chapter 9:16] - 'Does anything that is contrary to or inconsistent with his duty as a Public Officer.'

2. Count Two - Criminal Abuse of Duty as Public Officer in terms of section 174(1)(a) of the Criminal Law (Codification and Reform) Act [Chapter 9:23].

3. Count Three- Fraud.”

Count One pertained to actions allegedly taken by the appellant in 2004 to 2009. Count Two pertained to alleged criminal acts by the appellant on 13 December 2006 and 25 March 2008. Count Three pertained to a fraud allegedly committed by the appellant between 8 December 2005 to 26 January 2006.

The appellant immediately applied for bail. The State opposed his application on the following grounds:

“1. Considering the seriousness of the offence, and the stipulated sentence if convicted, the accused is likely to abscond so as to evade prosecution.

2. Accused is the former Minister of Local Government who had access and control of the personnel hence the accused is likely to interfere with witnesses.

3. The current political situation is not favourable to the accused's safety. It is therefore proper for the accused to be remanded in custody for his safety.”

The reasons given by the State, both in opposing bail in the court a quo, and in opposing bail on appeal, are not founded in fact.

The court a quo was not furnished with reasons or evidence upon which it could make a determination regarding whether or not the interests of justice would be best served by remanding the appellant into custody.

Section 117(1) and (2) of the Criminal Procedure and Evidence Act [Chapter 9:07] states as follows:

“117 Entitlement to Bail

(1) Subject to this section and section 32, a person who is in custody in respect of an offence shall be entitled to be released on bail at any time after he or she has appeared in court on a charge and before sentence is imposed, unless the court finds that it is in the interests of justice that he or she should be detained in custody.

(2) The refusal to grant bail and the detention of an accused in custody shall be in the interests of justice where one or more of the following grounds are established —

(a) Where there is a likelihood that the accused, if he or she were released on bail, will —

(i) Endanger the safety of the public or any particular person or will commit an offence referred to in the First Schedule; or

(ii) Not stand his or her trial or appear to receive sentence; or

(iii) Attempt to influence or intimidate witnesses or to conceal or destroy evidence; or

(iv) Undermine or jeopardise the objectives or proper functioning of the criminal justice system, including the bail system; or

(b) Where, in exceptional circumstances, there is the likelihood that the release of the accused will disturb the public order or undermine public peace or security.”

No reasons were provided, nor any evidence led in support of the State's grounds for opposing bail. Neither did the court a quo make any enquiry to establish the veracity of the State's reasons for opposing bail, as would have been expected of it, prior to arriving at its determination refusing bail.

The State didn't provide the reason for believing that the appellant would abscond save to just merely allege that the appellant may abscond; neither did it identify which witnesses the appellant was likely interfere with if he was let out on bail.

The court also failed to make an enquiry into the State's allegation that “the current political situation was not favourable to appellant” to the extent that the appellant needed to be remanded in custody.

The State case consisted of mere allegations; and the court misdirected itself in lending credence to those grounds of opposition by simply accepting them without enquiry.

The court a quo grossly misdirected itself in its findings: see Aitken v Attorney-General & Anor v Aitken 1992 (1) ZLR 249 (S); Air Zimbabwe v Phiri 1988 (2) SA 696; S v Ncube 2001 (2) ZLR 556.

The errors and omissions committed by the court a quo, in arriving at its determination to refuse the appellant bail, are so egregious that they warrant me invoking my powers of review in terms of section 27(1)(c) of the High Court Act [Chapter 7:06].

I deem that the proceedings a quo were not in terms of real and substantial justice. The gross errors committed a quo require correcting.

The decision made a quo was unconstitutional to the extent that the court did not observe, as it was obliged to, the provisions of section 50 of the Constitution.

The appellant was subjected to inhumane and undignified treatment at the hands of his captors. He was not informed of the reason for his abduction, at the time that he was arrested in the dead of night at his home, or at any time prior to being brought to court on 23 November 2017.

Contrary to the peremptory provisions of section 50(2)(b) of the Constitution, the appellant was held for far beyond 48 hours in an undisclosed location.

I was troubled by the comments made by the court a quo in remaining complicit with the State's misleading statement that the date of arrest was when the police arrested the appellant, in circumstances where the appellant had been abducted and kept incommunicado by State agents several days before the police 'arrested' the appellant.

It's obvious that the police were in cahoots with the mysterious Sate agents given the fact that they took off where the State agents left off.

The appellant was detained by State agents on 15 November 2017 and only bought before a court of law a whole week later. To that end, the court sanctioned a breach of section 50(5) of the Constitution.

The appellant was kept incommunicado and thus denied his right to remain in communication with family or to consult, in private, with his lawyer or doctor during the period of his detention per section 50(5)(c) of the Constitution:

“(5) Any person who is detained, including a sentenced prisoner, has the right —

(a) To be informed, promptly, of the reason for their being detained;

(b) At their own expense, to consult, in private, with a legal practitioner of their choice, and to be informed of this right promptly;

(c) To communicate with, and be visited by —

(i) A spouse or partner;

(ii) A relative;

(iii) Their chosen religious counsellor;

(iv) Their chosen legal practitioner;

(v) Their chosen medical practitioner; and

(vi) Subject to reasonable restrictions imposed for the proper administration of prisons or places of detention, anyone else of their choice;

(d) To conditions of detention that are consistent with human dignity, including the opportunity for physical exercise and the provision, at State expense, of adequate accommodation, ablution facilities, personal hygiene, nutrition, appropriate reading material, and medical treatment; and

(e) To challenge the lawfulness of their detention in person before a court, and, if the detention is unlawful, to be released promptly.”

When looking at the reasoning of the court a quo, in denying the appellant bail, it is my overall view that the court a quo got swept up by the sensationalism of the case and allegations surrounding the appellant's arrest.

The Magistrate lost sight of the fact that she was seized with an ordinary application for bail because she did not deliberate upon the meaning and intention behind section 50(1) of the Constitution which reads:

“50 Rights of arrested and detained persons

(1) Any person who is arrested —

(a) Must be informed, at the time of arrest, of the reason for the arrest;

(b) Must be permitted, without delay —

(i) At the expense of the State, to contact their spouse or partner, or a relative or legal practitioner, or anyone else of their choice; and

(ii) At their own expense, to consult, in private, with a legal practitioner and a medical practitioner of their choice; and must be informed of this right promptly;

(c) Must be treated humanely and with respect for their inherent dignity;

(d) Must be released unconditionally, or on reasonable conditions, pending a charge or trial, unless there are compelling reasons justifying their continued detention; and

(e) Must be permitted to challenge the lawfulness of the arrest in person before a court and must be released promptly if the arrest is unlawful.”

The arrest and detention of the appellant were, in my view, illegal.

The unfortunate and illegal actions which preceded the appellant's appearance before the court a quo, and which illustrate the manner by which the appellant was dealt with by State agents and the police, ran afoul to the presumption of innocence weighing in his favour.

However, as appalling as his treatment was, I am mindful of the fact that the charges would still not have been tainted: see Jestina Mukoko v Attorney General 2012 (1) ZLR 117 (SC).

The appeal before me is for bail pending trial.

In my view, this is a proper case for setting aside the decision of the court a quo on the basis that the court a quo grossly erred in denying the appellant bail.

Accordingly, I order as follows:

1. The appeal succeeds.

2. The appellant be and is hereby admitted to bail on the following conditions stated hereunder:

(a) The appellant deposits an amount of US$5,000 with the Clerk of Court, Harare Magistrates' Court.

(b) The appellant to reside at 847 Golden Stairs, Mt Pleasant, Harare.

(c) The appellant to report three times a day one between the hours of 6am to 10am; 1am to 2pm; 4pm–6pm at Marlborough Police Station, Harare.

(d) The appellant to surrender title deeds to his residential property.

(e) The appellant to surrender his passport and any other travel documents he may possess.

(f) The appellant is not to interfere with witnesses or tamper with evidence.

(g) The appellant is not to visit the offices of the Ministry of Local Government and those of the Reserve Bank of Zimbabwe.

HB06-15 : KELVIN SIBANDA vs THE STATE
Ruled By: MAKONESE J

In applications of this nature, the courts will lean in favour of granting bail where the following factors are established:(a) The interests of justice will not be prejudiced.(b) There is no danger of the applicant absconding to avoid standing trial.See the case of S v Fourie 1973 (1) SA 110....,.In ...

HB13-15 : MAYIBONGWE BANDA vs THE STATE
Ruled By: MAKONESE J

The bail principles are well set out in section 117(2)(a)(ii) of the Criminal Procedure and Evidence Act [Chapter 9:07].The refusal to grant bail, and the detention of an accused in custody, shall be in the interests of justice if it is established that the accused will not stand trial. In ...

HB15-15 : BLESSING NHAMO vs THE STATE
Ruled By: MAKONESE J

In the matter of S v Nhlovu 2001 (2) ZLR 261, the learned judge, NDOU J, stated…, as follows:“The primary question to be considered is whether the applicant will stand trial or abscond. Of equal importance is whether he will influence the fairness of the trial by intimidating witnesses or ...

HH254-12 : DAVID CHIMUKOKO and GRACIANO KAZINGIZI and BIGGIE OFFICE and RAPHEL BOBO and PERKINS KARIKOGA and PHILLIP KATSANDE and ERICK CHATIZA vs THE STATE
Ruled By: MWAYERA J

Section 117(1) of the Criminal Procedure and Evidence Act [Chapter 9:07] reads:“Subject to this section and section 23, a person who is in custody in respect of any offence shall be entitled to be released on bail at any time after he or she had appeared in court on a ...

Section 117(1) of the Criminal Procedure and Evidence Act [Chapter 9:07] reads:

“Subject to this section and section 23, a person who is in custody in respect of any offence shall be entitled to be released on bail at any time after he or she had appeared in court on a charge and before sentence is imposed unless the court finds that it is in the interest of justice that he or she be detained in custody.”

The use of the word shall be entitled to bail, in my view, denotes, that, where possible, the court should lean in favour of the liberty of the individual provided the interest of justice is protected by such a decision.

Section 117 of the Criminal Procedure and Evidence Act clearly spells out, that, an accused person is entitled to bail unless the court finds that it is in the interest of justice that an accused person should be detained in custody. The detention can be in the interest of justice if one or more factors mentioned in section 117(2)(a) and (b) of the Criminal Procedure and Evidence Act is or are established against him.

Section 117(2)(a)–(b) of the Criminal Procedure and Evidence Act reads:

“(a) Where there is a likelihood that the accused, if he or she were released on bail, will;

(i) Endanger the safety of the public or any particular person or will commit an offence referred to in the First Schedule; or

(ii) Not stand his or her trial or appear or receive sentence; or

(iii) Attempt to influence or intimidate witnesses or to conceal or destroy evidence; or

(iv) Undermine or jeopardise the objectives or proper functioning of the criminal justice system including the bail system; or

(b) Where, in exceptional circumstances, there is the likelihood that the release of the accused will disturb the public order or undermine public peace or security.”

Subsection 3(a)–(e) goes on to outline some factors, among others, which the court may take into account on determining whether or not the applicant is a suitable candidate for bail.

If one or more factors alluded to in section 117(2) of the Criminal Procedure and Evidence Act are established, then, the applicant ought not to be released on bail; if, on the other hand, such factors are not established, then, the applicant ought to be admitted to bail.

The court must therefore endeavour to seek to establish a balance between the interest of administration of justice and the individual liberty.

In Attorney General v Phiri 1987 (2) ZLR 33, REYNOLDS J lucidly underscored that the fundamental principle governing the court's approach to applications for bail is that of upholding the interest of justice.

This requires the court, as expeditiously as possible, to fulfil its function of safeguarding the liberty of the individual while at the same time protecting the interest of justice.

The questions that are to be considered are; whether the applicant will stand or evade trial; whether or not the applicant will interfere with witnesses or investigations; whether or not the applicant will commit other offences; and whether or not release will endanger public peace and security, to name but a few.

HB51-15 : NQOBILE NYONI vs THE STATE
Ruled By: MOYO J

In S v Makamba SC30-04, it was held, that, if the affidavit of the investigating officer raises a prima facie case against the accused, in such circumstances, an applicant would be expected, in attempting to discharge the onus on him, to either deny the allegations, or to place before the ...

HMT05-19 : MUNYARADZI KARIMBA vs THE STATE
Ruled By: MWAYERA J

In applications for bail pending trial, the court has to seek to strike a balance between the constitutionally guaranteed right to liberty and the societal interests that the matter be prosecuted to its logical conclusion, or, put differently, the societal interests that the interests of administration of justice is upheld....,.Section ...

HMT59-19 : NOREST CHIGWADA vs THE STATE
Ruled By: MUZENDA J

On 19 July 2019, the applicant applied for bail pending appeal seeking the following relief:

“IT IS ORDERED THAT:

1. The bail pending appeal be and is hereby granted on the following conditions:

(i) Applicant deposits cash in the sum of RTGS$100 to the Clerk of Court, Rusape.

(ii) Report once to Glen View Police Station on the last Friday of each month until the determination of the Appeal.

(iii) The Applicant is to reside at 7252, 96th Crescent, Glen View Area 8, Harare, until the determination of the Appeal.”

The bail application appeal is opposed by the State.

BACKGROUND FACTS

On 11 June 2019, the applicant was arraigned at Rusape for rape as defined in section 65 of the of the Criminal Law (Codification and Reform) Act [Chapter 9:23] where the State alleged, that, on 8 September 2018, and at Tsikada Primary School Bus Stop, the applicant unlawfully had sexual intercourse with X, a female person without her consent knowingly or realising that there was a real risk or possibility that X may have not consented.

According to the State summary, the applicant is employed by Mwayera Buses as a conductor and the complainant, X, is aged 16 years and resides at Village 13A Chinhenga.

The applicant and the complainant are not related.

On 8 September 2018, at around 0800 hours, the complainant boarded one of Mwayera buses from Harare going to Chinhenga with the applicant as the conductor. The applicant then went to share the same seat with the complainant, and, on their way, the applicant proposed love to the complainant; complainant turned down the proposal stating that the applicant was married.

The bus reached Tsikada Bus Terminus where the complainant got off to relieve herself together with another woman unknown to the complainant.

After about two minutes, the applicant followed the complainant and ordered the woman to go back into the bus as he wanted to talk to the complainant.

The applicant then further asked the complainant to consider her response to his proposal.

The complainant remained with her rejection and that is when the applicant pushed the complainant against a sign post, pressed her against it denying her any movement, forcibly removed the complainant's pant from underneath her skirt, produced his erect penis, and had sexual intercourse once with the complainant without her consent.

During the act, the complainant screamed, but, no one heard her as there were some noise from the two buses which were at the terminus.

The complainant managed to push away the applicant and returned to the bus but did not disclose the matter to anyone.

The applicant returned to his seat in the bus and told the complainant that he was going to marry her if she fell pregnant.

On 10 September 2018, the complainant made a report to her school teacher, Mrs Dodzo, who then made a report to the Headmaster, then to the police.

The applicant was subsequently found guilty, after trial, and sentenced to 10 years imprisonment of which 3 years imprisonment was suspended for 5 years on the usual conditions of future good behaviour.

On 14 June 2019, he filed an appeal against conviction only.

Now, he is applying for bail pending that appeal.

APPLICATION

In his application for bail pending appeal, the applicant contends, that, he is a good candidate for bail because, according to him, there are good prospects of success against conviction.

There is a good likelihood of delay before the appeal could be heard and he is not going to abscond.

He adds, that, he has an arguable case on appeal because the Regional Magistrate failed to place due weight on the material inconsistencies in the complainant's evidence and highlighted the evidence he perceives the complainant faired poorly.

The applicant pointed out, that, the court should have mero motu ordered an inspection in loco and also further pursued the applicant's alibi, which was belatedly raised during cross-examination of the applicant by the State and not contained in the Defence Outline.

The applicant is unlikely to abscond in light of the strong prospects of success on appeal.

The applicant admits, that, the presumption of innocence is no longer operative after the conviction and sentence; however, there is no cognizance that the applicant will abscond.

The State, on the other hand, submitted, that, the onus is upon the applicant to satisfy the court that his admission to bail will not prejudice the administration of justice.

The applicant has no affidavit statement applying for bail pending appeal.

The State urged the court to conclude, that, there is no application before the court because of the failure to attach an affidavit signed by the applicant.

It went on further to contend, that, there are no prospects of success on appeal.

The grounds of appeal filed by the applicant lack specifics and clarity; it amounts to no appeal.

Due to the sentence passed on the applicant, if the applicant is granted bail is likely to default.

There is no delay in the appeal being heard since the record of proceedings is ready for setting down.

The State supported the medical report and dismissed the applicant's argument on the alleged inconsistencies of the complainant.

In the view of the State, the inspection in loco was not necessary.

On the issue of alibi, the State submitted, that, the applicant failed to raise the defence of alibi - he did not.

THE LAW

In S v Manyange 2003 (1) ZLR 21 at 218 MAKARAU J…, held that:

“In an application for bail pending appeal, as distinct from bail pending trial, the presumption of innocence is inoperative, and, for his application to succeed, an application must show that there are positive reasons why bail should be granted. It is not enough for the applicant to show that he has reasonable prospects of success on appeal, he must go further and establish that there are positive grounds for granting him bail pending appeal and that the granting of bail will not endanger the interests of justice. The onus is on him to tip the balance in his favour.”

At p21F, the Learned Judge further held:

“…, it was not enough for the applicant simply to point to some inadequacies in the State case; he had to show, that, in addition to his prospects of success on appeal, the interests of justice would not be endangered if he was granted bail.”

In S v Labuschagne 2003 (1) ZLR 644 GWAUNZA JA…, held on p644 D-F:

“…,. That the mere fact that leave to appeal has been granted does not, per se, entitle a convicted person to be allowed out on bail. The onus of establishing that justice will not be endangered and that there is a reasonable prospect of success is upon the applicant. It is improper to allow people convicted of serious crimes to be walking in the streets instead of serving their sentences when the prospects of success are non-existent. Society would lose faith in the system and revolt.

Further, that, on the evidence, the applicant had not proved that there were positive grounds for granting him bail pending appeal. He had not discharged the onus of establishing that justice would not be endangered and that there was a reasonable prospect of success.”

ANALYSIS

In its response to the application, the State pointed out, correctly, that, the applicant in this matter failed to file an affidavit in support of the application for bail pending appeal.

The court has noted with concern the practice by legal practitioners to file what is termed “Applicant's Statement.”

The Statement contains case law authorities decided in South Africa and Zimbabwe and a brief summary for the grounds upon which the application is premised.

The applicant's Statement nor affidavit is not attached.

This procedure is not proper in my view. The applicant must sign a statement or affidavit that would form the evidence to be relied upon by the applicant in the application.

Where there is no affidavit, there is properly no application to talk of: see S v Labuschagne 2003 (1) ZLR 644.

The applicant would have failed to discharge the onus bestowed upon him.

In this case, the court condoned that omission in the interests of justice and proceeded to hear the matter on the merits.

It should also be pointed out, that, it is improper to combine case law authorities in a Statement purportedly filed on behalf of the applicant.

If the applicant wishes to address the court on the points of law on bail, he should do so from the Bar or file separate heads of argument divorced from the Statement or affidavit prepared on behalf of the applicant.

HMT61-19 : POLITE ZIMUNYA vs THE STATE
Ruled By: MWAYERA J

The applicant is presumed innocent till proven guilty by a competent court of law and such an applicant is entitled to bail, as a matter of right, unless there are compelling reasons why such applicant ought not to be admitted to bail.Section 50 of the Constitution is instructive: see State ...

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Bail re: Approach iro Approach to Bail Hearings and Rules of Evidence in Bail Proceedings

HH424-18 : ANESU MOREBLESSING NYAMUTATA vs THE STATE
Ruled By: CHITAPI J

HH469-16 : BERNARD CHIWENGA vs THE STATE
Ruled By: CHIGUMBA J

SC04-21 : MARRY MUBAIWA-CHIWENGA vs THE STATE and NATIONAL PROSECUTING AUTHORITY and CRIMINAL CLERK OF COURT, ROTTEN ROW MAGISTRATES COURT
Ruled By: MAVANGIRA JA

View Appeal HH16-21 : CAINOS CHINGOMBE vs THE STATE
Ruled By: CHIKOWERO J

SC17-21 : MARRY MUBAIWA CHIWENGA vs THE NATIONAL PROSECUTING AUTHORITY and THE CLERK OF COURT ROTTEN ROW MAGISTRATE'S COURT
Ruled By: UCHENA JA

HH196-18 : IGNATIUS CHOMBO vs THE STATE
Ruled By: MUSHORE J

HB06-15 : KELVIN SIBANDA vs THE STATE
Ruled By: MAKONESE J

HB13-15 : MAYIBONGWE BANDA vs THE STATE
Ruled By: MAKONESE J

HB15-15 : BLESSING NHAMO vs THE STATE
Ruled By: MAKONESE J

HH254-12 : DAVID CHIMUKOKO and GRACIANO KAZINGIZI and BIGGIE OFFICE and RAPHEL BOBO and PERKINS KARIKOGA and PHILLIP KATSANDE and ERICK CHATIZA vs THE STATE
Ruled By: MWAYERA J

HB51-15 : NQOBILE NYONI vs THE STATE
Ruled By: MOYO J

HMT05-19 : MUNYARADZI KARIMBA vs THE STATE
Ruled By: MWAYERA J

HMT59-19 : NOREST CHIGWADA vs THE STATE
Ruled By: MUZENDA J

HMT61-19 : POLITE ZIMUNYA vs THE STATE
Ruled By: MWAYERA J

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Law Portal Zimbabwe

Bail re: Approach iro Approach to Bail Hearings and Rules of Evidence in Bail Proceedings

HH424-18 : ANESU MOREBLESSING NYAMUTATA vs THE STATE Ruled By: CHITAPI J

HH469-16 : BERNARD CHIWENGA vs THE STATE Ruled By: CHIGUMBA J

SC04-21 : MARRY MUBAIWA-CHIWENGA vs THE STATE and NATIONAL PROSECUTING AUTHORITY and CRIMINAL CLERK OF COURT, ROTTEN ROW MAGISTRATES COURT Ruled By: MAVANGIRA JA

View Appeal HH16-21 : CAINOS CHINGOMBE vs THE STATE Ruled By: CHIKOWERO J

SC17-21 : MARRY MUBAIWA CHIWENGA vs THE NATIONAL PROSECUTING AUTHORITY and THE CLERK OF COURT ROTTEN ROW MAGISTRATE'S COURT Ruled By: UCHENA JA

HH196-18 : IGNATIUS CHOMBO vs THE STATE Ruled By: MUSHORE J

HB06-15 : KELVIN SIBANDA vs THE STATE Ruled By: MAKONESE J

HB13-15 : MAYIBONGWE BANDA vs THE STATE Ruled By: MAKONESE J

HB15-15 : BLESSING NHAMO vs THE STATE Ruled By: MAKONESE J

HH254-12 : DAVID CHIMUKOKO and GRACIANO KAZINGIZI and BIGGIE OFFICE and RAPHEL BOBO and PERKINS KARIKOGA and PHILLIP KATSANDE and ERICK CHATIZA vs THE STATE Ruled By: MWAYERA J

HB51-15 : NQOBILE NYONI vs THE STATE Ruled By: MOYO J

HMT05-19 : MUNYARADZI KARIMBA vs THE STATE Ruled By: MWAYERA J

HMT59-19 : NOREST CHIGWADA vs THE STATE Ruled By: MUZENDA J

HMT61-19 : POLITE ZIMUNYA vs THE STATE Ruled By: MWAYERA J

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Zimbabwe

HH424-18 : ANESU MOREBLESSING NYAMUTATA vs THE STATE
Ruled By: CHITAPI J

HH469-16 : BERNARD CHIWENGA vs THE STATE
Ruled By: CHIGUMBA J

SC04-21 : MARRY MUBAIWA-CHIWENGA vs THE STATE and NATIONAL PROSECUTING AUTHORITY and CRIMINAL CLERK OF COURT, ROTTEN ROW MAGISTRATES COURT
Ruled By: MAVANGIRA JA

View Appeal HH16-21 : CAINOS CHINGOMBE vs THE STATE
Ruled By: CHIKOWERO J

SC17-21 : MARRY MUBAIWA CHIWENGA vs THE NATIONAL PROSECUTING AUTHORITY and THE CLERK OF COURT ROTTEN ROW MAGISTRATE'S COURT
Ruled By: UCHENA JA

HH196-18 : IGNATIUS CHOMBO vs THE STATE
Ruled By: MUSHORE J

HB06-15 : KELVIN SIBANDA vs THE STATE
Ruled By: MAKONESE J

HB13-15 : MAYIBONGWE BANDA vs THE STATE
Ruled By: MAKONESE J

HB15-15 : BLESSING NHAMO vs THE STATE
Ruled By: MAKONESE J

HH254-12 : DAVID CHIMUKOKO and GRACIANO KAZINGIZI and BIGGIE OFFICE and RAPHEL BOBO and PERKINS KARIKOGA and PHILLIP KATSANDE and ERICK CHATIZA vs THE STATE
Ruled By: MWAYERA J

HB51-15 : NQOBILE NYONI vs THE STATE
Ruled By: MOYO J

HMT05-19 : MUNYARADZI KARIMBA vs THE STATE
Ruled By: MWAYERA J

HMT59-19 : NOREST CHIGWADA vs THE STATE
Ruled By: MUZENDA J

HMT61-19 : POLITE ZIMUNYA vs THE STATE
Ruled By: MWAYERA J