The applicant was arrested on 19th October 2015
on a charge of murder in contravention of section 47 of the Criminal Law
(Codification and Reform) Act [Chapter 9:23], it being alleged that on 18th
October 2015, at Bemba Primary School, Tsholotsho, the applicant, who is
employed as a school teacher, assaulted and hit the deceased several times with
an axe handle and sjambok on suspicion of infidelity.
The deceased was the accused's girlfriend at the material
time. The deceased died on the spot as a result of injuries sustained in the
assault.
In terms of section 117(1) of the Criminal Procedure and
Evidence Act [Chapter 9:07], bail is granted at the discretion of the court
where it is satisfied that the release of the applicant will not jeopardize or
prejudice of the interests of justice.
It is trite that an accused person is presumed innocent
until proven guilty.
The applicant denies the allegations of murder. He admits
that he assaulted her with fists and open hands all over the body. He claims,
in his bail statement, that he only became aware of the death of the deceased
the following day when he was alerted by a fellow teacher.
Bail is opposed by the State, and an affidavit of Patrick
Mbengo, the investigating officer, sets out the basis upon which bail is being
opposed. The affidavit is in the following terms:
“1. I am a duly attested member of the Zimbabwe Republic
Police currently stationed at ZRP, Tsholotsho doing investigation duties.
2. I am the investigating officer in a case of murder which
occurred at Bemba Primary School, Tsholotsho on the 18th October
2015 in which Obed Ncube assaulted Sarudzai Mutuma to death.
3. Allegations are that accused assaulted the now deceased
with open hands several times on the face, with a sjambok, and axe handle, after
accusing the now deceased of having an affair with an unknown boyfriend.
4. I wish to oppose bail, being that:-
(a) The accused person may interfere with State witnesses.
The accused works at the same school with witnesses and investigations are
still underway.
(b) He is likely to abscond given that he escaped from the
scene after committing the offence.
(c) He is facing serious allegations which go with a severe
sentence upon conviction.”
In S v Makamba SC30-04,
the court stated that the primary considerations in a bail application are:-
(i) Whether the applicant will stand trial in due course
(likelihood to abscond).
(ii) Whether the applicant will interfere with
investigations of the case against him or tamper with prosecution witnesses
(likelihood to interfere with witnesses).
(iii) Whether the applicant will commit other offences
while on bail (propensity to commit further offences).
(iv) Other considerations which the court may consider good
and sufficient.
With regards the first ground (the likelihood to abscond),
it has been recognized in our law that it is a fundamental requirement for the
proper administration of justice that an accused person should stand trial. If
there is an indication that the accused will not stand trial if released on
bail, the court will secure the needs of justice by refusing to grant bail.
See the case of S v Fourie 1973 (1) SA….,.
It is not disputed that upon committing the offence, the
accused fled the scene.
The investigating officer explained, in a supplementary
affidavit, that when he attended the crime scene the accused could not be
located. The accused was called on his mobile and indicated to the
investigating officer that he was in the vicinity of the school premises and
was coming to hand himself over. The accused did not turn up as promised and
was arrested later in the day by villagers, who included members of the
Neighbourhood Watch Committee - some 15 to 20 kilometres from the school.
It is my view that the conduct of the accused indicates
that he was absconding from the scene. It were the villagers who apprehended
the accused and handed him over to the police. There exists therefore a strong
possibility that the accused, if granted bail pending trial, is likely to
abscond to avoid standing trial. The
applicant had the tenacity to mislead the police by informing them that he was
going to surrender himself and yet, in reality, he was attempting to flee.
In the Form 242 (Request for Remand Form), the applicant
gave his address as House Number 16065, Nkulumane, Bulawayo. In his bail
statement he states that “…, he ordinarily resides at House Number 1611, New
Magwegwe and only went there to visit as the property was owned by a cousin.
With regards the Nkulumane address, the investigating officer was told by the
owner, one Florence Sithole that the applicant used to reside there but moved
out in 2013, purportedly to Pumula suburb.
It stands to reason that the applicant has not been candid
with the court.
He is facing a serious offence and his conduct soon after
the commission of the offence clearly shows that he is a flight risk. It is my
conclusion that the applicant is not a suitable candidate for bail pending
trial.
It is for the above reasons that the application
for bail pending trial was dismissed.
