All the
accused persons are Congolese refugees….,.
The
State opposed bail on the basis that the accused are of no fixed abode. It was
submitted that the accused had given their friends' addresses as their own
residential addresses. It was further argued that the accused were likely to
interfere with investigations as the minor's parents or guardian were unknown.
The
respondents, in unison, vouched that they will not interfere with
investigations. Thereafter, the record reads as follows:
“By Court
Q. Where
do you reside?
R.
A.
A1 - 38 Desmond Rd.
A2
- 3. 56 Airport Rd, Hatfield.
A4
& A5 Tongogara Refugee Camp.
A6
- 54 St Andrews, Hatfield.
A7
& 8 - 3 Logan Crescent, Hatfield.
Ruling
The
reasons advanced by the State were not substantiated in any way. Therefore, all
accused, in the Court's view, are suitable candidates for bail. Bail is
therefore granted (See cover for conditions).
1.
To deposit USD10= bail each.
2.
To reside at their given addresses.
3.
Not to interfere with witnesses.
4.
To surrender travel documents.
5.
To report once a week, on Friday, between 6am and 6pm, at Hatfield police
station.”
The State
has now appealed against the magistrate's decision on the grounds that:
1.
Respondents are likely to interfere with witnesses;
2.
Respondents are facing serious allegations and are likely to abscond; and
3.
They are of no fixed abode.
In
elaboration of the State's appeal, counsel for the appellant argued that the magistrate
had dealt with the application in the most perfunctory manner without carrying
out a proper enquiry to enable him to make a just and informed decision.
At
the appeal hearing, there was a suggestion that the respondents may have
deserted from Tongogara Refugee Camp in Chipinge. There was also a suggestion
from counsel for the respondents that the complainant has now been placed in a
place of safety such that it is now highly unlikely that the respondents can
interfere with her.
An
examination of the record of proceedings shows that when giving their
particulars to the police, the fourth and fifth respondents indicated that they
resided at Number 56 Airport Road, Hatfield whereas in court they told the
presiding magistrate that they resided at Tongogara Refugee camp. The first
respondent gave his residential address as 38 Desmond Rd without specifying the
location in which that number is located; yet the presiding magistrate failed
to notice that such an address could not be located.
At
the appeal hearing, we were told, without any contradiction, that all the
respondents are recognised refugees based at Tongogara Camp. They are required
to fill in a log book each time they leave the camp. It appears, therefore,
that their movements in and out of Tongogara Refugee Camp are regulated.
Section 12(2) of the Refugees Act [Chapter 4:03] empowers the responsible
minister to regulate and designate places where refugees may stay. It provides
that:
“(2)
The Minister may, by notice published in the Gazette, designate places and areas in Zimbabwe within which all
-
(a) Recognized refugees and protected
persons; and
(b) Persons who have applied in terms
of section seven for recognition as refugees; and
(c) Members of the families of persons
referred to in paragraph (b);
or any
classes thereof, as may be specified in the notice, shall live.”
As
things stand, we do not know whether the respondent lawfully left Tongogara
Camp and whether they can lawfully reside at the addresses given outside
Tongogara Refugee Camp.
It
appears to me that, indeed, the presiding magistrate does not appear to have
put much thought into his work before making the order. If the fourth and fifth
respondents are indeed resident at Tongogara Refugee Camp in Chipinge it
boggles the mind why they were made to report at Hatfield police station
weekly. With the current economic hardships can it honestly be said that they
will be able to meet that bail condition without any difficulty. The sincerity
of the respondents in opting to report at Hatfield police station from Chipinge
is questionable….,.
In
this case, it can hardly be said that the ends of justice to ensure that the
respondents would not abscond were catered for.
As
I have demonstrated above, there are too many gaping holes which the court
could have filled in by making simple enquiries. The respondents, being foreign
refugees, the court ought to have at least verified the respondent's
residential addresses before granting them bail. This was important in the face
of the State's submission that the respondents were of no fixed abode.
It
is trite that the onus in a bail application rests with the applicant to prove,
on a balance of probabilities, that he is a good candidate for bail. In this
case, the onus rested with the respondents but they were severely handicapped
in that they were in captivity in a foreign land - without legal
representation. Granting the applicants bail in the absence of vital
information was not doing them a favour because it rendered them vulnerable on
appeal. This again brings me to the need to remind magistrates of their duty to
the unrepresented accused person. Judicial work is a painstaking job which
calls for unwavering dedication to duty. Taking the easy way out as happened in
this case is often not the answer. Such a disposition can easily compromise the
ends of justice either way. Seeing that the accused were in custody, and
without legal representation, it was incumbent upon the court to call for the
verification of the respondents' given residential addresses. It is therefore
not surprising that both counsel are agreed that the presiding magistrate
appears to have hastily made his determination without the full facts having
been placed before him. For instance, we do not know whether or not the
respondents can lawfully reside at their given addresses outside the designated
refugee camp. We do not know whether the respondents deserted Tongogara Refugee
Camp. These facts can easily be verified from the camp administrators or the
High Commissioner for Refugees - so we were told at this appeal hearing.
According
to the dictum in R v Heerworth 1928 AD 265, a judicial officer must not only
ensure that justice is done but that it is seen to be done.
In
this case, it cannot be said that justice was done and seen to be done when the
presiding officer took the easy way out and granted bail in the absence of
vital information which was readily available by way of a simple enquiry. As a
result of the magistrate's failure to make the necessary enquires, we do not
know whether the abused child is now in a safe place such that it can no longer
be interfered with. We do not know whether the residents at the given addresses
outside Tongogara Refugee Camp are willing to accommodate the respondents. We
do not know the whereabouts of the witness allegedly intimidated by the
respondents and what safeguards, if any, can be put in place to ensure that her
own safety and the ends of justice are not compromised.
For
the foregoing reasons, and more, both counsel are agreed that the ends of
justice can only be met by quashing the proceedings in the Magistrates Court to
facilitate a proper enquiry before a fair and just decision can be made. I
believe this can be done by the court invoking its review powers. It is
accordingly ordered:
1.
That the proceedings in the Magistrates Court, sitting at Harare on the 1st
April 2009, be and are hereby quashed and set aside.
2.
That the matter be and is hereby remitted to the Magistrates Court for a fresh
hearing and determination.
