Bail
Application
MAKONESE
J: The
Applicant is facing a charge of contravening section 126 of the
Criminal Law (Codification and Reform) Act [Chapter 9:23], “robbery.”
The
allegations are that on the 10th
day of June 2014 and at the intersection of Ardleigh and Chelmsford
Roads, Matsheumhlope, Bulawayo, the Applicant together with two other
co-accused persons whilst armed with a wheel spanner and knife
intentionally used violence or threats of immediate violence in order
to induce the complainant Noel Matsvangire to relinquish control of
his motor vehicle, namely a Honda Fit.
The
state alleges that in furtherance of his criminal objectives the
Applicant and his co-accused and acting in common purpose together
with two accomplices still at large, proceeded to Waverly Night Club
in Lobengula Street.
The
first accused approached the complainant pretending that they wanted
to hire his motor vehicle to their residence near the National
University of Science and Technology. They paid the complainant the
sum of $10 before driving off to their intended destination. The
Applicant and another accused followed behind in a Blue Mazda Demio.
On
reaching Chelmsford road in Matsheumhlope the Applicant and his
accomplices ordered the complainant to stop the motor vehicle as one
of them wanted to relieve himself. Whilst parked the accused persons
suddenly grabbed the complainant by the neck and threatened to
assault him with the wheel spanner. One of them produced a knife and
threatened to stab the complainant.
The
complainant was robbed of a cellphone and cash. They robbed the
complainant of his Honda Fit motor vehicle, dumped him and drove off.
The
state alleges that Applicant and his accomplices drove the stolen car
to Kensington area where they stripped the engine, gear box and
wheels amongst other vehicle parts.
On
6th
January 2015 one of the accused persons, Dereck Nkala was arrested
and implicated the Applicant.
The
Applicant flatly denies the allegations and says he was nowhere near
the scene of the crime on the day in question. He further contends
that he was wrongly implicated by Dereck Nkala after he was assaulted
by the police.
Applicant
admits that the Honda Fit motor vehicle was recovered at a house near
his grandfather's plot in Kensington.
He
avers that the presumption of innocence operates in his favour and
that he is entitled to bail pending trial.
Applicant
points out that the police have completed their investigations and
therefore there is no danger of interference with state witnesses.
The
application for bail is opposed by the state on the grounds that the
state has a strong prima
facie
case against the Applicant. Further the Applicant's finger prints
were uplifted from the crime scene and matched those taken from the
Applicant.
The
state's view is that the likelihood of the Applicant absconding are
high given the fact that if convicted, the accused faces a long
custodial sentence.
I
do accept the established principle that the seriousness of an
offence on its own is not sufficient ground to deny the Applicant
bail pending trial. However, the strength of the state case is an
important consideration in applications for bail.
In
the instant case the accused has proffered a bare denial as his
defence.
Whilst
in a bail application the Applicant is not on trial I cannot ignore
the strength of the allegations against the Applicant.
As
a general rule robbery cases of this nature attract lengthy prison
sentences in the event of a conviction. Granting the Applicant bail
given the circumstances of the offence as outlined above is likely
result in the Applicant being induced to abscond to avoid standing
trial.
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 considering whether this ground is
established section 117(3)(b)(ii) of the Criminal Procedure and
Evidence Act requires that the court take into account the following
factors:
(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 likely penalty
therefore.
(v)
the strength of the case for the prosecution and the corresponding
incentive of the accused to flee.
(vi)
the efficiency of the amount or nature of bail and enforceability of
any bail conditions.
(vii)
any other factor which in the opinion of the court should be taken
into account.
In
applications for bail pending trial the courts are inclined to lean
in favour of the granting of 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 State
v Fourie
1973 (1) SA 110.
In
the matter of Norman
Mpofu v The State
HH63/08, MAKARAU (JP) expressed the view that our courts generally
adopt the approach that the more serious the offence, the greater
becomes the flight risk on the part of the accused.
In
the circumstances, I am satisfied that having regard to the
circumstances of the case and the strength of the state case, the
Applicant is not a proper candidate for bail.
In
the result application is hereby dismissed.
T.
J Mabhikwa and Partners,
applicant's legal practitioners
National
Prosecuting Authority,
respondent's
legal practitioners
