CHITAKUNYE
J: The applicants, namely Concillia Chinanzvavana, Fidelis Mujabuki Chiramba,
Violet Mupfuranhehwe, Collen Mutamagau, Manuel Chinanzvavana, and Pieta Kaseke,
applied for bail pending trial. The respondent opposed the application and
raised a point in limine contending
that the application was not properly before this court as the applicants had
not been formally placed on remand.
The
basic facts were that the applicants were taken to the magistrates' court on 24
December 2008. The applicants challenged their appearance in court before
remand proceedings were conducted, on the basis that they stood released by
virtue of an order issued by Justice HUNGWE on 11 November 2008 in HC 6420/08. On
25 December 2008 Justice OMERJEE had
also granted an order at the instance of the applicants basically enforcing
HUNGWE J's order of 11 November 2008. The respondent appealed against the order
by Justice OMERJEE.
The
respondent in the meantime was pressing for the applicants to be placed on
formal remand but applicants were resisting.
It is in those
circumstances that the respondent raised the point in limine when applicants applied to this court for bail pending
trial.
The issues for
determination as admitted by counsel for both sides are:-
(1)
at what point can an application for bail pending trial
be properly made before this court and
(2)
Whether or not the current Application for bail pending
trial is properly before the court in view of the fact that the remand
proceedings against the applicants have not yet been conducted.
Mr Kwaramba
for the applicants contended that this application is properly before this court.
He argued that an application for bail can be made at any time after an accused
has appeared in court on a charge. In this regard he referred to sections 116 and
117(1) of the Criminal Procedure and Evidence Act, [Cap 9:07]. He also referred
to s 117A of the same Act which states that: -
“Subject to
the proviso to section 116, an accused person may at any time apply verbally or
in writing to the judge or magistrate before whom he or she is appearing to be
admitted to bail immediately or may make such application in writing to a judge
or magistrate”
He further argued that in this case the accused are in
custody. Their first appearance
was on 24 December
2008. They are facing a charge of contravening s 24(a) of the Criminal Law
(Codification and Reform) Act [Cap 9:23]
or alternatively contravening s 187 (1) (b) as read with s 24(a) of the
Criminal Law (Codification and Reform) Act.
It was apparent that he was alive to the fact that the accused
had not been informed
of the charges in court. To confirm this in paragraph 17 of his
submissions he stated
that:
“it
is important to note that sections 116, 117, and 117A of the Act aforementioned
do not make it a condition precedent to an application for bail, that the
accused person must have been formally placed on remand or formally advised by
the court of the charges he or she is facing….”
The question that arises is when is it deemed one has
appeared in court on a charge to invoke one's entitlement to apply for bail? In
other words, what constitutes appearing in court on a charge for purposes of
applying for bail pending trial? Counsel for the respondent contended that the sections
in question must be construed to mean that when one appears in court the charge
is read out and he is informed of why he has been brought to court and the presiding
magistrate or judge is also informed of the same. Only then will one be said to
have appeared in court on a charge entitling one to apply for bail. The
applicants on the other hand maintained that the mere appearance in court
coupled with the fact that applicants had already been informed of the charge
by the police that sufficed for the purposes of applying for bail pending
trial.
In their
arguments counsel cited virtually the same case authorities as in the case of S v J M Mukoko HH24/09. Virtually all the issues in this case are the
same as in the S v J M Mukoko case. The
cases relied on were Inre Mlambo 1991(2) ZLR339 (SC) and Shumba v Attorney-General 1997 (1) 589 (S). A reading of those two
cases shows that they dealt with the question of when it is deemed one has been
charged in the context of s 18(2) of the Constitution. The term charged was
being interpreted for purposes of determining the reasonableness of the delay
in prosecution. In re Mlambo (supra)
at 346 GUBBAY CJ said that: “the time frame to be considered starts to run from
the moment a person is charged. The key word is “charged”. What does it mean in
the context of section 18(2)? Does the provision envisage only the situation
where the accused is called upon in court to plead to a formal charge? To my
mind such a restrictive construction has the effect of rendering the protection
almost nugatory. It squares more with arraignment…
I have no hesitation in
holding that the time frame is designed to relate far more to the period prior
to the commencement of the hearing or trial than to whatever period may elapse
after the accused has tendered a plea. This meaning is consonant with the
rationale of s 18(2) - that the charge from which the reasonable time inquiry
begins, must correspond with the start of impairment of the individual's
interest in the liberty and security of his person…”
It was in this context that he went on to approve that
the word “charge” maybe defined as the official notification given to an
individual by the appropriate competent authority of an allegation that he has
committed an offence.
In
Shumba v Attorney- General (supra) GUBBAY CJ again alluded to the fact that the issue concerned
the meaning to be given to the word 'charged' in s 18 (2) of the Constitution.
In casu, the
issue is when is one deemed to have appeared in court on a charge in the context
of sections 116 and 117 of the Criminal Procedure and Evidence Act for one to
apply for bail pending trial and not
when is one deemed to have been charged.
Section 116
states that:-
“Subject to this
section and sections 32 and 34, a person may, upon an application made in terms
of s 117A, be admitted to bail or have his or her conditions of bail altered –
(a)
in respect of any offence, by a judge at any time after
he or she has appeared in court on a charge and before sentence is imposed.
(b)
In respect of any offence, except an offence specified
in the third schedule, by a magistrate within whose area of jurisdiction the
accused is in custody at any time after he or she has appeared in court on a
charge and before sentence is imposed.”
Section 117(1) provides that:-
“subject to this
section and s 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 pr she has 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 should be detained in custody.”
Thus
the time to apply for bail pending trial is stated as: “at any time after he or
she has appeared in court on a charge and before sentence.” In J M Mukoko v The State (supra) I indicated that:-
“..to
trigger the process one must make an initial appearance in court on a charge.
The magistrate or judge before whom one appears must be apprised of the charges
the accused is appearing in court for and the accused must be informed why he
has been brought to court. This is done by having the allegations against the
accused put to him before the judicial officer. To say that just because one
has passed through a court room therefore one has appeared in court on a charge
is missing the point. The initial process initiating a criminal trial must
surely be undertaken.”
It is during that initial process that court
is enjoined to make a very fundamental step of determining whether there is
legal justification to place the accused on remand. If court finds that there
is no legal justification to place the accused on remand court is enjoined not
to remand him. The question of bail pending trial only arises where a decision
has been made to place the accused on remand.
In this regard I found support in the words of GREENLAND J. in S v Poli 1987(2) ZLR 30 wherein he said
that “the sections of the Criminal Procedure and Evidence Act which deal with
arrest, detention and postponements of trials must be read in the light of the
provisions of s 13 of the Constitution. Section 13 of the constitution provides
that:-
(3)
any person who is arrested or detained
(a)
for the purpose of bringing him before a court in
execution of the order of a court or an officer of a court; or
(b)
upon reasonable suspicion of his having committed, or
being about to commit, a criminal offence,
and who is not
released, shall be brought without undue delay before a court; and if any
person arrested or detained upon reasonable suspicion of having committed or
about to commit a criminal offence in not tried within a reasonable time, then,
without prejudice to any other proceedings that may be brought against him, he
shall be released either unconditionally or upon reasonable conditions,
including in particular such conditions as are reasonably necessary to ensure
that he appears at a later date for trial or for proceedings preliminary to
trial.”
The
judge went on to hold that “s 13 of the Constitution of Zimbabwe 1980 makes it
peremptory that a reasonable suspicion
of the commission or imminent commission of an offence should exist before a
person can lawfully be arrested, detained or remanded. If no such suspicion
exists, even a remand on bail is incompetent.”
It
is apparent therefore that before court can consider the issue of bail pending
trial, the state ought to establish that there is a reasonable suspicion that
the accused has committed or was about to commit a criminal offence. It is only
when such legal justification has been established to the satisfaction of court
that the issue of release of the accused unconditionally or on conditions can
be entertained. To grant bail ,or to even consider the issue of bail, without first
ascertaining whether there is legal justification to place the accused on
remand would be incompetent. The initial remand process must be undertaken to
ascertain the justification for placing the applicants on remand.
Accordingly
the application is not properly before this court and it is hereby dismissed on
that preliminary point.
Mbidzo, Muchadehama & Makoni, applicant's legal practitioners.
The Attorney- General's
Office, respondent's legal practitioners.
