Bail
Application pending trial
CHEDA
J: These two groups of cases involve
applicants who are applying for bail pending trial. I have decided to deal with them as one as
the allegations are similar in many respects and the legal question is the
same. I find it expedient to do so.
Group 1
The
allegations against them are that on the 28th day of April 2009 the
three applicants together with three others went to complainant's
residence. Upon arrival they produced
pistols and threatened complainant as a result of which she parted with R10
000-00 (ten thousand rands). After this,
they forced her into their car and drove her to another location to look for
more money.
Applicants are, therefore, charged
with armed robbery and kidnapping. Respondent is opposing bail on the following
grounds:
1. that applicants are facing serious
charges,
2. they may abscond,
3. they may interfere with Police
investigations and,
4. that they may interfere with state witnesses
Group 11
It
is alleged that four applicants acting in common purpose teamed up and engaged
in armed robberies in and around Bulawayo.
Respondent is opposed to the granting
of bail for the reason that if granted bail they are likely to abscond and also
commit further offences.
The cardinal rule in applications for
bail pending trial is that our courts tend to lean in favour of the liberty of
suspects unless there are compelling reasons to act otherwise. This settled legal position is based on the
principle of the presumption of innocence of a suspect until proven guilty, see
Aitken and Another v Attorney
General 1992 (1) ZLR(S) 249.
In casu all the applicants
are facing very serious charges, that is armed robbery and kidnapping with
respect to group one applicants. The
fact that a suspect is facing a serious charge per se is not
enough reason to deny him/her bail as the granting of bail is his entitlement,
see Abraham Nyathi and Another v S
HB 30/06. There has to be an additional factor
to it. The question then is, is there
any other factor in addition to the serious charge, which can persuade the
court to deprive the suspects of their liberty?
It is common cause that the first
quarter of the year, the country in general and Bulawayo in particular experienced an
unprecedented increase of armed robberies.
This is a factor which in my mind can not be ignored by the court. As such, it is a factor which is necessary in
the determination of bail based on the seriousness of an offence or charge.
It is further respondents' argument
that if granted bail applicants are likely to abscond. They have, however, argued that they are
family men and therefore are unlikely to abscond. The question then is, can the fact that one
has a family be a reason enough for him to stay and await his possible lengthy
incarceration, in the event of a conviction?
The court takes judicial notice that people have absconded leaving
families behind and even those without valid travel documents have made good
their escape when faced with the choice of either imprisonment or freedom.
One, Thabani Maziya is a South African
as he holds a South African passport number 448728823. If granted bail he is likely to abscond.
The likelihood of lengthy prison terms
will serve as an incentive for them to abscond, see S v Hudson 1980(4) SA 145; S v Munatsi HB
21/05 and Mpumelelo Mpofu v S HB 55/09.
In matters of this nature, the court
should weigh the interests of the applicants against those of the State; see S v Mutandwa HB 79/05.
In casu, it is clear in
my mind that the interest of justice favours the denial of bail as the chances
of applicants' abscondment are very high even if they have not yet shown such
signs. It is folly, therefore, to think
that applicants who are alleged to have been involved in such serious crimes
would be so gullible to await the possible rigorous cross-examinations as to
why all of them were found to have been where they were, more so, that some of
them have been positively identified by the
complainants. All of them have
been sailing too close to the wind.
With regards to the interference with
witnesses, in as much as it has been held in some cases that denial of bail on
that basis should be made only where a suspect has taken positive steps towards
that direction, this is not absolute.
In casu the fact that applicants are facing
allegations of violence or threats thereof, and the mere knowledge that
applicants are out of custody without more is, enough to cause concern to the
witnesses. The possibility of
interference is therefore live and therefore witnesses need to be protected as
well.
I hold this view bearing in mind the ordeal
the witnesses experienced while at the mercy of the alleged perpetrators of
these crimes.
The applications are accordingly
dismissed.
Messrs R. Ndlovu and Company 1st
applicant's legal practitioners
Dube-Banda, Nzarayapenga and Partners,
2nd applicant's legal practitioners
Messrs. T. Hara and partners 3rd
applicant's legal practitioners
Sansole and Senda applicants' legal
practitioners
Attorney General”s
office respondents' legal practitioners
