CHEDA J: This
is an application for bail pending trial.
The
allegations against applicant are that on the 23rd of September
2008, he together with his 3 accomplices at B5430 Old Pumula, Bulawayo, broke
into complainant's house, armed with pistols and robbed him of various property
valued at US$3000-00 and cash amounting to R1000-00.
He
was arrested a year later as a result of being implicated by one of his
accomplices.
Applicant through his legal
practitioners submitted that he will not abscond if granted bail as Zimbabwe is his
permanent home and he will surrender his travel documents. He will not interfere with State witnesses
and will not commit any offences. He even
suggested that respondent's fears can be taken care of by the imposition of
strict bail conditions.
Respondent
has vigorously opposed this application as he argued that if granted bail
applicant is likely to:-
(1) abscond,
(2) interfere with witnesses, and
(3) commit other crimes.
These courts adhere to the time-honoured
principle of the presumption of innocence until proven guilty, thereby favouring
the liberation of a suspect unless the release is likely to frustrate the
otherwise smooth administration of justice, see S v Essak
1965 (2) SA 161
(D) at 162C. I agree with Mr. Ndlovu for applicant that, the fact
that applicant is facing a serious charge alone cannot justify his denial of
bail pending trial. There has to be one
or more factors which have to be considered see S v Hussey 1991 (2) ZLR 187 (SC).
The court is enjoined to have regard
of the provisions of section 117 (3) (b) of the Criminal Procedure and Evidence
Act [Chapter 9:07] which reads thus:-
“Section- 117
Entitlement to bail
(3)
….
(b) …. the court shall take into account—
(i)
….
(ii)
….
(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 nature and
gravity of the likely penalty therefore;
(v)
the strength of the case for the prosecution and the
corresponding incentive of the accused to flee.
(vi)
…..
(vii)
any other factors which in the opinion of the court
should be taken into account.”
The fact that applicant is facing a
serious charge admits of no doubt. The
question then is, are there either one or more factors which should be
considered in addition to the seriousness of the charge?
It is respondent's view that he is likely to
abscond. Applicant through his legal
practitioners argued that he will not abscond as he is prepared to surrender
his travel documents and undertakes to abide by any reporting conditions
imposed by the court. It is, further,
his argument that it is not enough for respondent to make a bold assertion that
he is likely to abscond when he has not taken steps towards that
direction.
While
applicant's argument would, under normal circumstances hold water, it is well
known that people in Zimbabwe
are capable of crossing our borders without either adequate documents or no
documents at all. Therefore, that
argument is not persuasive in the circumstances. Infact, the fact that people often travel
without travel documents is an additional factor to be taken into account in
determining this application in the circumstances. The fact that he is facing a serious charge
is enough incentive for him to abscond. If
this occurs, the proper administration of justice will be defeated.
In addition to the above, I am of
the opinion that the type of offence is such that members of the public in
general and the victim in particular, upon hearing of applicants release from
custody before the matter is finalized, will cause them anxiety and fear. For the above reasons I find that
applicant does not qualify for bail pending trial.
This application is accordingly
dismissed.
Cheda and partners, applicant's legal practitioners
Criminal Division,
Attorney General's Office, respondent's legal
practitioners
