Appeal against granting of bail
CHEDA J: This
is an appeal against the granting of bail by a magistrate sitting at Kwekwe on
the 9th day of October 2009.
The
brief facts of the matter are that two accused who are lovers and not employed
unlawfully cut some copper conductors and rods from a railway power line. They are charged with two counts of this
offence. In fact the first offence came
to light after accused 1 had been arrested for the second offence.
They
appeared in court on the 9th October 2009 and were granted bail on
the following terms and conditions:
(1) the
payment of USD 50 each;
(2) accused
2 surrenders his passport to the Clerk of Court, Kwekwe.
(3)
that they reside at their places of residence until the matter is finalized.
(4) that
they should report at ZRP every fortnight.
Respondent
opposed to the granting of bail on the basis that the learned magistrate erred
by not considering the seriousness of the offence which would result in a long
term imprisonment in the event of a conviction.
It is trite law
that all suspects are presumed to be innocent until proven guilty by a
competent court. That presumption is
universal and is operational from the arrest of a suspect up to the
finalization of the matter, because of the need to protect the time honoured
principle of the respect of the liberty of a suspect.
In
determining bail, the question of whether or not bail should be granted to a
suspect the courts should always balance the interest of a suspect vis a
vis that of the administration of justice.
It is appellant's argument that the presiding
magistrate erred by granting respondents bail in light of the seriousness of
the allegations they are facing.
Appellant further argued that in view of the evidence against them they
are likely to abscond if grant bail. In
my mind it is the question of a possible abscondment which is a major
determining factor in this matter.
First respondent was caught red-handed with copper conductors, he will
have to give a convincing explanation for his unlawful possession. In the event of him giving an unsatisfactory
explanation, conviction is inevitable.
In the event of a conviction, he together with accused 2, no doubt will
be incarcerated for a long time. Therefore,
the long term imprisonment will no doubt induce them to abscond. If this occurs, the interests of justice will
be frustrated and defeated.
In
my mind, this is a clear case where respondents should not have been admitted
to bail. By granting them bail the
learned trial magistrate did not properly apply his/her mind to the facts
before him/her. Judicial officers are
urged to apply their minds and take cognizance of the penalties imposed by the
legislature in certain cases, as these often give an indication of how serious
the offence is viewed by society.
I
would like to add, that, there is no reasonable judicial officer in the present
day in Zimbabwe,
who is unaware of the adverse effects of thefts of Zimbabwe Electricity Supply
Authority (ZESA), National Railways of Zimbabwe (NRZ) and the Post and Telecommunications'
gadgets have on the economy. Judicial
officers do not live in a vacuum but, in society where such offences, are of
late been at a higher level.
The
appeal is upheld.
Mkushi, Foroma &
Maupa, respondent's legal practitioners
Criminal Division
Attorney General's Office, applicant's legal
practitioners
