CHEDA J: This
is an application for bail pending trial.
Applicant
is charged with incitement to commit kidnapping or unlawful detention and also
with intent to commit assault. The
matter is pending before the courts.
The
allegations against him are that on the 7th November 2009, Applicant
invited Kingston Muzvidziwa and Clayton Zimbeva to kidnap Cornelius Tinei and
assault him for having proposed love to his wife. The two men went on to carry out his
instructions and committed these two crimes.
It is, further, the state's allegation that applicant subsequently
followed the two men, found them assaulting the complainant and cheered them on
to continue with the assault.
Applicant
is now applying for bail on the basis that he is presumed to be innocent until
proven guilty by a competent court. This
is a trite honoured principle in our legal system.
In
determining bail it is important to look at applicant's personal circumstances
and those of the state. Applicant is a
businessman based in Beitbridge together with his two co-accused and
complainant. It is his legal
practitioners' argument that he is unlikely to abscond as he has a lot at stake
to lose.
On
the other hand, the respondent's argument is that the seriousness of the
offence and the lengthy prison term which may be imposed on him in the event of
a conviction will induce him to abscond.
The
allegations against him are indeed serious, but, that alone, these courts have
always stated is not enough reason to deny a suspect bail. In casu applicant is alleged to be
deeply involved in the commission of this offence. Not only is it alleged that he invited, but,
that he was also present when the complainant has being assaulted in his naked
state by Kingston
and Clayton. Applicant has a toll order
in trying to extricate himself out of this matter. It is for this reason that respondent is of
the view that they have overwhelming evidence against him.
In
S v Nichas and another 1977(1) SA 275
at 26H DIEMONT J sated:
“…if there is a likelihood
of heavy sentences being imposed the accused will be tempted to abscond.”
Applicant
is aware through his legal practitioners that upon conviction he is likely to
be incarcerated for a long time. He is a
businessman living in the border town of Beitbridge,
obviously money and contacts are not scarce to him. Therefore, faced with the possibility of his
incarceration against his cherished freedom, in my opinion he is likely to
evade justice.
In
determining this application the court should not rely on his mere statement
that he will stand trial, but, must carefully examine the circumstances of the
case. In S v Hudson
1980(4) SA 145 at 148 E THIRION J stated:
“Where an
accused applies for bail and confirms on oath that he has no intention of
absconding due weight has of course to be given to his statement on oath. However, since an accused who does have such
an intention is hardly likely to admit it, implicit reliance cannot be placed
on the mere say-so of the accused. The
court should examine the circumstances.”
Applicant is the type of person who
is likely to abscond if admitted to bail in view of the seriousness of the
allegations, evidence against him and the likelihood of the length of
incarceration he is likely to face in the event of a conviction.
In my view, it will be folly
therefore, to grant applicant bail as this will license him to evade justice.
This application is
accordingly dismissed.
Munjanja and Associates, applicant's legal practitioners
Criminal Division,
Attorney General's Office, respondents' legal
practitioners
