MAVANGIRA J: The respondents were
placed on remand on charges of public violence as defined in s 36 of the
Criminal Law (Codification and Reform) Act. [Cap 9:23]. The magistrate at Nyanga, before whom they appeared,
admitted them all to bail under specified conditions. Counsel for the State then immediately
advised the court a quo that the
State intended to appeal against the decision in terms of s121 of the Criminal
Procedure and Evidence Act. This is the appeal against the decision of the
magistrate.
I shall deal first with a point in limine which was raised by the
respondents' counsel during his address in response to State counsel's
submission. It was contended that this appeal is not properly before this court
because the High Court (Bail) Rules 1991, envisage service of the written
statement referred to in Rule 7 (1) on the magistrate against whose decision
the appeal is made. It was submitted that there has been no such service and
consequently the appeal is not properly before the court. Furthermore, that
whilst no rule specifically requires the appellant to serve on the magistrate,
this requirement can be inferred from subrule (3) of rule 7. The subrule states
that where practicable, a magistrate on whom a statement has been served shall
file with the Registrar his written comments on the appeal at least three hours
before the hearing. It was also submitted that subrule (3) must be read in
conjunction with subrule (2).
The appellant's contention was that
there is no such requirement in the rules for the appellant to serve the
written statement upon the magistrate. Furthermore, that in any event, even if
there was therein such a requirement, the appellant did comply with it albeit
the appellant is at this particular stage unable to furnish proof of such
service on the magistrate; given the limited time in which they have had to
respond to the preliminary issue. It was submitted that if it was given the
opportunity, the appellant would be in a position to furnish proof of such
service to the court.
Subrule (1) of rule 7 states as
follows:
“An appeal by the Attorney-General in terms of paragraph (b) of
subsection (1) of section 111A of the Criminal Procedure and Evidence Act [Cap 9:07] shall be noted, within seven
days after the magistrate granted bail, by filing with the registrar a written
statement setting out –
(a)
the
name of the person who was granted bail; and
(b)
where
the appeal is brought against the decision of a magistrate granting bail to a
person –
(i)
the
offence with which the person is charged; and
(ii)
the
court by which and the date on which the person was granted bail;
and … .”
Subrule (2) states:
“As soon as possible after the
appeal referred to in subrule (1) has been filed –
(a) the appellant's legal practitioner,
where the appellant is legally represented; or
(b) the registrar where the appellant is
not legally represented;
shall cause a copy of the written
statement referred to in subrule (1) to be served on the Attorney-General or his representative.”
It is patently clear that subrule
(2) cannot possibly have any place in appeals by the Attorney-General. A
reading of paragraphs (a) and (b) of the subrule makes it clear that this
subrule cannot be referring to the Attorney-General. The inapplicability of
this rule is further confirmed by the requirement for service on the
Attorney-General or his representative. The interpretation sought by the
respondents would lead to absurdity as the Attorney-General cannot be required
to serve the written notice filed in terms of subrule (1), on himself.
Subrule (3) which the respondents
placed much emphasis on, provides as follows:
“Where practicable, a magistrate on whom a statement has been served in
terms of subrule (2) shall file with the registrar his written comments on
the appeal at least three hours before the hearing of the appeal.” (Emphasis
added)
Subrule (3) can thus not be read on
its own. It is a sequitur to subrule
(2). The written statement which the magistrate is given an opportunity to
comment on, is a statement which has been served on him in terms of subrule
(2); yet subrule (2) has no such requirement for the magistrate to be served
with the written statement.
Whatever
the intention of the draftsperson was in this regard, it is not the role of
this court to introduce its own words into the two subrules with a view to
making them compliant with procedures to be followed in appeals by the
Attorney-General. The two subrules (2) and (3) do not appear to have any place
in the matter at hand. Until they have been amended to make clear what the
draftsman's intention is or was, this court has no basis or justification for
finding that the Attorney-General is required to serve on the magistrate the
written statement referred to in subrule (1).
It
was for these reasons that I found against the respondents on the preliminary
issue raised. I found that the appeal is properly before this court.
The appellant's grounds of appeal in
this matter are that the magistrate misdirected himself by not considering
that:-
“(a) the offence the respondents are facing is inherently serous.
(b) Respondents are likely to abscond in the
face of the serious charges which will no doubt attract a long term of imprisonment
upon conviction.
(c)
Respondents will interfere with
witnesses and investigations.
(d) Release
of respondent will endanger the safety of the community in which the
offence was committed.
(e)
Release of respondents is likely to
trigger severe loss of sense of peace and security
and will result in public disorder.”
The appellant prays that the order
of the court a quo be set aside and
that the respondents
remain in custody until the trial is
finalised. The appellant contends that justification for the granting of its
prayer is to be found in the fact that there is no indication in the
magistrate's written decision that he applied his mind carefully to the
concerns and fears raised by the State. The said concerns and fears are said to
be well set out in the Request for Remand form 242 as well as in the affidavit
of the Investigating Officer attached thereto.
The Request for Remand form 242 and
the Investigating Officer's affidavit list the following as the reasons for
opposing bail, which reasons were placed before the magistrate by the public
prosecutor at the bail hearing:
·
that
the appellants (accused) are facing a serious charge which attracts a custodial
sentence of up to 10 (ten) years hence they may abscond in order to avoid a
possible conviction and sentence.
·
that
the appellants are persons of influence in the Nyamaropa area Nyanga, hence
they are likely to interfere with witnesses/evidence.
·
that
they are likely to commit similar or other offences judging form the way they
“courageously and wantonly committed this offence to further their political
ends.
·
that
the police are still making frantic efforts to arrest seventy (70) outstanding
accused persons and that the release of the respondents may influence or cause the
disappearance of the seventy.
The
respondents in opposing this appeal contend that no misdirection on the part of
the
magistrate has been shown or proven. They
contend that that there is therefore no basis for this court to exercise fresh
discretion in this matter. They also contend that the magistrates written
decision refers not only the legal principles relied upon but also the facts to
which the legal principles were applied.
Besides citing 2 case authorities,
the magistrate's decision reads as follows:-
“The court has put into cognisance
both parties' submissions concerning the issue of
bail. As the law requires in bail issue, the right to liberty is one of
the most
fundamental rights and should not be lightly interfered with. The court
should lean
in favour of protecting the right to liberty , unless state established
the necessity to
deprive one of their liberty pending trial.” (sic)
In S v Ndlovu 2001 ( 2 ) ZLR 261 ( H) The court should strike a
balance between the interests
of society and the liberty of the accused. This accused should stand trial and
that there is to be no interference with witnesses. Bail must therefore be
granted provided the interests of justice will not be prejudiced.”
In S v Kuruneri HH111/04 If the state's fears of that the
accused will abscond or interfere with witnesses and the applicants' assurances to the contrary are
equally balanced, the presumption of innocence would require the court to lean in favour of the
liberty of the person and granted bail.
Reasons for opposition led by the
State are that: (1) seriousness of the offence (2) interference with witnesses
and that the outstanding perpetrators. (sic). These are not enough to deny one
bail basing on the issues of need for accused persons to be given the
presumption of innocence before they are tried.
Court's Decision
Bail is granted on the following
conditions:-
………………………….”
A perusal of the magistrate's
written decision shows that the first three paragraphs thereof in effect deal
with or refer to legal principles. What might be referred to as or what
purports to be reference to the merits of the matter appears only in the fourth
paragraph.
In Taruwona and Another v The State HH 6/2005 at page 3 of the
cyclostyled judgment, MAKARAU J. as
she then was said:-
“It is trite in my view that when a
Judicial Officer decides on an application, he or she must at least refer to
that legal principle upon which the decision is based in addition to the facts
upon which the legal principle is applied. In the above ruling by the trial
magistrate, no legal principle is referred to and the evidence that the claims
to have looked at thoroughly is not referred to. It is the lack of these basic
features in the ruling by the trial magistrate that in my view constitutes the
misdirection on his part.”
In casu, the magistrate referred to legal principle. He did not
however refer to the evidence, or as he put it, the submissions that he looked
at or had regard to in arriving at his decision. He made much generalised
statements. As in the Taruwona case,
(supra), this lack of a basic feature
in the magistrate's written decision constitutes a misdirection on the part of
the magistrate. In the result, and having established misdirection on the part
of the magistrate, this court is now at liberty to exercise fresh discretion in
this matter.
Before the court a quo the respondents' legal
practitioners made submissions in answer to the State's laid out fears, which
fears have already been listed earlier in this ruling. With regard to the first
stated fear or concern, it was submitted that the seriousness of an offence
does not on its own make a person ineligible for bail. He cited S v Hussey 1991 (2) ZLR 187 (SC) at 192
in support of his submission. He further submitted that the seriousness of an
offence taken together with other considerations may however, lead a judicial
officer properly to refuse the granting of bail.
Regarding the second fear or
concern, it was submitted that this is a bald statement or assertion which does
not amount to cognisable indication of a likelihood to abscond. It was
submitted that there is no indication that any of the respondents would abscond
if admitted to bail. As to the third ground it was submitted that the State did
not indicate how the respondents would interfere with witnesses and the
investigations. The basis for this fear, according to the public prosecutor, was
the allegation that the respondents had blocked and hindered the safe passage
of an ambulance which was ferrying an injured victim of their violence from Nyanga Hospital
to a referral centre. It was in response submitted that this fear could not
reasonably attach to all the respondents as they were not all arrested at the
same place and at the same time. The State had not indicated which of the
respondents were arrested at the hospital and are thus alleged to have blocked
the ambulance's way. It was submitted that they cannot all be denied bail on
the basis that they blocked the ambulance's way. It was stated to the
magistrate that eleven of the respondents were abducted by certain persons and
dropped off at Nyamaropa Police Station. The first respondent was apparently
arrested whilst he was at Parliament. It was submitted that these twelve were
not arrested at the scene of the crime, and furthermore, that the witnesses
were not known to the appellants.
As to the fourth concern it was
submitted that the State has not proffered any evidence that these respondents
or any of them have a propensity or inclination to commit offences. The same
submission was repeated in response to the fifth concern of the State. The
State also made the further submission that the respondents must stay in
custody for their own safety as they would thus be protected from criminal activities
which might be carried out against them by members of the community. The
response thereto was that that fear by the State must not hinder the
respondents' right to liberty. S v Bhebhe
& Ors 2002 (1) ZLR 137 was cited by the respondents' counsel(s?) in
support of this submission in response. The headnote thereof records that it
was held that fears for the safety of the accused because of the unlawful
actions of the mob outside the courtroom, threatening to kill the accused, were
not a ground to refuse to grant bail
The first respondent's legal
practitioner laid before the court detailed submissions regarding his
circumstances and the reason why the interests of justice will not be
prejudiced or jeopardised by his admission to bail. Similarly the legal
practitioner for the second to the twenty third respondents also made
submissions on the lack of cogency of the State's reasons for opposing bail.
Submissions made in this regard include the following: that all the respondents
have no links outside the country; they have no travel documents; they are not
persons with influence; they do not reside in the same village; they are not
known to have committed similar offences; they are farmers and have been
detained during the rainy season; they are of fixed abode and are permanent
residents with dependants. It was submitted in addition, and with particular reference
to the fourteenth and fifteenth respondents, that they are husband and wife and
noone was looking after their children. With particular reference to the
thirteenth respondent, it was also submitted that he was 82 years old and is
partially blind and thus would not abscond. The tenth and the twenty third
respondents were also said to be employed. The further submission was made that
the seventy who are allegedly still to be arrested, do not need to be told to
flee by the respondents, upon the respondents' release. It was finally
submitted that the court could impose appropriate conditions to the
respondents' bail in order to ensure their attendance at their trials.
The submissions pertaining to the
second to the twenty third respondents were adopted in respect of the twenty
fourth respondents.
In response to all these submissions
the public prosecutor addressed the court in the following terms:
“The defence has dismally failed.
The State stands by it grounds, especially second to twenty third. Accuseds'
submissions must be a joke or circus. We stand by our submissions.”
It appears to me that this is the
same situation which was faced by the court in S v Lotriet 2001 (2) ZLR 225 (H) where at 228D the following was
stated:-
“At the resumed hearing his (the
Attorney-General's representative's) answer to the allegations was that Mr.
Ndlovu 'has not been charged with fraud – but with [contravening] the Prevention
of Corruption Act. Hence each matter is dealt with according to its own facts
and merits'. That bald and general response by the Attorney General provides no
answer to detailed allegations made by the applicants. …. .
In the result, therefore, while even
if it is not possible to make positive findings on the allegations made by the
applicants, those allegations remain unanswered or, at best, inadequately
answered by the Attorney-General. In an application for bail pending trial, the
initial onus is on the State to prove the necessity of keeping the applicants
in custody. It is not necessary for the applicants to prove that they are to be
released on bail. The response of the Attorney-General does not discharge that
onus.”
In
Kuruneri v S HH111/04 at p 4 of the cyclostyled judgment, Hlatshwayo J stated the
following:
“In my humble view therefore, the
notion of the accused having an onus to discharge to enable him or her to be
admitted to bail is not part of our law as legislated. Having cleared this legal
debris, then the place of the constitutional presumption of innocence in bail
application becomes clearer. The presumption operates fully and at the general
level. It is because of the presumption of innocence that the courts are
expected, and indeed required, to lean in favour of the liberty of the accused.
In its request for remand (Form 242) the State puts across its reasons for
opposing the granting of bail. In his or her application for bail, the
applicant addresses the concerns of the State and makes any other averments
which tend to favour his admission to bail. The State then responds. Finally,
the judge or magistrate assesses all this information with a view to 'strike a
balance between the interests of the prosecutor in obtaining justice for the State,
as one party in the accusatorial process, interests of the accused in obtaining
justice for himself' (Legal Forum, op
cit., p26). If the finding is that, to use the words of GUBBAY CJ in Aitken's case, 'the case against the
applicant s neither obviously strong nor obviously weak', that the State's
fears of abscondment or interference with witnesses and the applicant's
assurances to the contrary are equally balanced, then the presumption of
innocence would require the court to lean in favour of the liberty of the
accused person and grant bail.”
In S v Benatar 1985 (2) ZLR 205 (HC) at 210D the following was stated:
“It has been said:
In striking a balance between the
liberty of the subject and the proper administration of justice, the imposition
of conditions can be decisive. Where bail can be granted subject to
safeguarding conditions, the court should, if possible, lean in favour of doing
so…. (See headnote, S v Bennett 1976
(3) SA 652 (C).”
In casu the State has not in my view, shown why each individual
respondent ought not to be granted bail or is not a suitable candidate for
bail. Having heard the submissions made on behalf of the respondents by the
respondents' legal practitioners, the public prosecutor did not take it upon
himself to answer to the detailed allegations made. He gave a rather bald and
generalised response. In answer to questions posed by this court, State counsel
submitted that the circumstances of the rest of the respondents were not given
as much attention or coverage by both the public prosecutor and the
respondents' legal practitioner, as was given to the first respondent's. I may
comment on this in passing. There is an element of truth in this submission albeit
in varying degrees with respect to the public prosecutor and the respondents'
legal practitioner. This observation seems to me to be a sad reflection of the
reality manifesting in this case. Although twenty four respondents are cited
and are all represented by the one counsel, it is only the first respondent
whose cause has received most of the individualised and in this case animated
attention from both the State and the defence counsel. This same scenario
appears to have also prevailed in the proceedings before the magistrate. Could this
apparent differentiation be based on the fact that the first respondent is a
public figure and a prominent member of society and the other respondents are
not? If this be so, this is no valid justification for such an approach as the
law does not discriminate. All persons are viewed equally before the law. I
need not comment any further on this aspect.
For the reasons discussed above, I
am satisfied that it has not been shown to this court that each and every one
of the respondents is not a suitable candidate for bail. It is my considered view
that appropriate or suitable conditions can be imposed upon the respondents to
ensure that the proper administration of justice will not be prejudiced.
I therefore find that the
respondents are entitled to bail. The appellant's appeal is dismissed. This
finding was pronounced in court on 11 March 2011. I then proposed to impose the same
conditions as were set by the magistrate. I also proposed to add a condition
requiring each respondent to periodically report and present himself or herself
to the Police. I then invited both counsel(s?) to assist the court in
suggesting any other possible and suitable conditions or make any other
submissions they may wish to make on the issue of applicable conditions, for
the consideration of the court. Both counsel asked for an opportunity to confer
amongst the parties. The request was granted and they advised the court of
their agreed position on this aspect. Thereafter orders were issued to the
following effect:
1. Each respondent shall deposit US$50.00
with the clerk of court at Nyanga Magistrates Court.
2. Each respondent shall reside at his or
her given address until the finalisation of this matter
3. (a) The
first respondent shall report at Harare Central Police Station, CID Law
and Order section once
every Friday between the hours of 6.00am and 6.00pm.
(b) Each and every one of the second to the
twenty third respondents shall report at Nyamaropa Police Station once every
Friday between the hours of 6.00am and 6.00pm.
(c) The twenty fourth respondent shall report
at Nyanga Police Station once every Friday between the hours of 6.00am and
6.00pm.
4. Each respondent shall not interfere with
State witnesses and investigations directly or indirectly until the
finalisation of this matter.
The Criminal Division, Attorney-General's Office, appellant's legal practitioners
Zimbabwe
Lawyers for Human Rights,
respondents' legal practitioners
