Judgment No S.C. 59\2002
Appeal No 159\2002
JOHN RAPHAEL MASUKU v
COURT OF ZIMBABWE
JULY 12 & 25, 2002
E. T. Matinenga, for the
Mushangwe, for the respondent
Before ZIYAMBI JA, in Chambers,
in terms of Rule 5 of the Supreme Court(Bail)Rules.
appellant was indicted by the magistrate on 11 counts of car theft.
In compliance with section 110 of the Criminal Procedure
Act [Chapter 9:07] the appellant, who up to the date of his
indictment was on bail, was committed to prison there to
trial or till admitted to bail or liberated in the course of law.
The appellant made an application for his release,
on bail, to the
High Court which application was dismissed. Against the refusal of
this application the appellant now appeals.
Mr Matinenga, who appeared
for the appellant, at the outset accepted that the power of this
court to interfere with the judgment of the lower
court is limited to
the finding of an irregularity or misdirection by the trial court or
such an improper or unreasonable exercise
of its discretion as to
vitiate its decision. He cited the following instances in which he
alleged that the learned judge misdirected
page 4 of the cyclostyled judgment the learned judge stated that the
application was for the release of the appellant on bail on
conditions as pertained before his indictment. This, he alleged,
was a misdirection because the appellant had in his application,
suggested the more stringent conditions set out in the draft order
attached to his notice of appeal.
page 7 of the judgment the learned judge in referring to threats
allegedly made to the prosecutor handling the prosecution said:-
this case a law officer filed an affidavit which shows that a threat
was made against the law officer concerned. The words uttered
constrain me to accept that such a threat was made in connection with
the charges which the appellant is facing. It does not seem
to me to
matter who made those threats. What matters is that they were made
by someone for the benefit of the applicant.
was submitted that this was a misdirection since there was nothing to
show that the threats emanated from the appellant or from
associated with the appellant.
At the hearing it was stated by
the prosecutor that one of the state witnesses was robbed of
important documents pertaining to a case
in which the appellant is
involved. It was submitted by Mr Matinenga that there was no
evidence that the robbery was in any way connected with the
page 8 of the cyclostyled judgment the learned judge said:-
the hearing, the AttorneyGenerals representative also stated
that dockets in respect of other counts which will bring the
counts to forty-four are with the Attorney-Generals office. For
the purpose of granting or refusing to grant bail, I cannot
such a statement even if, strictly speaking, I am considering bail in
the light of an indictment involving only eleven counts
of car theft.
I think that this is a complex matter and one in which the decision
in respect of the application cannot be confined
to the narrow limits
of the eleven counts on which the applicant has been indicted. It
requires that I should have regard to all
that has happened and is
likely to happen..
was submitted that this was a misdirection on the part of the learned
judge in that he had misdirected himself in having regard
not yet completed. Because of these misdirections it was submitted
that this court was at liberty to consider the matter
for the State, submitted that there was no miscarriage of justice
occasioned by the alleged misdirections.
my view the only misdirection, if one could describe it as such, was
the observation by the learned judge that the application
for bail on the same terms as before. That may have been due to an
oversight on the part of the learned judge since it
is common cause
that more stringent conditions were suggested in the application.
With regard to the other misdirections alleged,
I do not agree that
the learned judge misdirected himself. He was entitled to take into
account the threats made to the prosecutor
as well as the robbery of
documents from the state witness in order to assess whether it was in
the interests of justice that the
appellant should be granted bail.
any event, even if these can be regarded as misdirections, no
miscarriage of justice has occurred. The learned judge, having
all the circumstances, was of the view that there were
strong indications that the appellant may abscond or interfere
process or with State witnesses. Having so found, he
properly exercised his discretion against the appellant.
I have already stated I find no misdirection by the learned judge
which justifies my interference with the order that he made.
Accordingly, the appeal is
James Moyo Majwabu &
Nyoni, appellants legal practitioners