ITAI MUNGATE

and

LOVERMORE MLAMBO

and

CHARLES ROVANI

and

EDMORE TARUVINGA

and

FELIX MARISA

and

EDMORE DAVID

versus

THE STATE

HIGH COURT OF ZIMBABWE

BHUNU J

HARARE, 29 June 2010

Mr Jena, for the appellant

Mr Chesa, for the State

Bail Appeal

            BHUNU J:  The six appellants were charged with contravening s 368 (1)(a) as read with s 4 of the Mines and Minerals Act 1 of 2006, that is to say, unlawful prospecting or searching for any Minerals, Oil or Natural gas without a valid prospecting licence.

            They appeared on initial remand before a magistrate on 18 May 2010. At that hearing State Counsel did not oppose the granting of bail. The Magistrate’s notes read:-

            “S/C

            TD 22/06/10 Crt I 2/6/10 interim on condition that they:

1. deposit US$20 with C.O.C.
2. reside @ given addresses
3. ……

by Crt

Having regard to the nature of the allegations – Offence attracts a Minimum Mandatory Sentence of 2 years imprisonment. The accused are not likely to stand their trial and therefore bail is denied by the court”    

It is clear that the proceedings were conducted in the most perfunctory and injudicious manner. The presiding magistrate condemned the applicants to imprisonment in circumstances where the State was not opposing bail without any shred of evidence that the appellants were likely to abscond.

            The appellants were condemned without uttering a single word concerning the bail issue. 

            The State having conceded that the applicants were good candidates for bail they cannot now without any changed circumstances claim other wise.

            The Magistrate having grossly misdirected himself it is accordingly ordered that bail be and is hereby granted in terms of the draft.

            Appellants are admitted to bail pending trial on the following conditions.

1. First to sixth appellants to deposit US$20 with the Clerk of Court Bindura Magistrate Court.

1. (i)         First appellant to continue residing at Chebanga Village, Chief Mazowe 

                       until finalization of this matter

(ii)        Second appellant to continue residing at Amatola Farm Mazowe until finalization of this matter

(iii)       Third appellant to continue residing at Daxford famr, Mazowe until finalization of this matter.

(iv)       Fourth appellant to continue residing at Tataguru farm Mazowe until finalization of this matter.

(v)        Fifth appellant to continue residing at G26 Dndamera, Concession until finalization of this matter.

1. Sixth appellant to continue residing at Wakatai farm Concession until finalization of this matter.

(c)        (i)         First, second, third and fourth appellants to report at Mazowe Police

                       Station between the hours of 6 am and 6 pm every Friday.

1. Fifth and sixth appellants to report at Concession Police Station between the hours of 6 am and 6 pm every Fridays.

Jena and Associates, appellants’ legal practitioners

The Attorney General’s Office, respondent’s legal practitioners