JESTINA MUNGAREWA MUKOKO

and

THE STATE

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HIGH COURT OF ZIMBABWE

CHITAKUNYE J.

HARARE, 04 February 2009

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Bail Application

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Mr H. Nkomo, for applicant

Mrs Ziyambi and Mr. M. Dube, for respondent.

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CHITAKUNYE J. The applicant applied to this court for bail pending trial. The respondent opposed the application and raised a point in limine contending that the application is not properly before this court as the applicant has not been formally placed on remand. The respondent contended that on 24 December 2008 the applicant appeared before a magistrate at Harare magistrates’ court for an initial remand.

At applicant’s insistence the initial remand proceedings were deferred pending the outcome of an application for release of the applicant that was pending in the High Court and was due to be heard on the same day.

The High Court ordered that the applicant appears before a magistrate. On 30 December 2008 the applicant was taken before a magistrate for the initial remand proceedings to be conducted. The proceedings were further deferred pending another application before the High Court for her release and a request for medical attention. This was followed by yet another urgent chamber application in the Supreme Court on 12 January 2009 seeking an order to depart from the Supreme Court Rules in regard to the set down of a Constitutional Court application made in terms of s. 24(1) of the Constitution of Zimbabwe ( an application for the hearing of the court application on an urgent basis).The Chief Justice dismissed the application and ordered that the applicant should comply with the provisions of s 24 of the Constitution before the matter can be set down as a constitutional application. (See Jestina Mungarewa Mukoko v Commissioner- General of Police & 4 Others SC 3/09)

An application for referral to the Supreme Court was subsequently made before a magistrate on 15 January 2009 who then referred the matter to the Supreme Court in terms of s 24(2) of the Constitution.

The respondent argued that the initial remand proceedings were never conducted as the applicant contended that the constitutional issues she was taking before the Supreme Court be resolved first.

As far as respondent is concerned it has always wanted to proceed with the initial remand but has met with resistance by applicant. As the applicant has not been placed on remand she cannot apply for bail at this stage. The applicant can only apply for bail when she has been formally placed on remand.

The applicant on the other hand argued that she is properly before this court and that the applicant can in terms of both Constitutional and statutory provisions apply for bail in this court. In his argument counsel for the applicant submitted that the question before this court is whether an accused person who has not been formally remanded can apply for bail in the High Court. He argued that the application is properly before this court. In that regard he referred` to s 116 of the Criminal Procedure and Evidence Act [Cap 9:07.]. Section 116 deals with the power to admit to bail and section 117 deals with entitlement to bail.

Counsel conceded that though applicant appeared in court on 24 December 2008 no formal remand took place. He in fact did not deny the sequence of events as narrated by counsel for the state leading to the initial remand not being conducted up to this date.

From the submissions by counsel for both parties it is apparent that counsel are

not agreed on the proper interpretation of sections 116 and 117 of the Criminal Procedure and Evidence Act [Cap 9:07]. The basic issue being ‘when is it deemed one has appeared in court on a charge to invoke one’s entitlement to apply for bail.’ In other words, what constitutes appearing in court on a charge for purposes of applying for bail pending trial?

Counsel for respondent contended that that section must be construed to mean that when one appears in court the charge is read out and one is informed of why they have been brought to court. When one has been informed of the allegations against them in court and before a magistrate or judge only then will they be entitled to apply for bail pending trial.

The applicant on the other hand argued that the mere fact of appearing in court coupled with the fact that applicant had already been informed of the charge by the police that sufficed for the purpose of applying for bail pending trial. In paragraph 8 of his written submissions counsel for applicant succinctly put it thus;

"The applicant appeared in court on a charge that was put to her by the investigating officer, and is in custody and to that end she is properly before this court and her application must be entertained."

In a bid to convince court that that was the correct construction applicant’s counsel referred to two cases, namely; Inre Mlambo 1991 (2) ZLR 339 (SC) and Shumba v Attorney –General 1997 (1) 589 (S). A reading of those two cases shows that they dealt with the issue of when it is deemed one has been charged in the context of section 18(2) of the Constitution. It was the term "charged" for purposes of determining the reasonableness of the delay in prosecution.

In Inre Mlambo (supra) at page 346 GUBBAY CJ said that: "The time frame to be considered starts to run from the moment a person is charged. The key word is "charged". What does it mean in the context of s. 8(2)? Does the provision envisage only the situation where the accused is called upon in court to plead to a formal charge? To my mind such a restrictive construction has the effect of rendering the protection almost nugatory. It squares more with an arraignment………..

I have no hesitation in holding that the time frame is designed to relate far more to the period prior to the commencement of the hearing or trial than to whatever period may elapse after the accused has tendered a plea. This meaning is wholly consonant with the rationale of Section 18(2) - that the charge from which the reasonable time enquiry begins, must correspond with the start of impairment of the individual’s interests in the liberty and security of his person…"

It was in this context that he went on to approve that the word "charge" may be defined as the official notification given to an individual by the (appropriate) competent authority of an allegation that he has committed a criminal offence.

In Shumba v Attorney-General (supra) GUBBAY CJ said that one of the issues to be decided therein concerned "the meaning to be given to the word ‘charged’ in s 18(2) of the Constitution." He confirmed that in both cases the meaning of the word ‘charged’ was in the context of s 18(2) of the Constitution.

Whilst in the cases cited the question was when is one deemed to have been charged in the context of s 18 (2) of the Constitution in casu the question is when is one deemed to have appeared in court on a charge in the context of sections 116 and 117 of the Criminal Procedure and Evidence Act for one to apply for bail pending trial. Section 116 provides that:-

"Subject to this Section and sections 32 and 34, a person may, upon an application made in terms of Section 117A, be admitted to bail or have his or her conditions of bail altered-

Section 117, in subsection (1) provides that;-

"Subject to this Section and Section 32, a person who is in custody in respect of an offence shall be entitled to be released on bail at any time after he or she has appeared in court on a charge and before sentence is imposed, unless the court finds that it is in the interest of justice that he or she should be detained in custody."

In both sections the time to apply for bail is stated as: "at any time after he or she has appeared in court on a charge and before sentence." I am of the view that to trigger the process one must make an initial appearance in court on a charge. The magistrate or judge before whom one appears must be apprised of the charge the accused is appearing in court for and the accused must be informed why he has been brought to court. This is done by having the allegations against the accused put to him before the judicial officer. To say just because one has passed through a court room therefore one has appeared in court on a charge is missing the point. The initial process initiating a criminal trial must surely be undertaken. It is during that initial process that after the allegations have been put to the accused and a preliminary inquiry done on the circumstances of the accused such as why he was arrested and how he was treated after arrest that court will first determine whether there is legal justification to place the accused on remand or not. Where there is no legal justification court is enjoined not to place the accused on remand. Where court finds that there is legal justification to place the accused on remand the next issue is should he/she be remanded in custody or not. It is during this process that the issue of bail arises. It is important that this process takes place as it is during this process that court having been informed of the allegations against the accused will be better positioned to consider the various factors in adjudicating on the question of bail pending trial.

In S v Poli 1987 (2) ZLR 30 GREENLAND J opined that the sections of the Criminal Procedure and Evidence Act which deal with arrest, detention and postponements of trials must be read in the light of the provisions of s.13 of the Constitution. Section 13 of the Constitution provides that;

"(4) Any person who is arrested or detained-

and who is not released, shall be brought without undue delay before a court; and if any person arrested or detained upon reasonable suspicion of his having committed or about to commit a criminal offence is not tried within a reasonable time, then , without prejudice to any other proceedings that may be brought against him, he shall be released either unconditionally or upon reasonable conditions, including in particular such conditions as are reasonably necessary to ensure that he appears at a later date for trial or for proceedings preliminary to trial."

The judge in my view correctly held that "s.13 of the Constitution of Zimbabwe 1980 makes it peremptory that a reasonable suspicion of the commission or imminent commission of an offence should exist before a person can lawfully be arrested, detained or remanded. If no such suspicion exists, even a remand on bail is incompetent."

In casu,

the applicant was arrested and detained on certain allegations. For court to

place her on remand court must be satisfied that there exists reasonsable suspicion that she committed the offence in question. Court can only assess this if the state is allowed to set the criminal trial in motion. Initial remand is the process that initiates the criminal trial. To grant bail without first ascertaining whether there is legal justification for the accused to be placed on remand would be incompetent.

This is a procedure I am sure applicant’s legal practitioners are aware of and if that had been done they would have curtailed the proceedings remarkably. The manner in which applicant’s legal practitioners chose to act leaves one wondering whether it was for applicant’s benefit or not. The fact that the Applicant’s legal practitioners were provided with a copy of the Form 242 [Request for Remand] containing the allegations against the applicant did not mean that the court before which she appeared should not be apprised of the reasons for bringing applicant before it and to then decide whether, from the facts placed before it, there was legal justification for her to be placed on remand. As discernible from S v Poli (supra) an unconditional or conditional release of applicant on remand without ascertaining whether there is reasonable suspicion that she had or was about to commit an offence would be incompetent. The proper procedure is to firstly found the basis of placing her on remand and then proceed to consider the desirability of releasing her on bail. To seek to place her on bail before finding that there is legal justification for her to be placed on remand is putting the cart before the horse. What the applicant is in fact saying to the state is that ‘having brought me to court and before you can tell court why you have brought me I must be granted bail.’ And to court it is that ‘before you can hear why I have been brought before you and assess whether there is legal justification for my arrest, detention and remand grant me bail.’ Surely this would be improper for any court to do.

Whilst I am mindful of the fundamental right to liberty and that courts should lean in favor of granting bail, I am of the firm view that this could have been achieved much faster by applicant following the proper procedure from inception. I did not hear applicant’s counsel to advance any cogent reasons for avoiding the proper procedure save to say they wanted the Constitutional issue to be resolved first. But surely the placing of the applicant on remand would not have precluded the applicant from proceeding with the Constitutional issue at all. I also did not hear counsel to submit that applicant would have suffered any prejudice in any way had the initial remand proceedings been conducted. As the situation stands the flurry of applications that applicant has embarked on have not speedily resolved her predicament. If it was intended to clutter the justice system so that it is portrayed as failing to do justice to persons arrested and detained, that unfortunately, has been at the expense of applicant’s liberty.

The applicant should go through the initial remand hearing so that the magistrate before whom she appears determines whether there is legal justification to place her on remand. The magistrate’s decision is crucial to the applicant’s next course of action.

I am therefore of the view that the term after a person has appeared in court on a charge must be construed to mean after the initial process of a criminal trial which is the initial appearance in court before a judicial officer and the legal justification for his or her arrest and detention is presented to the judicial officer.

The application is therefore not properly before this court. It is thus dismissed on that preliminary point.Mtetwa & Nyambirai, applicant’s legal practitionersThe Attorney – General’s Office, respondent’s legal practitioners.