Judgment No. HB 139/2002

                                                                                    Case No. HCB 199/2002

RUSSEL WAYNE LABUSCHANGE

Versus

THE STATE

IN THE HIGH COURT OF ZIMBABWE

CHIWESHE J

BULAWAYO 22 & 28 NOVEMBER 2002

J Jamesfor the applicant

H Ushewokunze IIIfor the state

Application to Vary Bail Conditions

            CHIWESHE J:          The applicant is charged with murder.  He is currently

on bail.  One of the bail conditions is that he surrenders his passport.  He now applies

for a variation of that condition on the grounds that he wishes to attend a fishing

convention in South Africa and would need to be allowed to uplift his passport for

that purpose.

            The state is opposed to this application.  With the consent of both parties I

have consulted my brother KAMOCHAJ, the trial judge.  Both of us are agreed that it

would not be in the interests of justice to accede to the applicant’s request for the

following reasons:

1. The trial is virtually concluded.  The parties await judgment.  Judgment will be handed down any time from now.  In the premises we see no point in granting the indulgence that the applicant seeks.  We appreciate that applicant has been on remand for at least three years, be it on bail.  We also appreciate the fact that he has faithfully complied with his bail conditions all along.  But the point is that the matter is about to be concluded one way or the other.  He might as well await the outcome of the trial.  His present bail conditions are not overbearing, given the nature of the charge.
2. We are not convinced that it is of absolute necessity that the applicant attends the fishing convention.  No such compelling reasons have been put forward.  It has not been shown that applicant would suffer irreparable harm if he did not attend the fishing convention.

HB 139/02

                                                            -2-

1. Whilst applicant has up to now observed the conditions attached to his bail, in cases of this nature there is always a possibility, however remote, that an accused person may abscond.  It would not be in the interest of justice at this late and critical stage of the case to take that gamble.

For these reasons the application cannot succeed.  It is hereby dismissed.  My

brother KAMOCHA J agrees with this decision.

I have been asked by the trial judge to advise the parties that this decision has

nothing to do with the merits of the matter under trial.  And I must record that the trial

judge has not discussed with me such merits nor has he made any indication to me as

to which way the judgment will go.  This decision has been based on principles

applicable to bail applications in general and not on the merits of the case under trial.

James, Moyo-Majwabu & Nyoniapplicant’s legal practitioners

Attorney-General’s Officerespondent’s legal practitioners

c.c. – Kamocha J – High Court - Harare