Judgment No. HB 12/2003

                                                                                    Case No. HCB 236/2002

NKATHAZO NDLOVU

Versus

THE STATE

IN THE HIGH COURT OF ZIMBABWE

CHIWESHE J

BULAWAYO 23 JANUARY 2003

G  Nyonifor the applicant

Mrs M Chedafor the respondent

Bail Application

            CHIWESHE J:          The applicant appeared before the magistrate at

Bulawayo facing charges of armed robbery.  It was alleged that on 10 October 2002

the applicant supplied information to six other co-accused persons as to how they

could rob the complainant of his property.  The applicant was an employee of the

complainant.  They then proceeded at gunpoint to rob the complainant of a motor

vehicle, household goods and clothes.  The property is valued at $11 million of which

property to the value of $7 million has been recovered.  The applicant sought to be

granted bail pending trial.  The magistrate dismissed the application.

            He now appeals against the magistrate’s decision on the grounds that the

learned magistrate should not have relied on the grounds stated by the investigating

officer in dismissing the bail application.  In particular the applicant avers that the

investigating officer admitted that the applicant did not directly participate in the

armed robbery, that no weapon was found on him, that no property was found at his

residence, that the applicant never attempted to run away, that applicant was at the

time of the armed robbery at Belmont where the complainant was, that he has no

travel documents and that he has neither previous convictions nor pending cases.  The

applicant further alleges that the prosecutor had agreed to bail but that the magistrate

had insisted on hearing the investigating officer instead.  However, there is nothing in

the record in support of that contention.  At one stage the applicant was arrested,

questioned and detained for five days.  He was released and re-arrested at his

residence after two weeks.  This fact is common cause.

            Specifically the applicant alleges that the magistrate misdirected herself when

she indicated that the state opposed bail and maintains that the prosecutor a Mr

Masendu had been agreeable to bail upon certain conditions.  As already observed the

record does not bear testimony to that assertion.  The applicant also suggests that in

fact the state had indicated an intention to remove him from remand as they did not

seem to have any evidence against him.  Again this is not borne out by the record of

the proceedings.  On the contrary the record shows that bail was vigorously opposed. 

Further the applicant contends that it was unreasonable on the part of the magistrate to

entertain fears that the applicant may abscond or interfere with witnesses when there

is no evidence of prior conduct particularly during the period between the first arrest

and the present arrest when he had been released for two weeks.  He did not abscond

nor is there evidence of interference with witnesses.  The investigating officer agrees

the applicant had been so released but sought to qualify his statement by saying that

during the first arrest the applicant had only been questioned but not charged.  As

such his motive to abscond at that time would have been minimal.  Presumably the

applicant was questioned concerning the present charges.  If so he would have known

that he was a possible suspect and if he had wished to abscond he would have done

so.  He did not.  That is a fact that is definitely in the applicant’s favour.  Further the

evidence so far against the applicant does not present a formidable case to answer. 

Further the applicant has no previous convictions.  He is aged 22 and gainfully

employed.  Taking these factors together the probabilities tend to point to the fact that

the applicant is more likely to stand trial than abscond.  He had the opportunity to

abscond but did not.  He had a similar opportunity to interfere with the investigations. 

There is no evidence to suggest that he did so.  While there may be factors militating

against the granting of bail such as were observed by the magistrate,  I am inclined to

the view that the magistrate over weighed these factors at the expense of those factors

favourable to the applicant’s cause.  That to me constitutes a misdirection.  I am

fortified in this view by the fact that in an application such as the present it is the

practice of the courts to exercise their discretion as far as possible in favour of the

liberty of the applicant whose guilt is yet to be proved.  In this case the probabilities

are clearly in the applicant’s favour.  Any concerns that the state may have can be

addressed by way of appropriate bail conditions.

            For these reasons the appeal succeeds.  Accordingly, it is ordered that the

applicant be and is hereby admitted to bail upon the following conditions:

1. that he deposits the sum of $50 000,00 with the Assistant Registrar of this honourable court.
2. That pending finalisation of this matter he resides at 109 Edenfield Road, Matsheumhlophe, Bulawayo.
3. That he reports at Bulawayo Central Police Station twice per week, that is to say once on Mondays and once on Fridays between 6am and 6pm.
4. That he does not interfere with state witnesses; and
5. That he surrenders his travel documents, if any, to the Assistant Registrar of this honourable court.

Majoko & Majokoapplicant’s legal practitioners

Attorney-General’s Officerespondent’s legal practitioners