Judgments HB 13/15
Case No. HCB 6/15
Xref 95 A – C/14
MAYIBONGWE BANDA
versus
THE STATE
IN THE HIGH COURT OF ZIMBABWE
MAKONESE J
BULAWAYO 26 JANUARY AND 29 JANUARY 2015
Mr K. Ngwenya for the applicant
Miss N. Ngwenya for the respondent
Bail Application
MAKONESE J: The Applicant is facing a charge of contravening section 126 of the Criminal Law (Codification and Reform) Act [Chapter 9:23], “robbery.”
The allegations are that on the 10th day of June 2014 and at the intersection of Ardleigh and Chelmsford Roads, Matsheumhlope, Bulawayo, the Applicant together with two other co-accused persons whilst armed with a wheel spanner and knife intentionally used violence or threats of immediate violence in order to induce the complainant Noel Matsvangire to relinquish control of his motor vehicle, namely a Honda Fit.
The state alleges that in furtherance of his criminal objectives the Applicant and his co-accused and acting in common purpose together with two accomplices still at large, proceeded to Waverly Night Club in Lobengula Street. The first accused approached the complainant pretending that they wanted to hire his motor vehicle to their residence near the National University of Science and Technology. They paid the complainant the sum of $10 before driving off to their intended destination. The Applicant and another accused followed behind in a Blue Mazda Demio. On reaching Chelmsford road in Matsheumhlope the Applicant and his accomplices ordered the complainant to stop the motor vehicle as one of them wanted to relieve himself. Whilst parked the accused persons suddenly grabbed the complainant by the neck and threatened to assault him with the wheel spanner. One of them produced a knife and threatened to stab the complainant. The complainant was robbed of a cellphone and cash. They robbed the complainant of his Honda Fit motor vehicle, dumped him and drove off.
The state alleges that Applicant and his accomplices drove the stolen car to Kensington area where they stripped the engine, gear box and wheels amongst other vehicle parts.
On 6th January 2015 one of the accused persons, Dereck Nkala was arrested and implicated the Applicant.
The Applicant flatly denies the allegations and says he was nowhere near the scene of the crime on the day in question. He further contends that he was wrongly implicated by Dereck Nkala after he was assaulted by the police. Applicant admits that the Honda Fit motor vehicle was recovered at a house near his grandfather’s plot in Kensington. He avers that the presumption of innocence operates in his favour and that he is entitled to bail pending trial. Applicant points out that the police have completed their investigations and therefore there is no danger of interference with state witnesses.
The application for bail is opposed by the state on the grounds that the state has a strong prima facie case against the Applicant. Further the Applicant’s finger prints were uplifted from the crime scene and matched those taken from the Applicant. The state’s view is that the likelihood of the Applicant absconding are high given the fact that if convicted, the accused faces a long custodial sentence.
I do accept the established principle that the seriousness of an offence on its own is not sufficient ground to deny the Applicant bail pending trial. However, the strength of the state case is an important consideration in applications for bail. In the instant case the accused has proffered a bare denial as his defence. Whilst in a bail application the Applicant is not on trial I cannot ignore the strength of the allegations against the Applicant. As a general rule robbery cases of this nature attract lengthy prison sentences in the event of a conviction. Granting the Applicant bail given the circumstances of the offence as outlined above is likely result in the Applicant being induced to abscond to avoid standing trial.
The bail principles are well set out in section 117 (2) (a) (ii) of the Criminal Procedure and Evidence Act [Chapter 9:07]. The refusal to grant bail and the detention of an accused in custody shall be in the interests of justice if it is established that the accused will not stand trial. In considering whether this ground is established section 117 (3) (b) (ii) of the Criminal Procedure and Evidence Act requires that the court take into account the following factors:-
(i) the ties of the accused to the place of trial
(ii) the existence and location of assets held by the accused.
(iii) the accused’s means of travel and his or her possession of or access to travel documents
(iv) the nature and gravity of the offence or the likely penalty therefore.
(v) the strength of the case for the prosecution and the corresponding incentive of the accused to flee.
(vi) the efficiency of the amount or nature of bail and enforceability of any bail conditions
(vii) any other factor which in the opinion of the court should be taken into account.
In applications for bail pending trial the courts are inclined to lean in favour of the granting of bail where the following factors are established:
(a) the interests of justice will not be prejudiced
(b) there is no danger of the Applicant absconding to avoid standing trial.
See the case of State v Fourie 1973 (1) SA 110.
In the matter of Norman Mpofu v The State HH 63/08, MAKARAU (JP) expressed the view that our courts generally adopt the approach that the more serious the offence, the greater becomes the flight risk on the part of the accused.
In the circumstances, I am satisfied that having regard to the circumstances of the case and the strength of the state case, the Applicant is not a proper candidate for bail.
In the result application is hereby dismissed.
T. J Mabhikwa and Partners, applicant’s legal practitioners
National prosecuting Authority, respondent’s legal practitioners
