Judgment No. HB 15/15

                                                                                                                                                                        Case No. HCB 07/15

                                                                                                                                                                 Xref No. Byo 94 A- C/14

BLESSING NHAMO

versus

THE STATE

IN THE HIGH COURT OF ZIMBABWE

MAKONESE J

BULAWAYO 23 JANUARY AND 29 JANUARY 2015

Mr Sengweni for the applicant

Miss N. Ngwenya for the respondent

Bail Application

MAKONESE J:        The Applicant is self employed.  He operates a taxi business and drives his own taxi for a living.  The Applicant together with other accused persons, namely Derek Nkala and Mayibongwe Banda are facing charges of robbery as defined in section 126 of the Criminal Law (Codification and Reform) Act [Chapter 9:23].  It is the state’s case that on the 10^th June 2014 and at the intersection of Ardleigh Road and Chelmsford Road, Matsheumhlope, Bulawayo, the Applicant together with his accomplices, whilst armed with a wheel spanner and a knife, intentionally used violence or threats of violence to induce the complainant, who had lawful control over a Honda Fit, to relinquish his control over the said motor vehicle. 

The Applicant applies for bail pending trial and submits that he is a good candidate for bail for the following reasons:-

(a)        the Applicant is a person of fixed abode.

(b)        he is self employed and his family is dependent on the proceeds of his taxi business.

(c)        Applicant has no previous convictions and has no pending matters of a similar nature

(d)       the fact that the offence he is facing is serious on its own is not sufficient ground to deny him bail.

            The Applicant denies the offence.  He contends that he is jointly charged with the other

 two accused persons only because he was found in possession of a gear box which was sold to

 him by the said accused persons.    He further avers to that he paid the sum of $300 for the gear box.  In Applicant’s assessment, the state case is weak and there are high chances that he will be acquitted at trial.

The state opposes the granting of bail in this matter and the following grounds:-

(a)        Applicant is facing allegations of a serious nature and the likely sentence in the event of a conviction might induce him to abscond.

(b)        The state has a strong prima facie case against the Applicant

(c)        Investigations are still incomplete and there is a possibility that if granted bail the

            Applicant may interfere with the evidence and the witnesses.

(d)       The investigating officer deposed an affidavit wherein he asserted that when Applicant realised that his arrest was imminent he evaded the police and went to his residence where he disposed some of the property he obtained as proceeds of the crime in an effort to frustrate investigations.

(e)        The Applicant is directly linked to the offence in that the gear-box stripped from the stolen motor vehicle was found fitted on Applicant’s motor vehicle.

            In the matter of S v Nhlovu 2001 (2) ZLR 261 the learned judge, NDOU J stated at page

 264 as follows:

            “The primary question to be considered is whether the Applicant will stand trial or abscond.  Of equal importance is whether he will influence the fairness of the trial by intimidating witnesses or tampering with evidence.  A further consideration is whether the Applicant if released, will endanger the public or commit an offence.”

            It is trite that in bail applications, the court must strik0065 a balance between the interests of

the public and the proper administration of justice as against the interests of the Applicant.  It is

my view that the presumption of innocence must be weighed against all the available facts.  In

casu, the Applicant contends that the gear-box removed from the stolen Honda Fit was found

affixed to his motor vehicle.  His defence is that he is an innocent purchaser.  He paid for the

gear-box and had no knowledge of the robbery.  The problem though is that the Applicant was

arrested after being implicated by his co-accused.  He attempted to conceal evidence when arrest

was imminent.  The finger prints from the crime scene match those extracted from him.

            In accordance with the provisions of 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.

            I am mindful of the fact that a bail application is not a trial on the merits but I am satisfied in the instant case that it is neither desirable nor in the interests of justice for the Applicant to be granted bail pending trial.  If granted bail, the Applicant will most likely be tempted to abscond to avoid a trial.  The likelihood of a lengthy prison sentence upon conviction is an incentive for the accused to skip bail and avoid a trial.

            It should be noted that the seriousness of an offence on its own is not a good ground for denying the Applicant bail, but the strength of the case against him, coupled with his attempt to conceal vital evidence leads to the conclusion that the Applicant cannot be a good candidate for bail pending trial.

            In the circumstances, the application is hereby dismissed.

T. Hara and partners, applicant’s legal practitioners

National Prosecuting Authority, respondent’s legal practitioners