D.T. MWONZORA AND TWENTY FOUR OTHERS
HIGH COURT OF ZIMBABWE
HARARE9, 10 and 11 MARCH 2011
Appeal by Attorney-General against the granting of bail by the magistrate
E. Nyazambafor the appellant
T. Maanda, with T. Zhuwarara and J .Bamu for the respondents
MAVANGIRA J: The respondents were placed on remand on charges of public violence as defined in s 36 of the Criminal Law (Codification and Reform) Act. [Cap 9:23]. The magistrate at Nyanga, before whom they appeared, admitted them all to bail under specified conditions. Counsel for the State then immediately advised the court a quo that the State intended to appeal against the decision in terms of s121 of the Criminal Procedure and Evidence Act. This is the appeal against the decision of the magistrate.
I shall deal first with a point in limine which was raised by the respondents’ counsel during his address in response to State counsel’s submission. It was contended that this appeal is not properly before this court because the High Court (Bail) Rules 1991, envisage service of the written statement referred to in Rule 7 (1) on the magistrate against whose decision the appeal is made. It was submitted that there has been no such service and consequently the appeal is not properly before the court. Furthermore, that whilst no rule specifically requires the appellant to serve on the magistrate, this requirement can be inferred from subrule (3) of rule 7. The subrule states that where practicable, a magistrate on whom a statement has been served shall file with the Registrar his written comments on the appeal at least three hours before the hearing. It was also submitted that subrule (3) must be read in conjunction with subrule (2).
The appellant’s contention was that there is no such requirement in the rules for the appellant to serve the written statement upon the magistrate. Furthermore, that in any event, even if there was therein such a requirement, the appellant did comply with it albeit the appellant is at this particular stage unable to furnish proof of such service on the magistrate; given the limited time in which they have had to respond to the preliminary issue. It was submitted that if it was given the opportunity, the appellant would be in a position to furnish proof of such service to the court.
Subrule (1) of rule 7 states as follows:
“An appeal by the Attorney-General in terms of paragraph (b) of subsection (1) of section 111A of the Criminal Procedure and Evidence Act [Cap 9:07] shall be noted, within seven days after the magistrate granted bail, by filing with the registrar a written statement setting out –
the name of the person who was granted bail; and
where the appeal is brought against the decision of a magistrate granting bail to a person –
the offence with which the person is charged; and
the court by which and the date on which the person was granted bail;
and … .”
Subrule (2) states:
“As soon as possible after the appeal referred to in subrule (1) has been filed –
the appellant’s legal practitioner, where the appellant is legally represented; or
the registrar where the appellant is not legally represented;
shall cause a copy of the written statement referred to in subrule (1) to be served on the Attorney-General or his representative.”
It is patently clear that subrule (2) cannot possibly have any place in appeals by the Attorney-General. A reading of paragraphs (a) and (b) of the subrule makes it clear that this subrule cannot be referring to the Attorney-General. The inapplicability of this rule is further confirmed by the requirement for service on the Attorney-General or his representative. The interpretation sought by the respondents would lead to absurdity as the Attorney-General cannot be required to serve the written notice filed in terms of subrule (1), on himself.
Subrule (3) which the respondents placed much emphasis on, provides as follows:
“Where practicable, a magistrate on whom a statement has been served in terms of subrule (2) shall file with the registrar his written comments on the appeal at least three hours before the hearing of the appeal.” (Emphasis added)
Subrule (3) can thus not be read on its own. It is a sequitur to subrule (2). The written statement which the magistrate is given an opportunity to comment on, is a statement which has been served on him in terms of subrule (2); yet subrule (2) has no such requirement for the magistrate to be served with the written statement.
Whatever the intention of the draftsperson was in this regard, it is not the role of this court to introduce its own words into the two subrules with a view to making them compliant with procedures to be followed in appeals by the Attorney-General. The two subrules (2) and (3) do not appear to have any place in the matter at hand. Until they have been amended to make clear what the draftsman’s intention is or was, this court has no basis or justification for finding that the Attorney-General is required to serve on the magistrate the written statement referred to in subrule (1).
It was for these reasons that I found against the respondents on the preliminary issue raised. I found that the appeal is properly before this court.
The appellant’s grounds of appeal in this matter are that the magistrate misdirected himself by not considering that:-
“(a) the offence the respondents are facing is inherently serous.
(b) Respondents are likely to abscond in the face of the serious charges which will no doubt attract a long term of imprisonment upon conviction.
(c) Respondents will interfere with witnesses and investigations.
(d) Release of respondent will endanger the safety of the community in which the
offence was committed.
(e) Release of respondents is likely to trigger severe loss of sense of peace and security
and will result in public disorder.”
The appellant prays that the order of the court a quo be set aside and that the respondents
remain in custody until the trial is finalised. The appellant contends that justification for the granting of its prayer is to be found in the fact that there is no indication in the magistrate’s written decision that he applied his mind carefully to the concerns and fears raised by the State. The said concerns and fears are said to be well set out in the Request for Remand form 242 as well as in the affidavit of the Investigating Officer attached thereto.
The Request for Remand form 242 and the Investigating Officer’s affidavit list the following as the reasons for opposing bail, which reasons were placed before the magistrate by the public prosecutor at the bail hearing:
that the appellants (accused) are facing a serious charge which attracts a custodial sentence of up to 10 (ten) years hence they may abscond in order to avoid a possible conviction and sentence.
that the appellants are persons of influence in the Nyamaropa area Nyanga, hence they are likely to interfere with witnesses/evidence.
that they are likely to commit similar or other offences judging form the way they “courageously and wantonly committed this offence to further their political ends.
that the police are still making frantic efforts to arrest seventy (70) outstanding accused persons and that the release of the respondents may influence or cause the disappearance of the seventy.
The respondents in opposing this appeal contend that no misdirection on the part of the
magistrate has been shown or proven. They contend that that there is therefore no basis for this court to exercise fresh discretion in this matter. They also contend that the magistrates written decision refers not only the legal principles relied upon but also the facts to which the legal principles were applied.
Besides citing 2 case authorities, the magistrate’s decision reads as follows:-
“The court has put into cognisance both parties’ submissions concerning the issue of
bail. As the law requires in bail issue, the right to liberty is one of the most
fundamental rights and should not be lightly interfered with. The court should lean
in favour of protecting the right to liberty , unless state established the necessity to
deprive one of their liberty pending trial.” (sic)
In S v Ndlovu 2001 ( 2 ) ZLR 261 ( H) The court should strike a balance between the interests of society and the liberty of the accused. This accused should stand trial and that there is to be no interference with witnesses. Bail must therefore be granted provided the interests of justice will not be prejudiced.”
In S v Kuruneri HH111/04If the state’s fears of that the accused will abscond or interfere with witnesses and the applicants’ assurances to the contrary are equally balanced, the presumption of innocence would require the court to lean in favour of the liberty of the person and granted bail.
Reasons for opposition led by the State are that: (1) seriousness of the offence (2) interference with witnesses and that the outstanding perpetrators. (sic). These are not enough to deny one bail basing on the issues of need for accused persons to be given the presumption of innocence before they are tried.
Bail is granted on the following conditions:-
A perusal of the magistrate’s written decision shows that the first three paragraphs thereof in effect deal with or refer to legal principles. What might be referred to as or what purports to be reference to the merits of the matter appears only in the fourth paragraph.
InTaruwona and Another v The State HH 6/2005 at page 3 of the cyclostyled judgment, MAKARAU J. as she then was said:-
“It is trite in my view that when a Judicial Officer decides on an application, he or she must at least refer to that legal principle upon which the decision is based in addition to the facts upon which the legal principle is applied. In the above ruling by the trial magistrate, no legal principle is referred to and the evidence that the claims to have looked at thoroughly is not referred to. It is the lack of these basic features in the ruling by the trial magistrate that in my view constitutes the misdirection on his part.”
In casu, the magistrate referred to legal principle. He did not however refer to the evidence, or as he put it, the submissions that he looked at or had regard to in arriving at his decision. He made much generalised statements. As in the Taruwona case, (supra), this lack of a basic feature in the magistrate’s written decision constitutes a misdirection on the part of the magistrate. In the result, and having established misdirection on the part of the magistrate, this court is now at liberty to exercise fresh discretion in this matter.
Before the court a quo the respondents’ legal practitioners made submissions in answer to the State’s laid out fears, which fears have already been listed earlier in this ruling. With regard to the first stated fear or concern, it was submitted that the seriousness of an offence does not on its own make a person ineligible for bail. He cited S v Hussey 1991 (2) ZLR 187 (SC) at 192 in support of his submission. He further submitted that the seriousness of an offence taken together with other considerations may however, lead a judicial officer properly to refuse the granting of bail.
Regarding the second fear or concern, it was submitted that this is a bald statement or assertion which does not amount to cognisable indication of a likelihood to abscond. It was submitted that there is no indication that any of the respondents would abscond if admitted to bail. As to the third ground it was submitted that the State did not indicate how the respondents would interfere with witnesses and the investigations. The basis for this fear, according to the public prosecutor, was the allegation that the respondents had blocked and hindered the safe passage of an ambulance which was ferrying an injured victim of their violence from Nyanga Hospital to a referral centre. It was in response submitted that this fear could not reasonably attach to all the respondents as they were not all arrested at the same place and at the same time. The State had not indicated which of the respondents were arrested at the hospital and are thus alleged to have blocked the ambulance’s way. It was submitted that they cannot all be denied bail on the basis that they blocked the ambulance’s way. It was stated to the magistrate that eleven of the respondents were abducted by certain persons and dropped off at Nyamaropa Police Station. The first respondent was apparently arrested whilst he was at Parliament. It was submitted that these twelve were not arrested at the scene of the crime, and furthermore, that the witnesses were not known to the appellants.
As to the fourth concern it was submitted that the State has not proffered any evidence that these respondents or any of them have a propensity or inclination to commit offences. The same submission was repeated in response to the fifth concern of the State. The State also made the further submission that the respondents must stay in custody for their own safety as they would thus be protected from criminal activities which might be carried out against them by members of the community. The response thereto was that that fear by the State must not hinder the respondents’ right to liberty. S v Bhebhe & Ors 2002 (1) ZLR 137 was cited by the respondents’ counsel(s?) in support of this submission in response. The headnote thereof records that it was held that fears for the safety of the accused because of the unlawful actions of the mob outside the courtroom, threatening to kill the accused, were not a ground to refuse to grant bail
The first respondent’s legal practitioner laid before the court detailed submissions regarding his circumstances and the reason why the interests of justice will not be prejudiced or jeopardised by his admission to bail. Similarly the legal practitioner for the second to the twenty third respondents also made submissions on the lack of cogency of the State’s reasons for opposing bail. Submissions made in this regard include the following: that all the respondents have no links outside the country; they have no travel documents; they are not persons with influence; they do not reside in the same village; they are not known to have committed similar offences; they are farmers and have been detained during the rainy season; they are of fixed abode and are permanent residents with dependants. It was submitted in addition, and with particular reference to the fourteenth and fifteenth respondents, that they are husband and wife and noone was looking after their children. With particular reference to the thirteenth respondent, it was also submitted that he was 82 years old and is partially blind and thus would not abscond. The tenth and the twenty third respondents were also said to be employed. The further submission was made that the seventy who are allegedly still to be arrested, do not need to be told to flee by the respondents, upon the respondents’ release. It was finally submitted that the court could impose appropriate conditions to the respondents’ bail in order to ensure their attendance at their trials.
The submissions pertaining to the second to the twenty third respondents were adopted in respect of the twenty fourth respondents.
In response to all these submissions the public prosecutor addressed the court in the following terms:
“The defence has dismally failed. The State stands by it grounds, especially second to twenty third. Accuseds’ submissions must be a joke or circus. We stand by our submissions.”
It appears to me that this is the same situation which was faced by the court in S v Lotriet 2001 (2) ZLR 225 (H) where at 228D the following was stated:-
“At the resumed hearing his (the Attorney-General’s representative’s) answer to the allegations was that Mr. Ndlovu ‘has not been charged with fraud – but with [contravening] the Prevention of Corruption Act. Hence each matter is dealt with according to its own facts and merits’. That bald and general response by the Attorney General provides no answer to detailed allegations made by the applicants. …. .
In the result, therefore, while even if it is not possible to make positive findings on the allegations made by the applicants, those allegations remain unanswered or, at best, inadequately answered by the Attorney-General. In an application for bail pending trial, the initial onus is on the State to prove the necessity of keeping the applicants in custody. It is not necessary for the applicants to prove that they are to be released on bail. The response of the Attorney-General does not discharge that onus.”
In Kuruneri v S HH111/04 at p 4 of the cyclostyled judgment, Hlatshwayo J stated the following:
“In my humble view therefore, the notion of the accused having an onus to discharge to enable him or her to be admitted to bail is not part of our law as legislated. Having cleared this legal debris, then the place of the constitutional presumption of innocence in bail application becomes clearer. The presumption operates fully and at the general level. It is because of the presumption of innocence that the courts are expected, and indeed required, to lean in favour of the liberty of the accused. In its request for remand (Form 242) the State puts across its reasons for opposing the granting of bail. In his or her application for bail, the applicant addresses the concerns of the State and makes any other averments which tend to favour his admission to bail. The State then responds. Finally, the judge or magistrate assesses all this information with a view to ‘strike a balance between the interests of the prosecutor in obtaining justice for the State, as one party in the accusatorial process, interests of the accused in obtaining justice for himself’ (Legal Forum, op cit., p26). If the finding is that, to use the words of GUBBAY CJ in Aitken’s case, ‘the case against the applicant s neither obviously strong nor obviously weak’, that the State’s fears of abscondment or interference with witnesses and the applicant’s assurances to the contrary are equally balanced, then the presumption of innocence would require the court to lean in favour of the liberty of the accused person and grant bail.”
In S v Benatar 1985 (2) ZLR 205 (HC) at 210D the following was stated:
“It has been said:
In striking a balance between the liberty of the subject and the proper administration of justice, the imposition of conditions can be decisive. Where bail can be granted subject to safeguarding conditions, the court should, if possible, lean in favour of doing so…. (See headnote, S v Bennett 1976 (3) SA 652 (C).”
In casu the State has not in my view, shown why each individual respondent ought not to be granted bail or is not a suitable candidate for bail. Having heard the submissions made on behalf of the respondents by the respondents’ legal practitioners, the public prosecutor did not take it upon himself to answer to the detailed allegations made. He gave a rather bald and generalised response. In answer to questions posed by this court, State counsel submitted that the circumstances of the rest of the respondents were not given as much attention or coverage by both the public prosecutor and the respondents’ legal practitioner, as was given to the first respondent’s. I may comment on this in passing. There is an element of truth in this submission albeit in varying degrees with respect to the public prosecutor and the respondents’ legal practitioner. This observation seems to me to be a sad reflection of the reality manifesting in this case. Although twenty four respondents are cited and are all represented by the one counsel, it is only the first respondent whose cause has received most of the individualised and in this case animated attention from both the State and the defence counsel. This same scenario appears to have also prevailed in the proceedings before the magistrate. Could this apparent differentiation be based on the fact that the first respondent is a public figure and a prominent member of society and the other respondents are not? If this be so, this is no valid justification for such an approach as the law does not discriminate. All persons are viewed equally before the law. I need not comment any further on this aspect.
For the reasons discussed above, I am satisfied that it has not been shown to this court that each and every one of the respondents is not a suitable candidate for bail. It is my considered view that appropriate or suitable conditions can be imposed upon the respondents to ensure that the proper administration of justice will not be prejudiced.
I therefore find that the respondents are entitled to bail. The appellant’s appeal is dismissed. This finding was pronounced in court on 11 March 2011. I then proposed to impose the same conditions as were set by the magistrate. I also proposed to add a condition requiring each respondent to periodically report and present himself or herself to the Police. I then invited both counsel(s?) to assist the court in suggesting any other possible and suitable conditions or make any other submissions they may wish to make on the issue of applicable conditions, for the consideration of the court. Both counsel asked for an opportunity to confer amongst the parties. The request was granted and they advised the court of their agreed position on this aspect. Thereafter orders were issued to the following effect:
1. Each respondent shall deposit US$50.00 with the clerk of court at Nyanga Magistrates Court.
2. Each respondent shall reside at his or her given address until the finalisation of this matter
3. (a) The first respondent shall report at Harare Central Police Station, CID Law
and Order section once every Friday between the hours of 6.00am and 6.00pm.
(b) Each and every one of the second to the twenty third respondents shall report at Nyamaropa Police Station once every Friday between the hours of 6.00am and 6.00pm.
(c) The twenty fourth respondent shall report at Nyanga Police Station once every Friday between the hours of 6.00am and 6.00pm.
4. Each respondent shall not interfere with State witnesses and investigations directly or indirectly until the finalisation of this matter.
The Criminal Division, Attorney-General’s Office, appellant’s legal practitioners
Zimbabwe Lawyers for Human Rights, respondents’ legal practitioners