S v Nyathi and Anor (HB 30 of 2006) [2006] ZWBHC 30 (10 May 2006)

Judgment No. HB 30.06 Case No. HCB 9-10/06 Xref No. HCB 366-7/05 ABRAHAM NYATHI and ACKIM NDLOVU versus THE STATE IN THE HIGH COURT OF ZIMBABWE CHEDA J BULAWAYO 23 MARCH 2006 AND 11 MAY 2006 Mr T. Khumalo for applicant Mr K. Amon for respondent Bail pending trial CHEDA J: Applicants jointly filed an application for bail pending trial on the following conditions:- 1) 2) 3) 4) 5) 6) That they be granted bail in the sum of $10 000 000-00 each to be deposited with the Assistant Registrar (Criminal) High Court of Zimbabwe, Bulawayo. That they reside at No. 5, Fifth Street, Woodville, Bulawayo. That pending the finalisation of this case, they be prohibited from running any butchery in the country or in anyway associate themselves in capital or profit from any butchery. That pending the finalisation of this case, they be prohibited from purchasing any livestock, or selling any livestock without prior written authority from the Attorney General’s Office. That they report daily to Zimbabwe Republic Police, Queenspark Police Station, Bulawayo. That they should not interfere with witnesses. Applicants are facing numerous allegations of stock theft which were committed between September 2003 to August 2004. The background of this case is that on the 28th day of April 2005, police received a stock theft report in the Wollondale area, in the outskirts of Bulawayo. Upon attending to the scene, they received information that the applicants had slaughtered a beast and had taken it to Magwegwe Suburb, Bulawayo where first applicant was running a butchery. The police followed them and found the two applicants off-loading a full carcas from 1st applicant’s Hyundai motor vehicle. The Police confronted them and they tried to run away. First applicant picked up a spear and attacked one of the police officers, Inspector Chikura. The police officer, after verbally warning him and firing a warning shot which 1st applicant did not take heed of, then fired at him fracturing his left arm. This shot disabled him and was accordingly apprehended. Mr Amon for respondent opposed bail on two grounds, namely that applicant is facing a serious offence and that he is likely to abscond if granted bail. The cardinal rule with regards to bail pending trial is that the courts will always grant bail on the basis of the presumption of innocence until proven guilty. Further, the granting of bail, is on the hope and belief that, applicant will stand trial if granted bail as failure to stand trial, prevents and frustrates the proper administration of justice. The fact that applicants are facing serious charges per se is not enough to deny them bail which is their constitutional right. There has to be an additional factor to the seriousness of the crime. Mr Amon has argued that applicants are likely to abscond if granted bail, thereby not standing trial. In S v Fourie 1973 (1) SA 100 at 101 G-H it was held that: “It is a fundamental requirement for the proper admiration of justice that an accused person stands trial and if there is any cognisable indication that he will not stand trial if released from custody, the Court will secure the needs of justice by refusing to grant bail even at the expense of that liberty of the accused and despite the presumption of innocence.” The applicants were caught red handed. This scenerio unfortunately tears apart the strong and revered cocoon of the presumption of innocence thus leaving them exposed. The Court will not release a suspect from custody whose past and relevant conduct points to his inclination towards abscondment. Applicants having been confronted by the police attempted to escape. First applicant went further and attacked the police officer. This type of disobedience of a lawful arrest no doubt speaks volumes of applicants’ potential to abscond if freed from custody. They tried to escape when confined in a room (butchery) what more can they do if left out in the open. The likelihood of them absconding is, therefore, a great and live possibility The seriousness of the offence coupled with their attempt to escape from lawful arrest is evidence enough that they are likely to abscond and if they do they will obviously not stand trial which then defeats and compromises the proper administration of justice. This application is accordingly dismissed. Cheda J………………………………………….. James Moyo-Majwabu applicant’s legal practitioners Attorney General’s Office respondent’s legal practitioner 4