Salawe v R (Homicide Case 14 of 2021) [2022] MWHC 150 (6 January 2022)

? 4] HE A Er TT yf REC E TURERGS | REPUBLIC OF MALAWI i IN THE HIGH COURT OF MALAWI ZOMBA DISTRICT REGISTRY HOMICIDE CASE NO. 14 OF 2021 CHIMWEMWE SALAWE APPLICANT BETWEEN AND THE REPUBLIC RESPONDENT CORAM: Honourable Justice Z. J. V. Ntaba Ms. A. Musa, Counsel for the Applicant Mr. A. Mphepo, Counsel for the State Ms. C. Nyirenda, Court Clerk and Interpreter RULING 1.1 1.2 The Court is hearing this application for the second time following an adjournment by the Court to allow the State. During the first pleas and directions hearing on 15" November, 2021, the Court was informed that the accused was arrested on 18" September 2021 on the allegation that she had caused the death of Emmanuel Maganga due to a debt owed to her. The circumstances of the case were that following the failure to pay the debt owed, the accused locked the deceased in a car where he became unwell and eventually died. The State indicated to the Court that the hearing could not proceed as they had not finalized investigations as the offence had occurred in September, 2021 as such they were seeking an adjournment to conclude the same, The accused argued that it was not known how much time the State wanted to conclude the investigations, It was their contention that the accused in the circumstances be given bail as such would be just and fair. Accordingly, the particulars of the accused are that she is aged 35 and hailing from Poko village under Traditional Authority Nkanda in Mchinji. She is a business woman and owns a shop pin Mulanje and has a child aged 11. She resides in Nkhonya village under Traditional Authority Chikumbu in Mulanje. She prayed that she will abide by the terms and conditions set by the Court if bail was granted. The Court refused to grant bail and granted the State, their prayer for an adjournment because the statutory pre-trial custody limit had not lapsed. Chimwemwe Salawe v The Republic 13 1.4 The pleas and directions hearing resumed on 13" December, 2021 and the Court was informed by the State that investigations had been completed however they had still not been furnished with the police docket. The State was therefore once again praying for another adjournment. In response the Applicant reminded the Court of its earlier bail application and indicated to the Court that the State was not objecting. The State confirmed their non-objection and only prayed that bail conditions be those that allow for the attendance of the accused for trial. The Court has carefully reviewed the application and notes the non-cbjection by the State. In terms of the accused, it is noted that her statutory pre-trial custody limit following her arrest expires on 18™ December, 2021. Notably, it has been advanced that investigations are completed, therefore indicating to the Court that there is a small lilkelihood that the accused would tamper with evidence or witnesses. Taking into account the law on bail, this Court reminds itself that the same is a constitutional right albeit limited. The limitation however is based on the interests of justice as well as the Court's discretion which is this case highly favour the granting of bail. 1.5 Accordingly, this Court hereby determines that the interests of justice in terms of Ms. Salawe be granted bail as its her constitutional right and the balance in this case rest int her favour. Accordingly bail is grated on the following terms - 1.5.1 1.5.2 that she pay a cash bail bond of K300,000.00 before her release; she provide two sureties to be examined by the Assistant Registrar who will be bonded for a non-cash sun of K1,000,000.00 each; she report to Phalombe Police Station once every month on a Tuesday; she surrender any travelling document; she seek permission of Office in Charge of the above Police Station to travel outside Phalombe; she provide a copy of her national identification card before her release; she not interfere with State witnesses or nor tamper with evidence; and she be bound to keep the peach and not commit any of crime. 1.5.3 1.5.4 1.5.5 1.5.6 1.5.7 1.5.8 1 order accordingly. Dated this 16" day of December, 2021. Chimwemuwe Salawe v The Republic 7.1. V Ntaba JUDGE / ; REPUBLIC {5 Pi IN THE HIGH CORT OF MALAWI ZOMBA DISTE OT REGISTRY BAIL APPLICATION CAUSE NUMBER 147 OF 2021 BETwWK®E MAVUTO MATAKA ine. Ceseuiviiieis enna APPLICANT THE REPUBLIC isn iicnis ens seseniee RESPONDENT AD Coram: Honourable Justice Violet Palikesn-Chipao Debwe, of Counsel for the Applicani Kunnwvenda, Senior State Advocaie, of Counsel for the Respondent Kagambwe (Ms), Official Interpreier and Court Clerk RULING ON APPLICATION FOR BAIL PENDING TRIAL 1. 2. The Applicant, Mavuto Mataka, is on remand at December, 2018 on the allegation of having caused the death of his brother, The brief facts are that the Applicant and his brother went {or bear drinking. His brother wanted to go to secondary school but the Applicant stopped him. Later his brother sneaked out and the Applicant went to look for his brother at his house bui did not find him at his house. On following up, he found his brother very weal: elcng the railway line and took him to hospital, IE a The brother fater died and the Applicant was arrested on the allegations that he had caused the death of his brother being the last person seen with his brother The Applicanthas been in custody since he was arrested in September 2018. It is on the basis of ths lengih of stay on remand without prospects of trial in the near future and the fact that the Apeiicant’s continued stay in custody is illegal as his pre-trial custody time limit expired long Ao, . that the Applicant prays to this court for bail. The State has indicated that investigations wers completed but that they are yet to receive the dorket from the Police. The State did not object to the bail application. The right to bail is guaranteed by section 42(2) (e) of the Constitution is subject to the interests of justice. Interest of justice has not been defined mm the Constitution but the Bail Guidelines is in the Act of 2000 offers guidance on what to consider when deciding whether or not it interest of justice to grant bail. The Bail Guidelines Act in Section 3 under Part IT on Bail by the Coust Paragraph 4(a) to (d), lays down principles which the court should take into when deciding whether or not to grant bail. (a) the likelihood that the accused, if released on bail, will attempt to evade his or her trial or she were released on bail, will attempt fo (b) the likelihood that the accused, if he (c) influence or intimidate witnesses or to conceal ox destroy evidence the likelihood that the accused, if he or she were released on bail, will endanger the safety of the community or any particuttar parson or will commit an offence (d) in exceptional circumstances, the likelihood that the release of the accused will disturb the public order or undermine the public peace or security The duty lies on the State to satisfy the court why bail should not be granted in the interest of justice. Whilst the burden to show that the interests of justice require further detention lies on thé" State, the Court may also on its own, notwithstanding any representations to the contrary t finding upon weighing the personal by the Applicant or the State or both, make its ince circumstances of the Applicant and the interests of justice. According to Part II Section 9 of “ue prosecution does not oppose the the Bail Guidelines Act, “Notwithstanding the fact tha granting of bail, the court has the duty to weigh up the personal interests of the accused against the interests of justice.” The State has not opposed the application for ba’ ani has r.ot laid any grounds why bail should not be granted in the interest of justice. The Court also has not found anything against the puiicants have been on remand for over 3 years. granting of bail more so considering that the A is only ust that she be released on bail. Bail The Applicant have overstayed on remand and it is therefore granted to the Applicant on the following conditions; a. Cash bond of K30, 000 Two sureties bonded in a non-cash sm FICI00, 500 b. ¢. The Applicant and his sureties to produce their national identities d. e. Applicant is to report for bail at the nezrest Applicant is to surrender travel documents to the gourt if any. : ration Fridays every fortnight 8. The State is directed to take all preliminary steps for the trial of the Applicant including committal proceedings and filing of disclosures within 60 days from today. The matter is to come for plea and directions on 10" Match, 2022 at Yam. It is so ordered. Pronounced in Chambers this 6 Day of January, 2022. [oe Violet Palikena-Chipae JUDGE,