Salawe v R (Homicide Case 14 of 2021) [2022] MWHC 147 (6 January 2022)

REPUBLIC OF MALAWI IN THE HIGH COURT OF MALAWI ZOMBA DISTRICT REGISTRY HOMICIDE CASE NO. 14 OF 2021 CHIMWEMWE SALAWE BETWEEN AND APPLICANT 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 1.3. 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-objection 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 likelihood 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 in her favour. Accordingly bail is grated on the following terms - 1.5.1 1.5.2 1.5.3. 1.5.4 1.5.5 1.5.6 1.5.7 1.5.8 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. I order accordingly. Dated this 16" day of December, 2021. Chimwemwe Salawe v The Republic Z.3. V Ntaba JUDGE Sr REPUBLIC © ¥ IN THE HIGH COR" OF MALAWI ZOMBA DIST REGISTRY BAIL APPLICATION CAUSE NUMBER 147 OF 2021 MAVUTO MATAKA BET ARTE) APPLICANT THE REPUBLIC RESPONDENT Coram: Honourable Justice Violet Palikesa-Chipao Debwe, of Counselfor the Applicant Kumwenda, Senior State Advocate, 6% Counsel for the Respondent Kazambwe (Ms), Official Interpreses and Court Clerk RULING ON APPLICATION FOR BALL PENDING TRIAL 1, The Applicant, Mavuto Mataka, is on remand at December, 2018 on the allegation of having caused the death of his brother. 2. The brief facts are thal the Applicant and his broiher went for 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 but did not find him at his house. On following up, he found his brother very weak along the railway line and took him to hospital. 4. a The brother later 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 > 3. The Applicanihas been in custody since he was arrested in September 2018. It is on the basis of the length af stay on remand without prospects of trial in the near future and the fact that the ApPiicant's continued stay in custody is illegal as his vre-trial custody time limit expired jong ARG that the Applicant prays to this court for bail. The State has indicated that investigations were completed but that they are yet to receive the dovket 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 in the Constitution but the Bail Guidelines Act of 2000 offers guidance on what to consider when deciding whether or not it is in the interest of justice to grant bail. The Bail Guidelines Act in Section 3 under Part If on Bail by lays down principles which the court should take into when the Court Paragraph 4(a) to (d), deciding whether or not to grant bail. (a) (b) (c) the likelihood that the accused, if released on bail, will attempt to evade his or her trial the likelihood that the accused, tf he or she were released on bail, will attempt to influence or intimidate witnesses or to conceal cr destroy evidence the likelihood that the accused, if he or she were released on bail, will endanger the safety of the community or any partic.:!a person 0 will commit an offence release of the accused will disturb (d) in exceptional circumstances, the likelihood that th. fhe 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 the'State, the Court may also on its own, notwithsiending any representations to the contrary "inding upon weighing the personal by the Applicant or the State or both, make its circumstances of the Applicant and the interests of jastice. According to Part II Section 9 of 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 perscnal interests of the accused against the interests ofjustice." The State has not opposed the application for bai! anc has xot laid any grounds why bail should not be granted in the interest of justice. The Covet also has not found anything against the granting of bail more so considering that the A.ontcents heve been on remand for over 3 years. The Applicant have overstayed on remand and it is only 'ust that she be released on bail. Bail is therefore granted to the Applicant on the folicviag con titions; a. Cash bond ofK30, 000 b. Two sureties bonded in a non-cash sux f ¥ 100, 390 c, The Applicant and his sureties to produce their national identities d. Applicant is to report for bail at the nezrest wolice station Fridays every fortnight e. Applicant is to surrender travel documents to the court if any. 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" Maich, 2022 at 9am. It is so ordered. Pronounced in Chambers this 6h Day of January, 2022. Violet Palikena-Chipac JUDGE