S v Abdul (HCB 108 of 2004) [2004] ZWBHC 108 (1 September 2004)

Judgment No. HB 108/04 Case No. HCB 108/04 MUSTAFA ABDUL Versus THE STATE IN THE HIGH COURT OF ZIMBABWE NDOU J BULAWAYO 4 JUNE & 2 SEPTEMBER 2004 T Hara for applicant A P Mpofu for respondent Bail Application NDOU J: This is an application for bail pending trial. The state is opposed to the granting of the application on these grounds, namely, (a) (b) (c) the applicant may abscond and not stand trial. The applicant may commit further offences if granted bail, and The applicant may interfere with evidence against him. During the hearing, Mr Hara, for the applicant brought to my attention that one of the applicant’s co-accused Innocent Ngwenya was granted bail by this court in HC 115/04. The brief facts are that on 29 April 2004 the applicant and his co-accused Edson Maguraushe robbed the complainant of her Ford Bantam, white in colour at gate number 17 Stevenson Road, Malindela, Bulawayo. [In this count Innocent, supra, was not involved]. This is what is now commonly known as car-jacking. They took the stolen vehicle to house umber ‘O’63 Mzilikazi suburb where they removed its canopy and the long range fuel tank so as to change or disguise its identity. On 2 May 2004 the applicant and Edson, supra, teamed up with Innocent, supra, and using the stolen Ford Bantam as their “get-away” vehicle, went to house HB 108/04 number 7 Cocrake Road, Fortunes Gate where they robbed another complainant of her B2500 Mazda vehicle. The complainant’s husband acting swiftly and gave chase to the accused persons. He arrested Edson and recovered that vehicle. Edson led the police to the arrest of the applicant and Innocent and also the recovery of the Ford Bantam. The two vehicles were evidently recovered through the bravery of the second complainant’s husband and police effort. Risk of abscondment The primary question to be considered is whether the applicant will stand trial or abscond. The applicant is an unemployed youthful offender and is prone to absenting himself from home for long stretched of time. The trial has already been set down at the Regional Court. There is a likelihood of lengthy imprisonment of these two charges if the applicant is convicted. Maybe it is time that this court takes judicial notice of the fact that young men of the applicant’s age group are prone to exiting Zimbabwe via unauthorised points of entry/exit the so called “border- jumping”, after committing offences in this part of the country. The robbery in the second count involved the use of a firearm. The cumulative effect of all these factors is tat there is an inducement for the applicant to abscond and no stand trial – S v Hudson 1980(4) SA 145. I associate myself with what MILLER J said in S v Fourie 1973(1) SA 100 at 101G-H- “It is a fundamental requirement of the proper administration 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 serve the needs of justice by refusing to grant bail, even at the expense of the liberty of the accused and despite the presumption of innocence.” Also Hussey v S 1991(2) ZLR 187; Ndlovu v S HH 177-01 and section 116(7)(a) of the Criminal Procedure and Evidence Act [Chapter 9:07]. HB 108/04 Risk of committing of further crimes From the number of bail applications in this court I take cognisance that car- jacking has reached worrying portions in this country and the norm with this type of offence is that its perpetrators do not limit themselves to the theft of one vehicle only. In terms of section 116(7)(C) of the Criminal Procedure and Evidence Act, supra, the court is specifically empowered to refuse bail in instances where the court considers it likely that if the applicant is admitted to bail he would commit an offence. From the facts the applicant has shown a propensity to commit similar crimes. This is a factor that I will take into account – Attorney-General, Zimbabwe v Phiri 1988(2) SA 696 (ZHC); R v Gentry (1956) Crim. L R 120 (CCA) and S v Visser 1975(2) SA 342(C). The firearm used in the second robbery has not been recovered. Likelihood of interference with evidence The firearm used in one of the counts has not been recovered. If released on bail there is likelihood that the applicant will interfere with is recovery. The onus is upon the applicant to prove on a balance of probability that the court should exercise its discretion in favour of granting him bail. In discharging the burden the applicant must show that the interests of justice will not be prejudiced, namely, that it is likely that he will stand his trial or otherwise interfere with the administration of justice or commit an offence – De Jager v Attorney-General, Natal 1967(4) SA 143(D). Looking at the totality of the facts I hold the view that the applicant failed to discharge the above onus. The cumulative effect of the factors that I highlighted above is that the applicant is not a suitable candidate for bail. HB 108/04 I earlier on alluded to the fact that the applicant’s co-accused Innocent was granted bail. It does not, however, necessarily follow that the same should happen to the applicant. Bail has to be individualised in certain circumstances. In casu, the said Innocent was only involved in one count whereas the applicant was involved in both. The involvement of Innocent seem peripheral whereas the applicant was deeply involved. Their roles and circumstances are dissimilar. In the circumstances, the granting of bail to Innocent does not count much in the applicant’s favour. Accordingly the application for bail is refused. T Hara & Partners applicant’s legal practitioners Attorney-General’s Office respondent’s legal practitioners