S v Mathuthu (B 29 of 2015) [2015] ZWHHC 700 (4 August 2015)

1 HH 700-15 B 29/15 THEMBINKOSI MATHUTHU versus THE STATE HIGH COURT OF ZIMBABWE ZHOU J HARARE, 28 July & 5 August 2015 Bail application The applicant in person D. H. Chesa, for the respondent ZHOU J: The applicant is facing allegations of murder as defined in s 47 of the Criminal Law (Codification and Reform) Act [Chapter 9:23]. It is being alleged that on 22 January 2011 at Tafadzwa Mini Market, Unit N, Chitungwiza, the applicant in the company of two accomplices went to a shop belonging to the now deceased. They produced a pistol which they fired into the air before ordering all the persons in the shop to lie down. After that they jumped over the counter and stole cash, some airtime recharge cards and a cellular phone. Upon leaving the premises the applicant and his accomplices allegedly fired two more shots at the deceased and hit the deceased in the stomach and forehead thereby causing his death. The applicant is being jointly charged with the murder with two of his accomplices. In January 2015 the applicant applied for bail pending trial which was dismissed by this court. He has now made a second application based on changed circumstances. The application is opposed by the respondent. Where an application for bail has been refused by a judge or magistrate a further application for admission to bail may only be made if such an application is based on facts which were not placed before the court which determined the previous application and which facts have arisen or have been discovered after that determination. See Proviso (ii) to s 116 of the Criminal Procedure and Evidence Act [Chapter 9:07]; S v Barros & Ors 2002 (2) ZLR 17(H) at 20B-C. The passage of time is a change in circumstances upon which a further application for bail may be entertained by the court. See S v Aitken (2) 1992 (2) ZLR 463(S); S v Stouyannides 1992 (2) ZLR 126(S); S v Murambiwa S – 62 – 92. HH 700-15 B 29/15 The applicant states that for almost four years his trial could not commence because one of his co-accuseds was admitted at a psychiatric unit. Mr Chesa for the respondent submitted that the applicant’s co-accused is now fit to stand trial. Also, the trial date has already been given and the trial is due to commence on 30 September 2015. While it is true that the mere fact that a trial date has been set is not a ground for refusing bail, it is, to me a relevant factor in the instant case in which the complaint is primarily founded upon delay in the commencement of the trial. That fact is, of course, taken together with the other considerations set out in s 117(2) of the Criminal Procedure and Evidence Act. See also S v Jongwe 2002 (2) ZLR 209(S) at 215B-C. From the facts alleged, it seems to me that that the applicant is a flight risk. The offence which he faces of murder committed in the course of a robbery is a serious one. The evidence against him is strong, as is shown by the fact that the firearm used in the commission of the offence was recovered from the applicant. Also, the applicant and his accomplices were not only positively identified at an identification parade but they also made indications at the scene of the crime which strengthen the case against them. The offence was committed in the presence of witnesses who were inside the shop when the applicant and his accomplices pounced. There is therefore very little or no chance that the witnesses failed to properly identify the applicant. The applicant’s co-accused persons are in custody. It is likely that if the accused person is released he will abscond thereby jeopardising the administration of justice. In the premises, the application for bail is hereby dismissed. National Prosecuting Authority, respondent’s legal practitioners