S v Ngundu (B 622 of 2015; REF CRB M 245 of 2015) [2015] ZWHHC 701 (5 August 2015)

1 HH 701-15 B622/15 Ref Case No. CRB M245/15 PERSONALLY NGUNDU versus THE STATE HIGH COURT OF ZIMBABWE ZHOU J HARARE, 29 July & 6 August 2015 Bail application D. Halimani, for the applicant R. Mazvimbakupa, for the respondent ZHOU J: The applicant is facing a charge of murder as defined in s 47 of the Criminal Law (Codification and Reform) Act [Chapter 9:23]. The allegations against him are that on 21 March 2015 and at Madziya Village, Chief Murove, Mwenezi the applicant assaulted the now deceased using a switch and booted feet on the head, back and stomach, thereby inflicting injuries from which the deceased died. After committing the offence the applicant escaped and managed to evade arrest for more than three months after the offence was committed. The applicant was only arrested on 2 July 2015. He has instituted the instant application for admission to bail pending trial in terms of s 117A of the Criminal Procedure and Evidence Act [Chapter 9:07]. The application is opposed by the respondent. The entitlement to bail of a person who is detained in connection with an offence is provided for in s 117(1) of the Criminal procedure and Evidence Act, which says: “Subject to this section and section 32, a person who is in custody in respect of an offence shall be entitled to be released on bail at any time after he or she has appeared in court on a charge and before sentence is imposed unless the court finds that it is in the interests of justice that he or she should be detained in custody.” The above right is now constitutionally guaranteed. Section 50(1)(d) of the Constitution of Zimbabwe provides that any person who is arrested is entitled to be released unconditionally or on reasonable conditions pending a charge or trial, unless there are compelling reasons justifying their continued detention. The Constitution in s 70(1)(a) HH 701-15 B622/15 Ref Case No. CRB M245/15 equally provides that a person accused of committing an offence is, inter alia, entitled to be presumed to be innocent until proved guilty. The two rights referred to above have to be balanced against the fundamental tenet of the proper administration of justice that an accused person must stand trial, and if there is any properly founded apprehension that he will abscond if released from custody, then the court should uphold the demands of justice by refusing to grant bail even at the expense of the liberty of the accused person and the presumption of innocence. See S v Fourie 1973 (1) SA 100(D) at 101. The Criminal Procedure and Evidence Act provides as follows in s 117(2): (i) The refusal to grant bail and the detention of an accused in custody shall be in “(2) the interests of justice where one or more of the following grounds are established – (a) Where there is a likelihood that the accused, if he or she is released on bail will – endanger the safety of the public or any particular person or will commit an offence referred to in the First Schedule; or not stand his or her trial or appear to receive sentence; or attempt to influence or intimidate witnesses or to conceal or destroy evidence; or undermine or jeopardise the objectives or proper functioning of the criminal justice system including the bail system; or (ii) (iii) (iv) (b) . . .” In this case the release of the applicant is opposed on the basis of the seriousness of the charge against him which, according to the state, is supported by facts linking him to the offence. The respondent also contends that the conduct of the applicant after the commission of the offence demonstrates that he is a flight risk. As was held in the case of Mahata v Chigumira NO & Anor 2004 (1) ZLR 88(H) at 92D-E, the attitude of the police to an application for bail, though not necessarily decisive, is a relevant factor to be considered, together with the other relevant factors. In S v Jongwe 2002 (2) ZLR 209(S) at 215B-C, Chidyausiku CJ held that: “In judging the risk that an accused person would abscond the court should be guided by the following factors: (i) The nature of the charge and the severity of the punishment likely to be imposed on the accused upon conviction; (ii) The apparent strength or weaknesses of the State case; (iii) The accused’s ability to reach another country and the absence of extradition facilities from the other countries; (iv) The accused’s previous behaviour; HH 701-15 B622/15 Ref Case No. CRB M245/15 (v) The credibility of the accused’s own assurance of his intention and motivation to remain and stand trial.” The charge of murder which the applicant faces is a very serious one, and may attract a long term of imprisonment upon conviction. As for the strength or weaknesses of the State case, the court is required to assess the allegations set forth in the State papers and the extent, if any, to which the applicant has rebutted those allegations. See S v Makamba (3) 2004 (1) ZLR 367(S) at 375A-D; S v Ncube 2001 (2) ZLR 556(S). The applicant admits that he did assault the deceased prior to her death. The extent of his contribution to the death of the deceased is a matter for the trial court. It is not in dispute that the deceased died some thirty minutes or so after being assaulted by the applicant. The applicant is therefore linked to the death of the deceased. That makes the case against him very strong. It is also common cause that after the death of the deceased the applicant escaped and could not be located until after a period of three months. His explanation that he had panicked when he ran away does not help him, as it is not an assurance that he will not panic again and do the same thing. It is stated in the state papers that the applicant escaped to South Africa after committing the offence. He denies ever crossing the border but does not state where he was hiding for more than three months. The fact that he eventually surrendered himself to the police shows that he has the capacity to successfully elude the police. That clearly makes him unsuitable for release on bail. It is true that the applicant’s co-accused persons were released on bail. But the applicant by his conduct has distinguished his circumstances from those of his co-accused. He cannot rely on their release on bail to seek admission to bail as he has previously evaded arrest by the police. It has also been stated by the investigating officer that the applicant assaulted a potential witness. There is therefore a risk that he will interfere with witnesses should he be admitted to bail. In the premises, the application for bail must be, and is hereby dismissed. Mabulala & Dembure, applicant’s legal practitioners National Prosecuting Authority, respondent’s legal practitioners