Denny Mumpande v The State

### Preamble
1
HB 11/21
HCB 369/20
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DENNY MUMPANDE

Versus

THE STATE

IN THE HIGH COURT OF ZIMBABWE

DUBE-BANDA J

BULAWAYO 2 FEBRUARY 2021

Application for bail pending trial

Applicant in person

N. Ngwenya, for the respondent

DUBE-BANDA J: 	This is an application for bail pending trial. This application was determined on written submissions only. Applicant is being charged with the crime of murder as defined in section 47 of the Criminal Law [Codification and Reform] Act [Chapter 9:23]. On the 11 June 2020, applicant appeared before Binga Magistrate’s Court, whereupon he was placed on remand and detained in custody. The allegations from which the charge of murder arises are set out in the Police Form 242, commonly called a Request for Remand Form. It states that: on the 2nd October 2020, the applicant waylaid the now deceased who was in the company of one Believe Siamupa. He ordered Believe Siamupa to leave, and then he struck the deceased with an axe several times on her body, i.e. once on the right hand; once on the knee and twice on the head.

In support of the application, applicant has placed the following facts before court: that he is a family man with eight children, who are entirely dependent on him. He takes care of his children and cattle, which is a source of wealth.

This application is opposed. In Section C of Form 242, it is stated that the applicant has pending cases of kidnapping and rape ref. ZRP Lusulu, CR 03/07/20.  It is alleged that he committed this offence while on bail. It is further stated that he is likely to abscond, as he was arrested at Bulawayo Kraal after he was attempting to flee to Zambia. It is further stated that he is likely to interfere with evidence. Witnesses in this matter are known to him and they fear him because of his violent nature and demeanour. Murder weapons are also yet to be recovered, therefore, if granted bail he might interfere with witnesses and evidence. It is said he is likely to commit further offences, as he is threatening to kill more relatives of the now deceased. Lastly, it is said he is facing a capital offence of which if convicted might face a lengthy jail term and this might induce him to abscond trial if given bail.

The contention by the prosecution is that the applicant is a flight risk, and that he has a propensity to commit further crimes. In terms of section 117(2)(a)(i)(ii) of the Criminal Procedure and Evidence Act [9:07], the refusal to grant bail and the detention of an accused in custody shall be in the interests of justice where one or more of the following grounds are established where there is a likelihood that the accused, if he or she were 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. It has always been accepted that the likelihood or risk that an accused if 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 is a valid ground for refusing bail.  The important proviso throughout is that there has to be a likelihood, i.e. a probability, that such risk will materialise.  A possibility or suspicion will not suffice.  At the same time, a finding that there is indeed such likelihood is no more than a factor, to be weighed with all others, in deciding what the interests of justice are. See: S v Dlamini 1999 (2) SACR 51 (CC) para. 53. Furthermore, the fact that an accused person attempted to run away from the police before arrest and before charges are formally put to him is a factor that this court will have to consider in deciding what the interests of justice are.

In the heads of argument, the prosecution, in opposing the admission of the applicant to bail makes the following submissions are made:

That applicant is said to have been on bail on kidnapping and rape charges when he committed this offence. Thus, he has shown that he has a propensity to commit further offences in the event he is granted bail by this Court. The applicant’s actions escalated from that of allegations of kidnapping and rape to that of murder. Inasmuch as applicant is presumed innocent until proven guilty, his actions show that he is a danger to society and as such should await his trial whilst incarcerated as he has proved that he cannot be trusted to behave on bail.

Furthermore, the applicant was arrested as he attempted to flee the country into the neighbouring country of Zambia. It is the respondent’s view that applicant if granted bail he would flee the jurisdiction of the court as per his initial attempt. It is thus submitted that applicant is not a proper candidate for bail.

In S v Moyo HB 23/05; it was stated that the more serious the offence and the severe the likely sentence the greater the incentive to abscond which becomes stronger where the evidence against the applicant is so overwhelming that conviction is almost guaranteed. In casu, the applicant is facing a serious charge of murder which could attract a sentence of no less than 20 years imprisonment. In this particular case the state has a strong prima facie case as the applicant was seen assaulting and killing the deceased using an axe. The likelihood of a conviction is very high and this would most likely to induce the applicant to abscond and not wait for trial.

It must be mentioned at the onset that when applicant drew his application, he had in his possession Form 242. He in fact attached a copy Form 242 to this application. He therefore was clear about the basis upon which his admission to bail was being opposed. He did not make any attempt to deal with the basis of the opposition as stated in Section C of Form 242. This means that the matter will be determined on the basis of the version provided by the prosecution, which is the respondent here. The facts as set out by the prosecution are not disputed and as a result they will be taken, for the purposes of this application, as correct.

Section 117 (3) (a) of the Criminal Procedure and Evidence Act says, in considering whether the ground referred to in subsection (2)(a)(i) (where there is a likelihood that the accused, if he or she were 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), has been established, the court shall, where applicable, take into account the following factors, namely; the degree of violence towards others implicit in the charge against the accused; any threat of violence which the accused may have made to any person; the resentment the accused is alleged to harbour against any person; any disposition of the accused to commit offences referred to in the First Schedule, as evident from his or her past conduct; any evidence that the accused previously committed an offence referred to in the First Schedule while released on bail; any other factor which in the opinion of the court should be taken into account. In casu, the prosecution contends that applicant has a propensity to commit further crimes. This is anchored on the allegation that applicant committed this offence while on bail for kidnapping and rape.  He is also alleged to have threatened to kill more relatives of the deceased.  I take the view that there is a real likelihood i.e. a probability that, if admitted to bail, such risk will materialise.

Section 117(3)(b) of the Criminal Procedure and Evidence Act , says in considering whether the ground referred to in subsection (2)(a)(ii) (not stand his or her trial or appear to receive sentence) has been established, the court shall take into account; the ties of the accused to the place of trial; the existence and location of assets held by the accused; the accused’s means of travel and his or her possession of or access to travel documents; the nature and gravity of the offence or the nature and gravity of the likely penalty therefore; the strength of the case for the prosecution and the corresponding incentive of the accused to flee; the efficacy of the amount or nature of the bail and enforceability of any bail conditions; any other factor which in the opinion of the court should be taken into account. In casu, it is further contended for the prosecution that applicant is likely to abscond, as he was arrested at Bulawayo Kraal after he was attempting to flee to Zambia. Such an allegation shows that applicant is desirous of absconding. I am of the view that, if admitted to bail, he will abscond, and not stand trial.

The strength of the prosecution case is a relevant factor that this court will have to consider in deciding what the interests of justice are. Applicant was seen assaulting and killing the deceased using an axe. In view of the above, I find that the state has a strong prima facie case against the applicant. He is facing a serious charge of murder. If convicted, he is most likely going to be sentenced to a lengthy custodial term, thus he will be tempted to abscond and not stand trial.  The temptation for the applicant to abscond if granted bail is real. Where there is the slightest indication that applicant’s release on bail might prejudice the interest of justice the court must not opt for that route.

Disposition

I am satisfied that it is not in the interests of justice to admit Mr Denny Mumpande to bail pending trial. Wherefore, the application for bail pending trial must fail, and accordingly, I order as follows:

The application for bail is accordingly dismissed.

National Prosecuting Authority, respondent’s legal practitioners