Edwin Chiringa v The State

### Preamble
1
HB 251/22
HCB 357/22
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EDWIN CHIRINGA

Versus

THE STATE

IN THE HIGH COURT OF ZIMBABWE

MAKONESE J

BULAWAYO 4 & 6 OCTOBER 2022

Bail Application

N. Ncube for the applicant

Ms C. Mabhena for the respondent

MAKONESE J:	This is an application for bail pending trial.  The applicant is facing a charge of contravening section 45 (1) (b) as read with section 128 (b) of the Parks and Wildlife Act (Chapter 20:14) as amended in section 11 of the General Laws Amendment 5/2011.

The brief allegations are that on the 19th of September 2022 at corner Napier Road and Matopos Road, Bulawayo, the applicant was found in possession of one live pangolin, which is a specially protected animal without a licence in contravention of the Act.  The applicant was arrested in the company of Reason Nkala, Mbonisi Dube, Wiseman Manyika, Crispen Ncube and Nkosentsha Hlongwane.  The police arrested all the five accused persons for possession of the pangolin.  The applicant admitted the offence in his warned and cautioned statement.  Applicant exonerated his co-accused persons and averred that they were only arrested because they were in his company. They have since been released on bail.

Submissions by the applicant

Applicant submits that on the 18th of September 2022 late in the afternoon he left his homestead in Gwanda to look for his goats in the grazing area.  He saw an odd creature with scales all over which had coiled itself up in a round shape.  He realized that it was a pangolin.  Applicant picked up the pangolin.  His intention was to hand the pangolin to the President of Zimbabwe.  On the 19th September 2022 applicant placed the pangolin in a monarch bag and proceeded to Bulawayo.  He met a neighbor one Reason Nkala at a bus stop.  Applicant avers that although he had physical possession of the pangolin at the time of his arrest he lacked the mental capacity to the possession and control of the pangolin as he intended to take the same to the President of the Republic of Zimbabwe.

Submissions by the respondent

The State submits that there are compelling reasons for the denial of bail.  The applicant and 5 other co-accused persons were arrested in connection with the possession of the pangolin.  Applicant who admitted possession of the protected animal exonerated his co-accused persons.  The state submits that the applicant is facing a serious offence which attracts a minimum mandatory sentence of 9 years upon conviction.  In S v Hussey 1991 (2) ZLR 187, EBRAHIM JA stated that the seriousness of an offence on its own does not justify the incarceration of an accused pending his trial.  The state contends, however, that there is a strong prima facie case against the applicant.  The likelihood of a conviction is likely to induce the applicant to abscond.

Analysis of the law

In terms of section 50 (1) (d) of the Constitution, 2013 an arrested person must be released unconditionally or on reasonable conditions pending his trial unless there are compelling reasons justifying his continued detention.  It is important to note, as pointed out in S v Moyo HB-307/17 that this constitutional provision must not be read in isolation but must be carefully balanced with the fundamental principle that the proper administration of justice demands an assurance that an accused person will indeed avail himself for trial when the time comes.  It follows that the risk of abscondment is central to the determination of an application for bail.

In S v Jongwe 2002 (2) ZLR 209 (S), CHIDYAUSIKU CJ held that in judging the risk of abscondment the court ascribes to an accused “the ordinary motives and fears that sway human nature.”  It was further held that the critical factors the court must take into consideration when assessing the risk of abscondment are.

the severity of the charges

the severity of the punishment likely to be imposed upon conviction

the apparent strength and weakness of the State case.

In this application, applicant admits that he was in physical possession and control of the pangolin.  The state has to prove mental possession in order to secure a conviction.  Applicant’s allegation that he was taking the pangolin to the President sounds hollow.  His defence will ultimately be tested and determined by the trial court.  On the basis of applicant’s own admission that he possessed the pangolin, the state has a strong prima facie case against the applicant.  It is my view, that the realization by applicant that he may be sentenced to a lengthy term of imprisonment will provide sufficient inducement for him to abscond and not attend his trial.  The paramount consideration in applications of this nature is the interests of the due administration of justice.  The state has established that there are compelling reasons for the denial of bail.

In the circumstances, the application for bail pending trial is hereby dismissed.

Ncube & Partners, applicant’s legal practitioners

National Prosecuting Authority, respondent’s legal practitioners