Masopo Ronaldo v The State

### Preamble
1
HB 206/20
HCB 243/20
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MASOPO RONALDO

Versus

THE STATE

IN THE HIGH COURT OF ZIMBABWE

MAKONESE J

BULAWAYO 9 & 1 OCTOBER 2020

Bail Pending Trial

Applicant in person

Gundani for the respondents

MAKONESE J:	This is an application for bail pending trial.  The application is opposed.  The applicant is facing a charge of murder in contravention of section 47 (1) of the Criminal Law (Codification and Reform) Act (Chapter 9:23)

Factual background

It is alleged by the state that on the 15th February 2020 at around 20:00 hours, the deceased, one Thulani Ndlovu was at his residence at Lovendale, Bulawayo.  The applicant had an altercation with one of the deceased’s brothers.  The deceased intervened in an effort to restrain the two from fighting.  The deceased then left the scene and went back to his house.  After a short while the applicant followed the deceased.  He was now armed with an axe.  Applicant caught up with the deceased and struck him with the axe once on the chin and neck and once on the ankle.  The applicant then fled the scene with the axe.  The deceased was later ferried from the scene by a well-wisher.  The deceased was declared dead upon arrival at the hospital.  The deceased succumbed to injuries suffered during the attack.  The body of the deceased was taken to United Bulawayo Hospitals for a post mortem examination.  The body was examined on the 17th February 2020 and the cause of death was listed as:

Asphyxia

Bronchoaspiration

Face contusion

The state opposes bail on the grounds that due to the gravity of the offence, the applicant is likely to abscond in a bid to avoid standing trial.  The applicant admits committing the offence but denies that he had an intention to bring about the death of the deceased.  The applicant avers that he will not abscond and that in terms of section 50 (1) (d) the Constitution of Zimbabwe (Amend No. 20), 2013, any person who is arrested must be released unconditionally or on reasonable condition pending a charge or trial, unless there are compelling reasons justifying their continued detention.

The granting or refusal of bail pending trial is always a matter for the discretion of the court.  The Constitution guarantees the right to bail unless there are compelling reasons justifying the refusal to grant bail.  The state has argued that applicant is facing serious charges.  The evidence against him is overwhelming as he was identified by witnesses.  The applicant does not deny that he struck the deceased with an axe in the manner described.  In the event of a conviction the applicant faces a lengthy prison sentence.  The possibility of a long prison provides sufficient inducement for the applicant to abscond.

The principles that should guide the court in determining an application for bail have been set out in a long line of cases.  In   State v Jongwe 2002 (2) ZLR 209 (S), the Supreme Court (per CHIDYAUSIKU CJ) (as he then was), held as follows:

“In judging the risk the court ascribes to the accused the ordinary motives and fears that sway human nature.  Accordingly, it is guided by the character of the charges and the penalties which in all probability would be imposed if convicted; the strength of the state case; the ability to flee to a foreign country and the absence of extradition facilities, the past response to being released on bail; and the assurance given that it is intended to stand trial.”

In the present case, as I have indicated, the offence which the applicant faces is serious.  The applicant does not deny that he struck the deceased with an axe in random fashion.  He seriously injured his victim leading to his death.

I am satisfied that the applicant is not a suitable candidate for bail.  Soon after the commission of the offence, the applicant fled the scene with the murder weapon.  Applicant did not voluntarily surrender himself to the police.  In S v Biti 2002 (1) ZLR 115 (H), NDOU J noted that the primary consideration is whether the applicant will stand trial or abscond, but equally important is whether an accused will influence the fairness of the trial by intimidating witnesses or interfering with evidence.

In the circumstances, I am satisfied that applicant faces very serious charges.  He has no reasonable or probable defence to the charge.  He pursued an unarmed deceased who was leaving the scene and needlessly struck him with an axe, leading to his tragic death.  Once there is risk of imprisonment for a lengthy period, the desire and temptation to abscond becomes high.

I would, accordingly dismiss the application for bail pending trial.

National Prosecuting Authority, state’s legal practitioners