Qhubekeani Tshuma v The State

### Preamble
1
HB 24/21
HCB 49/21
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QHUBEKANI TSHUMA

Versus

THE STATE

IN THE HIGH COURT OF ZIMBABWE

MAKONESE J

BULAWAYO 3 MARCH 2021AND 11 MARCH 2021

Bail Application

MAKONESE J:	The applicant is facing two counts of attempted murder as defined in section 189 as read with section 47 of the Criminal Law (Codification and Reform) Act (Chapter) 9:23.  The applicant avers that he is a suitable candidate for bail pending his trial.

The state alleges that on the 6th of November 2020 and at Magedini Business Centre, Lusulu Binga he assaulted the 1st complainant above the left eye with a machete causing a deep cut.  Applicant went further to assault 2nd complainant Mashoko Ncube with the same machete on the head causing him a deep cut.  Applicant is detained at Binga prison pending trial.

In his bail statement, the applicant who is unrepresented lists four grounds in which he contends he is a suitable candidate for bail.

(a)	he is a citizen of Zimbabwe.

(b)	he has no valid travel documents.

(c)	he wants to look after his family.

(d)	he shall reside at his rural homestead pending trial.

In opposing bail, the police indicate in the Form 242, (Request For Remand Form) that applicant was positively identified by both complainants in the matter.  Further there is corroboration from independent witnesses who observed the applicant assaulting the complainants with a machete.  The applicant has not proferred any valid defence to the allegations.  There is overwhelming evidence against the applicant.  The strength of the state case is likely going to lead to a conviction.  In the event of conviction the applicant is facing a lengthy custodial sentence.  The applicant may be tempted to abscond in order  to avoid trial.  The applicant has a propensity to commit similar offences.  He has a pending case involving assault at ZRP Lusulu (CR 120/5/17).

Section 117 (2) of the Criminal Procedure and Evidence Act (Chapter) 9:07 provides that:

“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-

(a)	where there is likelihood that the accused, if he or she were released on bail will

(i)	endanger the safety of the public or any particular person or will commit an offence referred to in the First Schedule; or

(ii)	not stand his or her trial or appear to receive sentence; or

(iii)	attempt to influence or intimidate witnesses or to conceal or destroy evidence; or

(iv)	undermine or jeoperdise the objectives or proper functioning of the criminal justice system, including the bail system; ….”

In State v Biti 2002 (1) ZLR 115 (H), NDOU J laid down the position as follows at page 117:

“It is trite that in bail applications the primary question for consideration is whether the applicant will stand trial or abscond.  Of equal importance, however is whether the applicant will influence the fairness of the trial by intimidating witnesses or interfering with evidence.”

In the instant case I am satisfied that the applicant is not a suitable candidate for bail for the following reasons:

(a)	he has a propensity to commit similar offences and has a pending case of assault at Lusulu.

(b)	the state has a strong case against the applicant as both applicants positively identified him as the attacker.

(c)	the applicant faces serious charges and in the event of a conviction he is likely to be sentenced to a lengthy custodial sentence.

(d)	the applicant is  likely abscond to avoid trial.

(e)	it is not in the interests of justice to grant bail in the circumstances.

(f)	the applicant has not proferred any valid defence to the charges.

In the result, and accordingly the application is hereby dismissed.

National Prosecuting Authority, respondent’s legal practitioners