Tafadzwa Gwatidzo and Justice Rwanda v The State

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HCC05/22
B86/22
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TAFADZWA GWATIDZO

And

JUSTICE RUWANDA

Versus

THE STATE

HIGH COURT OF ZIMBABWE

MUZOFA J

CHINHOYI. 28th day of April, 2022

Bail pending trial

H. Saizi for the Applicants

T.H. Maromo for the Respondent.

MUZOFA J: The applicants appeared before a Magistrate contravening s82 of the Parks and Wildlife General Regulations Statutory instrument 362/90 as read with s128 (B) of the Parks and Wildlife Act, possession of raw ivory.

In their application, the applicants indicated that they have fixed places of abode. They are not likely to abscond since they did not commit the offence. They also averred that there is no likelihood that they will interfere with witnesses. The State witnesses are members of the International Anti-Poaching Foundation and police officer. There is no way they can influence them.

The State case is that members of the Police Makuti, received information that the applicants were in possession of ivory and were looking for a buyer. The police together with members of the International Anti-Poaching Foundation proceeded to the Lynx Mine where the applicants were. They posed as potential buyers. When the sale transactions was about to be concluded, the applicants were apprehended. The ivory weighed 13.52 kilogrammes with a street value of US2298.40.

The State opposed the application. An affidavit by the investigating officer was filed. The State’s opposition is premised mainly on the fact that the applicants are likely to abscond. They face a serious offence which upon conviction they are likely to be imprisoned for a long period. There is overwhelming evidence against them. It was also submitted that they are a flight risk as they stay near a porous boarder.

The starting point on bail pending trial is that bail is a right. The right can only be limited where there are compelling reasons to justify continued detention. Compelling reasons that may inform the Court to decline bail are set out in s117 (2) of the Act. In this case, the applicants are facing a charge listed under Part 1 of the Third Schedule to the Act. They therefore bear the onus to show on a balance of probabilities that it is in the interest of justice that they be released on bail.

Although the applicants listed the reasons why they should be granted bail. I must consider whether the provisions of s117 (3) (b) of the Act. Section 117 (2) provides

(2). the refusal to grant bail and detention of an accused in custody shall be in the interests of the justice where one or more of the following grounds are established.

(b) Subsection (2) (a) (ii) has been established.

The applicants aver that they have fixed places of abode therefore they will not abscond. The first applicant said he resides at Farm No. 289 Vuti Hurungwe. No further particulars are given whether he owns the farms. Nothing is said about his assets which can be assessed to give him an impetus to attend court. Similarly the second applicant simply refers to the address 6876 Riverside, Chinhoyi and no further information. In an application such as this the applicant must give details of any assets held by the applicant. In this case nothing is alluded to that shows that the applicants have anything or assets.

What probably tips the scale against the applicants is the nature and gravity of the offence and the likely penalty, considered in view of the strength of the State case.

The offence the applicants face attracts a minimum sentence of 9 years upon conviction. They face a serious offence. It is trite that the seriousness of an offence cannot per se be a basis to deny bail. The seriousness of an offence must obviously be considered in view of other factors. In this case the State case is quite strong. The applicants were arrested by the police in the act of selling, this they were literally apprehended in flagrante delicto. Their explanation that the ivory to the charge defies logic. There is no explanation why the police and members of the International Poaching would target falsely them.

The strength of the State is a sufficient basis for the applicants to abscond in view of the likely long imprisonment view in the event of the conviction.

On that basis the application is dismissed.

Messrs Saizi Law Chambers for the Applicant’s Legal Practitioners

National Prosecuting Authority for the Respondent’s Legal Practitioners