Emelda Marazani v The State

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                                                                                     B 1973/20


EMELDA MARAZANI
versus
THE STATE


HIGH COURT OF ZIMBABWE
CHITAPI J
HARARE, 13 April 2021 & 21 April 2021


Bail Pending Trial



Mr Chabuka, for the applicant
Ms Masokovere, for the respondent

       CHITAPI J: The applicant applies for bail pending trial. She is a female adult aged
29 years old. She first appeared before the magistrate at Chivhu court on initial remand on 13
November 2020 charged with four counts of murder. The case of the applicant caught the
public eye and was also widely covered by the Press. Its circumstances are tragic. The
applicant is married and had four minor children born of the marriage prior to the
commission of the offence.

       The facts on which the applicant was arrested and placed on remand were that the
applicant had an alteration with her husband on 7 November 2020 at their house 4171
Hillview, Chivhu. She suspected and accused her husband of infidelity. The applicants’ hurt
feelings did not appear to have subsided. On 11 November 2020when the applicant’s husband
had gone to the tuck shop, the applicant invited her two daughters aged 9 and 5 years old
respectively into her bedroom. The applicant tied their daughters’ hands and legs before she
slit their throats with a knife, killing them on the spot. The applicant then took the remaining
two daughters aged 3 years and I year respectively into the spare bedroom. She also slit their
throats and killed them. Thereafter the applicant took the children’s clothes and heaped them
in the main bedroom before she set the bedroom on fire. There were two gas containers in the
house which caught fire which caused extensive damage to the house. The applicant after her
misdeed drank rat poison to kill herself before she proceeded to the police station and
reported what she had done. Police arrested her. The applicant in this bail application averred
that she had been married to her husband of nine years. She gave birth to daughters only and
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no son. Her failure to bear a son for the husband became a source of friction with the
husband. The matrimonial problems were so intense that the husband who complained that if
he died without siring a son his name would be lost forever, even ordered the applicant out of
the matrimonial home so that he would remain in the house with a newly found lover. The
husband brought in a new wife with whom he shared the main bedroom. The applicant
averred that the husband would lock her inside the house without food and would describe
the applicant as a useless being.

       The applicant averred that she was the only child of her mother whom she did not
grow up with. Her father separated with her mother when the applicant was in primary
school. She grew up a difficult life in the rural areas of Gutu and was an O-Level educated
woman. She married early in life at age 19 to the husband who was 34 years old and had been
married before. The husband allegedly kept the applicant under bondage without access to
her relatives and she was denied adequate food and the right to proceed with her education.
The husband went on a siring spree hoping to sire a son. The quick pregnancies which the
applicant experienced were intended to produce a son. She is currently 6 months pregnant
having conceived the pregnancy before the last child was 1 year old, all in aid of trying to
conceive a son. The applicant averred that she was made to consult sangomas and would
perform rituals at night whilst naked to aid the conceiving of a boy. She averred that she was
a Christian of the Seventh Day Adventist Church denomination and did not subscribe to the
rituals. However, she suffered quietly in performing the rituals because she was scared of
being thrown out of the matrimonial were she to divulge the rituals.

       The applicant averred that upon her giving birth to the youngest daughter, the husband
started to engage in several adulterous affairs resulting in him infecting the applicant with
sexually transmitted diseases. The husband demanded unprotected sex whilst the applicant
was still sucking the youngest child resulting in her getting pregnant. The husband refused
her permission to use contraceptives. To compound her woes, the applicant averred that the
husband did not provide for her and the children with food.
       In relation to the commission of the offences, the applicant averred that her actions
were not voluntary but that everything happened so fast that she failed to contain her
pressure. The husband had sent her pictures of him in the company of other women and a
message written “a boy child will come from anyone of these.” Applicant averred that she did
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not have anyone to share her grief with and just acted involuntarily. Although the bail
proceedings are not trial proceedings, from the long narration of the applicant of the
circumstances of the murders, there was clearly an underlying cause and state of mind that
the applicant acted under as opposed to acting deliberately. Whether the applicant’s conduct
was involuntary as envisaged in s 216 or a state of dismissed responsibility as envisaged in s
215 of the Criminal Law (Codification & Reform) Act [Chapter 9:23] is an issue that the trial
court will grapple with. What cannot be denied in all the circumstances of the commission of
the offences is that the applicant did not act out of inherent wickedness.
       The police in the request for remand form opposed bail on three grounds. Firstly, it
was averred that the applicant was likely to abscond because he was facing a serious offence.
This ground standing alone is not sufficient for the court to deny bail to an accused unless it
is backed by other factors which make abscondment a real likelihood. What immediately
comes to mind is that the she applicant soon after committing the actus reus proceeded to the
police station to report and confessed to what she had done. Such conduct is inconsistent with
the behaviour of an accused who is intent on abscondment.
       The police also averred that there was a likelihood that the applicant would interfere
with witnesses since the witnessed were her neighbours. The impact of this ground wanes
into insignificance if one considers that the applicant confessed her actions to the police. In
cases where the accused has confessed his or her conduct, the accused gains littles by seeking
to interfere with witnessed given that facts of the case will not be in dispute.
       The police also indicated that the applicant ingested rat poison immediately after
committing the offences and this has shown suicidal tendencies. The argument was therefore
that the applicant was likely to commit suicide if granted bail. I leave open the debate of
whether or not the likelihood of self-harm by an accused is a valid ground to deny the
accused who after all is presumed innocent until proved guilty. It is true that the accused if he
or she commits suicide will not stand trial just like the accused who has absconded. A quick
rundown of the provisions of s 117(2) as read with s 117(3) shows that bail may be refused in
the interests of justice as envisaged in s 117(2)(b)
        “where in exceptional circumstances there is the likelihood that the release of the accused
        will disturb the public order or undermine public peace or security.”
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       Section 117(3)(e) then lists out the factors which the court shall consider in
determined the presence of exceptional circumstances as aforesaid. Sub para (iii) of para (e)
of subs (3) of s provides a factor to be considered as
       “whether the safety of the accused might be jeopardized by his or her release.”
       There would therefore appear to be no specific provision in the criminal procedure
and Evidence Act which provides that bail may be refused on the basis that the accused be
protected from committing suicide.
       That said, the risk of committing suicide appears remote in the light of medical
evidence which was produced during the hearing of this application. On 26 November, 2020
the applicant was examined by two doctors at Chivhu Hospital in terms of the Mental Health
Act, [Chapter 15:06] by Doctors Johanne Shayanowako and Alice Kanyemba. Doctor
Shayanewako commented as follows of the applicant:
       “No longer dangerous to self and others
       She is mentally stable
       No psychotic symptoms noted
       Not mentally disordered.”

       Doctor Kanyemba commented as follows
       “No evidence of mental disorder
       No facts of mental disorder found at previous examination”

       Therefore the open debate on whether bail may be refused on the grounds of self
protection of the accused will rest for now because the mental examination of the applicant
was conclusive that the applicant is no longer a danger to herself.
       The applicant had the burden on a balance of probabilities to show in terms of the
provisions of s 115C (2)(a)(ii)(B) that exceptional circumstances exist which in the interests
of justice permit her release on bail. What amounts to exceptional circumstances is not
defined in the Criminal Procedure and Evidence Act. An exceptional circumstance is to my
mind a compelling factor or circumstance connected with the commission of the offence or
personal to the applicant. I do not think that it is prudent to engage in an exercise of defining
what constitutes exceptional circumstances. They have to be case determinant because were
such approach be followed, a closed definition would tie down the court and in the process
interfere with the court’s discretion to grant or refuse bail on a case by case basis. I am
persuaded to follow the dicta by HENRIQUES J in the unreported case of Ntoni and Ors v S
(2018) ZAKZ PHC 26 where at para 32 the learned judge stated:
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       “Generally speaking what may constitute exceptional circumstances in any given case
       depends on the discretion of the presiding officer and the facts peculiar to a particular matter.
       In the context of the provision of s 60(ii)(a), the exceptionality of the circumstances of the
       case must be such as to persuade the court that it would be in the interests of justice to order
       the release of the accused. It requires the court to exercise a value judgment in accordance
       with all the relevant facts and circumstances”

       In my view, the background circumstances of the offence and the applicant’s
explanation for her conduct together with other evidence which was adduced before me
constitutes exceptional circumstances which in the interests of justice permit the release of
the applicant on bail. The medical reports prepared upon an examination of her mental state
show that she is neither a danger to society nor to herself. Evidence was received from the
applicant’s mother who indicated that she will personally provide a shoulder for the applicant
and provide her with emotional support. The applicant’s uncle who is brother to the
applicant’s mother offered to stay with the applicant and applicant’s mother. He offered to
arrange for the applicant to be attended to by a psychologist and indicated further that he had
arranged for church elders to attend at Chikurubi Female Prison where the applicant is
incarcerated. Unfortunately because of COVID19, prison administration is presently not
allowing prison visits by outsiders. The applicant will not therefore be alone or desperate.
There is every indication that the applicant is unlikely to abscond or jeopardise the proper
functioning of the bail system including the criminal justice system.
       I should comment on the magnamity shown by respondents’ counsel Mrs
Masokovere. She quite rightly opposed the grant of bail on the basis that the State case was
very strong and the applicant was likely to abscond. She argued that the offence was
premeditated which of course became an arguable submission given the applicant’s
explanation for her conduct. Mrs Masokovere after considering the results of the mental
examination of the applicant capitulated her position to oppose bail. I commend her for that
because she easily appreciated that the results of the mental examination were to portray the
applicant as compos mentis like any other citizen albeit the applicant faced murder charges.
Mrs Masokevere shifted her position and submitted that the State’s worry had become that
the applicant required psychological attention and treatment. With the applicants uncle and
mother having committed to assist the applicant to get psychological help. Mrs Masokovere
in a show of a proper professional appreciation of the principles of bail rightly abandoned the
respondents’ opposition.
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            Before I conclude, I consider it appropriate to express the courts appreciation for the
efforts and spirit of co-operation shown by both Mr Chabuka and Mrs Masokovere. I
experienced a rare situation wherein Mr Chabuka went the extra mile to ensure the
examination of the applicant by two doctors and arranging for the applicant’s relative to
attend the hearing and testify on their willingness to provide sanctuary and other support for
the applicants. Mrs Masokovere for her part took the attitude to assess and reflect on the
states’ position in the light of new facts presented by Mr Chabuka and taking a reasonable
view of the facts.
            All having been said, the determination I make is as follows:
            The applicant is admitted to bail pending trial on the conditions set out in the draft
            order to the effect that
       i.       She deposits $5 000.00 with Clerk of Chivhu Magistrate Court.
      ii.       She resides with her uncle Tawanda Mupinu at house NO. 12936 Budiriro 5B
                Harare.
     iii.       She reports at Budiriro Police Station every Mondays between 6:00am and
                6:00pm.
     iv.        She shall not interfere with state witnesses.




Magaya Mandizvidza, applicant’s legal practitioners
National Prosecuting Authority, respondent’s legal practitioners