Oliver Magombedza v The State

### Preamble
1
HH 284-21
B 918/21
CRB CHG 304/21
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OLIVER MAGOMBEDZA

versus

THE STATE

HIGH COURT OF ZIMBABWE

MUNANGATI-MANONGWA J

HARARE, 19 May, 2021

Bail Appeal

C. Chakawa, for the applicant

P. Kangai, for the respondent

MUNANGATI-MANONGWA J: In presiding over matters, judicial officers are duly obliged to be impartial and ensure in all instances that justice is done. A magistrate presiding over a matter has to ensure fairness in conducting proceedings. Both procedural and substantive aspects pertaining to adjudication of matters have to be considered and adhered to. It cannot be said this obtained in this particular instance.

The appellant herein approached the High Court on appeal in terms of s 121(1)(b) as read with s 121(2)(b) of the Criminal Procedure and Evidence Act [Chapter 9:07]. The appellant is facing 2(two) counts of Stock Theft as defined by s 114(2)(a). His application for bail was denied by the court a quo, hence the approach to the High Court.

This court takes issue with the manner in which the proceedings were conducted. Unfortunately the appellant who is represented did not in his application challenge the proceedings themselves but rather raised the following grounds:

The court grossly misdirected itself by concluding that the appellant is a flight risk in the absence of evidence.

The court erred in failing to balance the interests of justice and the interests of the appellant.

The court erred in failing to consider the presumption of innocence.

In arriving at its decision the court a quo did not provide reasons. The following is an extract of the record of proceedings from the court a quo

Court: “Today will not ask whether you admit or deny the allegations

To what date

PP:        28April 2021

Court:   Your attitude to bail.

PP:         The offence which accused is facing is serious and carry a mandatory sentence, this would be    an incentive for the accused to abscond trial.

Court:    Bail refused.”

A scrutiny of the above shows serious inadequacies and breach of the audi alteram partem rule. Firstly, the accused was not given an opportunity to make his bail application. Rather the State’s attitude to bail was sought. Even so upon the State’s indication that bail was opposed, it was incumbent upon the court to advise the applicant to make his submissions pertaining to bail. Clearly the accused was not given the opportunity to respond to the sentiments aired by the State which is a procedural irregularity. Every accused person arraigned before a court facing allegations of whatever nature has a right to be heard. The Constitution of Zimbabwe Amendment (No. 20) in Act 2013 provides in s 70(1)(h) the right of an accused person “to adduce and challenge evidence” when arraigned before a court of law.

In casu, the State had indicated that the seriousness of the offence which carries a mandatory sentence was an inducement to abscond. The applicant was not given an opportunity to challenge this assertion and to present his personal circumstances as of right. This was a breach of the applicant’s right to adduce and challenge evidence. Such a misdirection vitiates the proceedings. In Ncube v S 2001(2) ZLR 556 (S) the Supreme Court categorically stated that the failure by the court to allow an accused to call witnesses to show that the allegations against him are unfounded is a serious misdirection which would allow a superior court to interfere with a decision of a lower court to refuse bail. In an event, it is trite that the seriousness of an offence is not on its own a bar to the granting of bail. See AG v Hussey 1999 (2) ZLR 187.

Section 50(1)(d) of the constitution provides for the release of an arrested person unconditionally or on reasonable conditions pending a charge or trial unless there are compelling reasons justifying their continued detention. The onus is on the state to establish the compelling reasons. In casu the reason that the applicant is facing a serious offence which carries a mandatory sentence does not on its own constitute compelling reasons.

What compounds and adds to the irregularities in this case is the failure by the magistrate to give reasons for denying the applicant bail. Apart from the magistrate court being a court of record, failure by a magistrate or a judicial officer to give reasons for his or her decision is a gross irregularity. See Makawa & Anor 1991(1) ZLR 142 (S). Each decision has to have a basis. It must be based on a legal principle applicable to the facts at hand hence absence of the basis upon which a decision is arrived at constitutes a misdirection. See Mwonzora & Ors HH72/11

This court being an appellate court can only consider whether a judgment or decision by the lower court is sound or whether the court a quo properly exercised its discretion where reasons are furnished. This is because this court cannot substitute its own discretion in the absence of a misdirection or irregularity. It is apparent that the magistrate did not perform her duties diligently and conscientiously. She completely disregarded the tenets applicable in dealing with bail applications and the arraignment of accused persons. This can only have fatal consequences to the decision arrived at by the lower court.

Equally, the state did not provide cogent reasons supported by adequate information to support its assertion that the applicant was likely to abscond. This would have come out from evidence pertaining to the circumstances of the applicant’s arrest and even his conduct after arrest. Did he resist arrest or try to avoid arrest, was there an attempt to escape from lawful custody which would point towards a likelihood to abscond. It was insufficient for the State to simply make a bald assertion that the applicant would abscond.

As enunciated above, the proceedings in the court a quo are marred by serious irregularities which resulted in a serious misdirection. That being so, the decision by the court a quo cannot stand.

The court further notes that no attempt was even made to link the accused to the offences in question nor was there any reference to the strength of the state’s case. These are some of the considerations which the counsel for the state must take in addressing court when bail is being considered.

It is noted that the State in its response to this appeal conceded that there was a misdirection and that the proceedings are marred by procedural irregularities. Thus the decision cannot stand. Given the facts as presented by the state there are no compelling reasons to deny bail to the applicant. He is a family man, he has no pending cases, no previous convictions were alleged to exist against him and nothing points to the fact that he will not attend trial. Adequate bail conditions can be imposed to ensure that the interests of justice are not compromised. In the result the following order is made

The appeal succeeds.

The order of 14 April 2021 by the Magistrate in the court a quo be and is hereby set aside.

The order of the court a quo is substituted with the following:

Bail be and is hereby granted on the following terms

The applicant shall deposit the sum of RTGS$10 000 with the clerk of Court Chegutu.

The applicant shall reside at No. 6960, Mashlands, Norton.

The applicant to report to Norton Police Station once every Tuesdays and Fridays between the hours 8:00am and 6:00pm.

The applicant shall not interfere with witnesses.

Tamuka Moyo Attorneys, for the applicant

National Prosecuting Authority, for the respondent