Ronsen Bafana and Honest Mahachi v The State

### Preamble
1
HH 444-2012
B 598-2012
RONSEN BAFANA
and
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RONSEN BAFANA
and
HONEST MAHACHI
versus
THE STATE

HIGH COURT OF ZIMBABWE
MWAYERA J
HARARE, 29 OCTOBER 2012

F. Murisi, for the applicant
C. Manhiri, for the state

BAIL RULING

MWAYERA J: The application before the courts for Bail pending Trial. The brief history of the matter of necessity has to be highlighted. The applicants were indicated for trial before this court and their trial was set to commence on 30 July 2012 under case HC 115/2012. On 30 July 2012 the trial did not kick off as the applicants and the state had sought to discuss a statement of agreed facts on a possible plea of culpable homicide. On 01 August 2012 the state withdraw charges in respect of the applicant’s co accused. Relying on a statement of agreed facts and charge of culpable homicide. The applicants were arraigned before the trial court. They pleaded guilty to culpable homicide which pleas were altered to not guilty as the applicants disowned the statement of agreed facts and the matter could not proceed to trial because the state witnesses had been excused with the view that the matter was going to be settled on the pleas of guilty to culpable homicide. The applicant’s matter upon alteration of plea was postponed sine die.

It is against this background that the applicants approached the bail court seeking to be admitted to bail pending trial.

The state in its response argued that the matter was not properly before the court since the applicants were indicated for trial and their bail terminated when they tendered their pleas in terms of section 169 of the LP & E Act [Cap 9:07] Criminal Procedure and evidence Act. His argument was that the applicants had to make their application before the trial court. Section 169 reads:—

“If the accused is indicated to High Court after having been admitted to bail, his plea to the indictment shall unless the court otherwise directs have the effect of terminating his bail, and he shall thereupon be detained in custody until the conclusion of the trial in the same manner in every respect as if he had not been admitted to bail.”

Whereas it is correct that bail in accordance with the law terminated at the stage that the applicants entered their pleas it is apparent from the wording of section 169 that the court is not precluded from admitting the applicants to bail upon an application being made and assessment of suitability or otherwise of applicants’ admission to bail. The state’s argument that the application ought to be made before trial court is not supported by any legal instruments or case law. The relevant section simply alludes to the court directing otherwise. Of interest in this matter is the fact that the trial court was at the relevant time sitting as the bail court. The state sought to present argument that it would not be proper for the Judge sitting as a bail court to entertain the application.

The reason behind making the application before the trial court is simply for expedience in the sense that the trial court will be privy to the circumstances of the case but that does not mean this court cannot entertain the bail application. The practicalities of the matter demand that the bail application be entertained so as to enable the court to make a decision whether or not the applicants are suitable candidates for bail. To seek to distinguish the trial court from the Bail court when it is in fact the same Judge would be unnecessary spiliting of Hairs. Accordingly the application is deemed properly before the court.

The court has had due regard to the applicants’ bail statements and argument by counsel that they are suitable candidates for bail.

In the application for Bail Pending Trial the court has to consider the right to individual liberty on the one hand and the interest of administration of justice on the other hand. In seeking to strike a balance between the two of necessity the court has to consider the societal interest which encompass the availing of an individual for purposes of prosecution of the matter and the right of the individual to his liberty bearing in mind the criminal hallmark of the presumption of innocence till proven guilty.

The applicants in their bail statement suggest that they wish to abide by the statement of agreed facts and that they wish to plead guilty to culpable homicide. It is the same scenario which prevailed in the trial court and they disowned the statement of agreed facts after the state had excused witness. The conduct exhibited in the face of serious allegations which in the event of conviction will call for stiff criminal sanction is indicative of desire not to avail self for trial. The court cannot repose faith or trust in such conduct which would jeopardise the interest of administration of justice. The disowned statement of agreed facts as being admitted for bail purposes depicting likelihood of not availing themselves for the matter to be finalised. The State is right in opposing the application because what the applicants are requesting the state to do can be likened to pouring water in a broken calabash and that will not assist in the administration of justice.

Accordingly the applicants are not deemed suitable candidates for bail given that the conduct envisaged does not potray them worth trusting that they will avail themselves for the trial. Application is dismissed.

*Murisi and Associates, Applicant’s legal practitioners*
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