The State v D.T. MwonZora and Twenty Four Others

HH 72-2011
                                                                                      B 138-161/11
                                                                                          B 172/11

THE STATE
versus
D.T. MWONZORA AND TWENTY FOUR OTHERS


HIGH COURT OF ZIMBABWE
MAVANGIRA J
HARARE 9, 10 and 11 MARCH 2011

Appeal by Attorney-General against the granting of bail by the magistrate

E. Nyazamba for the appellant
T. Maanda, with T. Zhuwarara and J .Bamu for the respondents

       MAVANGIRA J: The respondents were placed on remand on charges of public violence
as defined in s 36 of the Criminal Law (Codification and Reform) Act. [Cap 9:23]. The magistrate
at Nyanga, before whom they appeared, admitted them all to bail under specified conditions.
Counsel for the State then immediately advised the court a quo that the State intended to appeal
against the decision in terms of s121 of the Criminal Procedure and Evidence Act. This is the
appeal against the decision of the magistrate.
       I shall deal first with a point in limine which was raised by the respondents’ counsel during
his address in response to State counsel’s submission. It was contended that this appeal is not
properly before this court because the High Court (Bail) Rules 1991, envisage service of the
written statement referred to in Rule 7 (1) on the magistrate against whose decision the appeal is
made. It was submitted that there has been no such service and consequently the appeal is not
properly before the court. Furthermore, that whilst no rule specifically requires the appellant to
serve on the magistrate, this requirement can be inferred from subrule (3) of rule 7. The subrule
states that where practicable, a magistrate on whom a statement has been served shall file with the
Registrar his written comments on the appeal at least three hours before the hearing. It was also
submitted that subrule (3) must be read in conjunction with subrule (2).
       The appellant’s contention was that there is no such requirement in the rules for the
appellant to serve the written statement upon the magistrate. Furthermore, that in any event, even
if there was therein such a requirement, the appellant did comply with it albeit the appellant is at
this particular stage unable to furnish proof of such service on the magistrate; given the limited
time in which they have had to respond to the preliminary issue. It was submitted that if it was
2
HH 72-2011
B 138-161/11
B 172/11

given the opportunity, the appellant would be in a position to furnish proof of such service to the
court.
     Subrule (1) of rule 7 states as follows:
       “An appeal by the Attorney-General in terms of paragraph (b) of subsection (1) of section
       111A of the Criminal Procedure and Evidence Act [Cap 9:07] shall be noted, within seven
       days after the magistrate granted bail, by filing with the registrar a written statement
       setting out –
       (a) the name of the person who was granted bail; and
       (b) where the appeal is brought against the decision of a magistrate granting bail to a
           person –
               (i)     the offence with which the person is charged; and
               (ii)    the court by which and the date on which the person was granted bail;
       and … .”
         Subrule (2) states:
       “As soon as possible after the appeal referred to in subrule (1) has been filed –
       (a) the appellant’s legal practitioner, where the appellant is legally represented; or
       (b) the registrar where the appellant is not legally represented;
     shall cause a copy of the written statement referred to in subrule (1) to be served on the
     Attorney-General or his representative.”



         It is patently clear that subrule (2) cannot possibly have any place in appeals by the
Attorney-General. A reading of paragraphs (a) and (b) of the subrule makes it clear that this
subrule cannot be referring to the Attorney-General. The inapplicability of this rule is further
confirmed by the requirement for service on the Attorney-General or his representative. The
interpretation sought by the respondents would lead to absurdity as the Attorney-General cannot
be required to serve the written notice filed in terms of subrule (1), on himself.
         Subrule (3) which the respondents placed much emphasis on, provides as follows:
       “Where practicable, a magistrate on whom a statement has been served in terms of
       subrule (2) shall file with the registrar his written comments on the appeal at least three
       hours before the hearing of the appeal.” (Emphasis added)
Subrule (3) can thus not be read on its own. It is a sequitur to subrule (2). The written statement
which the magistrate is given an opportunity to comment on, is a statement which has been served
on him in terms of subrule (2); yet subrule (2) has no such requirement for the magistrate to be
served with the written statement.
         Whatever the intention of the draftsperson was in this regard, it is not the role of this court
to introduce its own words into the two subrules with a view to making them compliant with
3
HH 72-2011
B 138-161/11
B 172/11

procedures to be followed in appeals by the Attorney-General. The two subrules (2) and (3) do not
appear to have any place in the matter at hand. Until they have been amended to make clear what
the draftsman’s intention is or was, this court has no basis or justification for finding that the
Attorney-General is required to serve on the magistrate the written statement referred to in subrule
(1).
       It was for these reasons that I found against the respondents on the preliminary issue
raised. I found that the appeal is properly before this court.
       The appellant’s grounds of appeal in this matter are that the magistrate misdirected himself
by not considering that:-
       “(a)      the offence the respondents are facing is inherently serous.
       (b)       Respondents are likely to abscond in the face of the serious charges which will no
                 doubt attract a long term of imprisonment upon conviction.
       (c)       Respondents will interfere with witnesses and investigations.
       (d)       Release of respondent will endanger the safety of the community in which the
                 offence was committed.
       (e)       Release of respondents is likely to trigger severe loss of sense of peace and security
                 and will result in public disorder.”
       The appellant prays that the order of the court a quo be set aside and that the respondents
 remain in custody until the trial is finalised. The appellant contends that justification for the
granting of its prayer is to be found in the fact that there is no indication in the magistrate’s written
decision that he applied his mind carefully to the concerns and fears raised by the State. The said
concerns and fears are said to be well set out in the Request for Remand form 242 as well as in the
affidavit of the Investigating Officer attached thereto.
       The Request for Remand form 242 and the Investigating Officer’s affidavit list the
following as the reasons for opposing bail, which reasons were placed before the magistrate by the
public prosecutor at the bail hearing:
                that the appellants (accused) are facing a serious charge which attracts a custodial
                 sentence of up to 10 (ten) years hence they may abscond in order to avoid a
                 possible conviction and sentence.
                that the appellants are persons of influence in the Nyamaropa area Nyanga, hence
                 they are likely to interfere with witnesses/evidence.
4
HH 72-2011
B 138-161/11
B 172/11

              that they are likely to commit similar or other offences judging form the way they
               “courageously and wantonly committed this offence to further their political ends.
              that the police are still making frantic efforts to arrest seventy (70) outstanding
               accused persons and that the release of the respondents may influence or cause the
               disappearance of the seventy.
       The respondents in opposing this appeal contend that no misdirection on the part of the
magistrate has been shown or proven. They contend that that there is therefore no basis for this
court to exercise fresh discretion in this matter. They also contend that the magistrates written
decision refers not only the legal principles relied upon but also the facts to which the legal
principles were applied.
       Besides citing 2 case authorities, the magistrate’s decision reads as follows:-
       “The court has put into cognisance both parties’ submissions concerning the issue of
       bail. As the law requires in bail issue, the right to liberty is one of the most
       fundamental rights and should not be lightly interfered with. The court should lean
       in favour of protecting the right to liberty , unless state established the necessity to
       deprive one of their liberty pending trial.” (sic)
       In S v Ndlovu 2001 ( 2 ) ZLR 261 ( H) The court should strike a balance between the
       interests of society and the liberty of the accused. This accused should stand trial and that
       there is to be no interference with witnesses. Bail must therefore be granted provided the
       interests of justice will not be prejudiced.”

       In S v Kuruneri HH111/04 If the state’s fears of that the accused will abscond or interfere
       with witnesses and the applicants’ assurances to the contrary are equally balanced, the
       presumption of innocence would require the court to lean in favour of the liberty of the
       person and granted bail.
       Reasons for opposition led by the State are that: (1) seriousness of the offence (2)
       interference with witnesses and that the outstanding perpetrators. (sic). These are not
       enough to deny one bail basing on the issues of need for accused persons to be given the
       presumption of innocence before they are tried.

       Court’s Decision
       Bail is granted on the following conditions:-

       ………………………….”
       A perusal of the magistrate’s written decision shows that the first three paragraphs thereof
in effect deal with or refer to legal principles. What might be referred to as or what purports to be
reference to the merits of the matter appears only in the fourth paragraph.
5
HH 72-2011
B 138-161/11
B 172/11

        In Taruwona and Another v The State HH 6/2005 at page 3 of the cyclostyled judgment,
MAKARAU J. as she then was said:-
         “It is trite in my view that when a Judicial Officer decides on an application, he or she
        must at least refer to that legal principle upon which the decision is based in addition to the
        facts upon which the legal principle is applied. In the above ruling by the trial magistrate,
        no legal principle is referred to and the evidence that the claims to have looked at
        thoroughly is not referred to. It is the lack of these basic features in the ruling by the trial
        magistrate that in my view constitutes the misdirection on his part.”

        In casu, the magistrate referred to legal principle. He did not however refer to the
evidence, or as he put it, the submissions that he looked at or had regard to in arriving at his
decision. He made much generalised statements. As in the Taruwona case, (supra), this lack of a
basic feature in the magistrate’s written decision constitutes a misdirection on the part of the
magistrate. In the result, and having established misdirection on the part of the magistrate, this
court is now at liberty to exercise fresh discretion in this matter.
        Before the court a quo the respondents’ legal practitioners made submissions in answer to
the State’s laid out fears, which fears have already been listed earlier in this ruling. With regard to
the first stated fear or concern, it was submitted that the seriousness of an offence does not on its
own make a person ineligible for bail. He cited S v Hussey 1991 (2) ZLR 187 (SC) at 192 in
support of his submission. He further submitted that the seriousness of an offence taken together
with other considerations may however, lead a judicial officer properly to refuse the granting of
bail.
        Regarding the second fear or concern, it was submitted that this is a bald statement or
assertion which does not amount to cognisable indication of a likelihood to abscond. It was
submitted that there is no indication that any of the respondents would abscond if admitted to bail.
As to the third ground it was submitted that the State did not indicate how the respondents would
interfere with witnesses and the investigations. The basis for this fear, according to the public
prosecutor, was the allegation that the respondents had blocked and hindered the safe passage of
an ambulance which was ferrying an injured victim of their violence from Nyanga Hospital to a
referral centre. It was in response submitted that this fear could not reasonably attach to all the
respondents as they were not all arrested at the same place and at the same time. The State had not
indicated which of the respondents were arrested at the hospital and are thus alleged to have
blocked the ambulance’s way. It was submitted that they cannot all be denied bail on the basis that
6
HH 72-2011
B 138-161/11
B 172/11

they blocked the ambulance’s way. It was stated to the magistrate that eleven of the respondents
were abducted by certain persons and dropped off at Nyamaropa Police Station. The first
respondent was apparently arrested whilst he was at Parliament. It was submitted that these twelve
were not arrested at the scene of the crime, and furthermore, that the witnesses were not known to
the appellants.
       As to the fourth concern it was submitted that the State has not proffered any evidence that
these respondents or any of them have a propensity or inclination to commit offences. The same
submission was repeated in response to the fifth concern of the State. The State also made the
further submission that the respondents must stay in custody for their own safety as they would
thus be protected from criminal activities which might be carried out against them by members of
the community. The response thereto was that that fear by the State must not hinder the
respondents’ right to liberty. S v Bhebhe & Ors 2002 (1) ZLR 137 was cited by the respondents’
counsel(s?) in support of this submission in response. The headnote thereof records that it was
held that fears for the safety of the accused because of the unlawful actions of the mob outside the
courtroom, threatening to kill the accused, were not a ground to refuse to grant bail
       The first respondent’s legal practitioner laid before the court detailed submissions
regarding his circumstances and the reason why the interests of justice will not be prejudiced or
jeopardised by his admission to bail. Similarly the legal practitioner for the second to the twenty
third respondents also made submissions on the lack of cogency of the State’s reasons for
opposing bail. Submissions made in this regard include the following: that all the respondents
have no links outside the country; they have no travel documents; they are not persons with
influence; they do not reside in the same village; they are not known to have committed similar
offences; they are farmers and have been detained during the rainy season; they are of fixed abode
and are permanent residents with dependants. It was submitted in addition, and with particular
reference to the fourteenth and fifteenth respondents, that they are husband and wife and noone
was looking after their children. With particular reference to the thirteenth respondent, it was also
submitted that he was 82 years old and is partially blind and thus would not abscond. The tenth
and the twenty third respondents were also said to be employed. The further submission was made
that the seventy who are allegedly still to be arrested, do not need to be told to flee by the
respondents, upon the respondents’ release. It was finally submitted that the court could impose
appropriate conditions to the respondents’ bail in order to ensure their attendance at their trials.
7
HH 72-2011
B 138-161/11
B 172/11

       The submissions pertaining to the second to the twenty third respondents were adopted in
respect of the twenty fourth respondents.
       In response to all these submissions the public prosecutor addressed the court in the
following terms:
       “The defence has dismally failed. The State stands by it grounds, especially second to
       twenty third. Accuseds’ submissions must be a joke or circus. We stand by our
       submissions.”

       It appears to me that this is the same situation which was faced by the court in S v Lotriet
2001 (2) ZLR 225 (H) where at 228D the following was stated:-
       “At the resumed hearing his (the Attorney-General’s representative’s) answer to the
       allegations was that Mr. Ndlovu ‘has not been charged with fraud – but with
       [contravening] the Prevention of Corruption Act. Hence each matter is dealt with
       according to its own facts and merits’. That bald and general response by the Attorney
       General provides no answer to detailed allegations made by the applicants. …. .
       In the result, therefore, while even if it is not possible to make positive findings on the
       allegations made by the applicants, those allegations remain unanswered or, at best,
       inadequately answered by the Attorney-General. In an application for bail pending trial,
       the initial onus is on the State to prove the necessity of keeping the applicants in custody. It
       is not necessary for the applicants to prove that they are to be released on bail. The
       response of the Attorney-General does not discharge that onus.”

       In Kuruneri v S HH111/04 at p 4 of the cyclostyled judgment, Hlatshwayo J stated the
following:
       “In my humble view therefore, the notion of the accused having an onus to discharge to
       enable him or her to be admitted to bail is not part of our law as legislated. Having cleared
       this legal debris, then the place of the constitutional presumption of innocence in bail
       application becomes clearer. The presumption operates fully and at the general level. It is
       because of the presumption of innocence that the courts are expected, and indeed required,
       to lean in favour of the liberty of the accused. In its request for remand (Form 242) the
       State puts across its reasons for opposing the granting of bail. In his or her application for
       bail, the applicant addresses the concerns of the State and makes any other averments
       which tend to favour his admission to bail. The State then responds. Finally, the judge or
       magistrate assesses all this information with a view to ‘strike a balance between the
       interests of the prosecutor in obtaining justice for the State, as one party in the accusatorial
       process, interests of the accused in obtaining justice for himself’ (Legal Forum, op cit.,
       p26). If the finding is that, to use the words of GUBBAY CJ in Aitken’s case, ‘the case
       against the applicant s neither obviously strong nor obviously weak’, that the State’s fears
       of abscondment or interference with witnesses and the applicant’s assurances to the
       contrary are equally balanced, then the presumption of innocence would require the court
       to lean in favour of the liberty of the accused person and grant bail.”
8
HH 72-2011
B 138-161/11
B 172/11

       In S v Benatar 1985 (2) ZLR 205 (HC) at 210D the following was stated:
       “It has been said:
               In striking a balance between the liberty of the subject and the proper
               administration of justice, the imposition of conditions can be decisive. Where bail
               can be granted subject to safeguarding conditions, the court should, if possible, lean
               in favour of doing so…. (See headnote, S v Bennett 1976 (3) SA 652 (C).”

       In casu the State has not in my view, shown why each individual respondent ought not to
be granted bail or is not a suitable candidate for bail. Having heard the submissions made on
behalf of the respondents by the respondents’ legal practitioners, the public prosecutor did not take
it upon himself to answer to the detailed allegations made. He gave a rather bald and generalised
response. In answer to questions posed by this court, State counsel submitted that the
circumstances of the rest of the respondents were not given as much attention or coverage by both
the public prosecutor and the respondents’ legal practitioner, as was given to the first
respondent’s. I may comment on this in passing. There is an element of truth in this submission
albeit in varying degrees with respect to the public prosecutor and the respondents’ legal
practitioner. This observation seems to me to be a sad reflection of the reality manifesting in this
case. Although twenty four respondents are cited and are all represented by the one counsel, it is
only the first respondent whose cause has received most of the individualised and in this case
animated attention from both the State and the defence counsel. This same scenario appears to
have also prevailed in the proceedings before the magistrate. Could this apparent differentiation be
based on the fact that the first respondent is a public figure and a prominent member of society
and the other respondents are not? If this be so, this is no valid justification for such an approach
as the law does not discriminate. All persons are viewed equally before the law. I need not
comment any further on this aspect.
       For the reasons discussed above, I am satisfied that it has not been shown to this court that
each and every one of the respondents is not a suitable candidate for bail. It is my considered view
that appropriate or suitable conditions can be imposed upon the respondents to ensure that the
proper administration of justice will not be prejudiced.
       I therefore find that the respondents are entitled to bail. The appellant’s appeal is
dismissed. This finding was pronounced in court on 11 March 2011. I then proposed to impose the
same conditions as were set by the magistrate. I also proposed to add a condition requiring each
respondent to periodically report and present himself or herself to the Police. I then invited both
9
HH 72-2011
B 138-161/11
B 172/11

counsel(s?) to assist the court in suggesting any other possible and suitable conditions or make any
other submissions they may wish to make on the issue of applicable conditions, for the
consideration of the court. Both counsel asked for an opportunity to confer amongst the parties.
The request was granted and they advised the court of their agreed position on this aspect.
Thereafter orders were issued to the following effect:
       1.      Each respondent shall deposit US$50.00 with the clerk of court at Nyanga
               Magistrates Court.
       2.      Each respondent shall reside at his or her given address until the finalisation of this
               matter
       3.      (a)      The first respondent shall report at Harare Central Police Station, CID Law
                        and Order section once every Friday between the hours of 6.00am and
                        6.00pm.
               (b)      Each and every one of the second to the twenty third respondents shall
                        report at Nyamaropa Police Station once every Friday between the hours of
                        6.00am and 6.00pm.
               (c)      The twenty fourth respondent shall report at Nyanga Police Station once
                        every Friday between the hours of 6.00am and 6.00pm.
       4.      Each respondent shall not interfere with State witnesses and investigations directly
               or indirectly until the finalisation of this matter.




       The Criminal Division, Attorney-General’s Office, appellant’s legal practitioners
       Zimbabwe Lawyers for Human Rights, respondents’ legal practitioners