THE State V Takadu Oxford Mangwiro

### Preamble
1
HH 809-18
CRB 1473/18
THE STATE
versus
---------


==============================

THE STATE
versus
TAKADU OXFORD MANGWIRO

HIGH COURT OF ZIMBABWE
TSANGA J
HARARE, 26 OCTOBER & 6 December 2018

Bail application

C Bare, for applicant
K Mufute, for respondent

TSANGA J: The applicant who faces three counts of murder and one of attempted murder sought bail. The three people shot to death were all members of his employee’s family in particular the employee’s wife and two minor children. What triggered the shootings was some missing grain which the applicant suspected his worker to have stolen. I denied applicant bail and provided oral reasons which I said I would reduce to writing.

Initially the State was opposed to bail particularly on the grounds that the alleged offences were grave by any measure and hence the risks of abscondment were high. The evidence against the applicant was said to be overwhelming. Moreover, the applicant was said to reside in the same village with the witnesses increasing the chances of interference. The respondent therefore concluded that there existed compelling reasons for denying bail.

Applicant filed supplementary submissions and proffered a different address which was that of his son who stays in Mutare. He also provided a letter from the Registrar General stating that he does not have a passport. As such, his counsel argued that he was not a flight risk and would stand trial. He was said to be of advanced age at 70 years old and of poor health.

Despite these submissions I was still not convinced that he was a proper candidate for bail in this case. Section 117 (5) also makes it clear that notwithstanding the fact that the state is not opposed to bail the court still has the duty to weigh up the personal interests of the accused against the interests of justice. The state of health of the accused, the period for which the accused has already been in custody since his arrest, and the likely period of detention until the matter is disposed are all factors to be considered in balancing these interest. Suffice it to note that:

“The fact that the accused is in poor health generally, or requires specialist treatment for a specific ailment, may reduce the risk of abscondment or the commission of further crimes in particular cases, but is nonetheless unlikely to up the scales in accused’s favour: It has been said repeatedly that medical attention and even hospitalisation are available to persons in custody”.¹

Again, as regards old age, it has been observed as follows:

“The fact that the accused is of an advanced age may similarly indicate an unlikelihood of abscondment or some other breach of bail conditions but is nevertheless not regarded as a particularly cogent factor in a bail application”.²

The fact that he is seventy years old and has no passport is therefore not the point. It is true that bail is not to be withheld as a punishment and that its requirements hinge on securing the attendance of the prisoner at trial. The court is not there to pass judgment on the innocence or guilt of the accused. Nonetheless the nature of the charge and the evidence against the accused and the punishment to which he would be liable if convicted are important considerations which cannot be ignored. Furthermore, the onus is placed on the accused to show that proof of his guilt is not evident or that the presumption is not great.

Whilst seriousness of an offence on its own is insufficient to deny bail, here proof is evident and the presumption is great of the commission of the multiple murders by applicant. It would certainly not be proper to grant him bail. Granting of bail would “undermine or jeopardise the objectives or proper functioning of the criminal justice system including the bail system.” In considering this ground, the court is enjoined by s 117 (3) (d) to take into account among stipulated factors, any others which in the opinion of the court ought to be considered. Almost an entire family was mowed down. The accused had only just been placed in custody following his commission of the offence. The integrity of the investigation needed to be protected.

It was for these reasons that I denied the applicant bail.

*Murambatsvina Legal Practice, Applicant’s Legal Practitioners*

*National Prosecuting Authority, Respondent’s Legal Practitioners*

---

¹ See John van der Berg *Bail a Practitioner’s Guide 3rd Ed* (Juta) 2015 at p 151

² Van der Berg above at p 152
--- END OCR FALLBACK ---