Winnock Hahlani and James Tabu v The State

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HH 259/13
CASE NO. B 626/13
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WINNOCK HAHLANI

and

JAMES TABU

versus

THE STATE

HIGH COURT OF ZIMBABWE

MWAYERA J

HARARE, 22 July 2013

BAIL PENDING TRIAL RULING

V. Zvobgo, for the applicant

S. W. Munyoro, for the State

MWAYERA J: The two applicants who are being charged of the Criminal Law (Codification Reform) Act [Cap 9:23] approached the court through the legal practitioner of record on as application for bail pending trial.  The state opposed the application. Both counsel for the applicants and respondents in addition to the written submissions orally addressed the court.

Our law in applications of this nature is fairly settled.  The court is enjoined to strike a balance between the right to individual liberty which is premised on the presumption of innocence till proven guilty by a competent court of law on one hand and the interest of administration of justice which is premised on the social interest of ensuring that a matter is prosecuted to its logical conclusion on the other hand.

The applicants are both given as man of fixed aboard with family responsibilities and that they will attend trial.  The applicants counsel also presented argument that one of the applicant’s co-accused one was Hoosein Karim was admitted to bail.

I must hasten to point out that the court appreciates the need to treat alleged offenders the same in situations where they are facing the same changes.  Sight should however, not be lost of the fact that each individual’s circumstances come under scrutiny when the court considers the right to individual liberty on one hand and the interest of administration of justice on the other hand Hoosein Karim who was admitted no bail was thinly and scarely linked to the allegations with a suggestion that he supplied information to his accompliances concerning the complainant therefore movements to the bank.  The said Hoosein was not was not employed at Waverley Blankets and it remained speculation that he knew anyone and or movements at Waverly Blankets.

Given such haze scenario his admission to bail would not generalise to interest of administration of justice for there is no incentive to abscond.

Now turning to the applicants before this court they are alleged to have teamed up with others in an armed robbery.  Both applicants are said to be linked to the offence in that they made indications to the police and that a Toyota Altezza and Ford pick up truck which were bought from the proceeds of armed robbery were recovered from them.  The second applicant is said to have led the police who recovered $3 000-00 from his residence and that he led to the arrest of the other accomplices. The applicants appreciative of the fact that in bail applications the onus is on them to show their suitability or otherwise for bail went ahead to adduce evidence in terms of s117 (b) considering the offence they are facing falls under the 3rd schedule of the Criminal Procedure and Evidence Act [Chapter 9:07].  Both applicants adduced evidence in affidavit form in comply with the section which a bid to raises the standard of proof of suitability for bail.  The said section requires the applicant to adduce evidence which shows the existent of special circumstances that is extraordinary circumstances warranting the placement of the applicants on bail.  The section clearly require more than just a mere frame of the defence outline but evidence which demonstrates or shows the veracity of the assertion in a bid to show the probability of acquittal from the charges.

The broad frame works given by the applicants that the truck recovered belonged belonging to the first applicant’s is mother and that the second applicant was simply arrested because his number was the last dialed by first applicant falls short of satisfying the special circumstances as envisaged by the act.  The fact that both applicants have not adequately addressed the court on existence of exceptional circumstances when viewed in conjunction with seriousness of the charge (gang armed robbery) the strength of the state case and the likely sentence in the event of conviction (which is length imprisonment) is likely to incentivise the applicants into absconding thus threatening the administration of justice.

The likelihood of interference with investigations is not far fetched given that this was gang armed robbery and some accomplices have not yet been accounted for.

When cumulatively considered the fact that there are no special circumstances advanced warranting admission of the applicants to bail and no that there are threats to the administration of justice in the form of abscondment and interference with investigations presents the applicants as not suitable candidates for bail.

The application is accordingly dismissed.

Messrs Ngarava Moyo &Chikono, applicant’s legal practitioners

The Attorney General, respondent’s legal practitioners