Raymos Tsiga v The State

### Preamble
1
HMT 57-20
B 125/20
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RAYMOS TSIGA

versus

THE STATE

HIGH COURT OF ZIMBABWE

MWAYERA J

MUTARE, 6 and 20 August 2020

Appeal against Bail Refusal

J Gusha, for the Appellant

Mrs J Matsikidze, for the Respondent

MWAYERA J: The appellant approached this court dissatisfied with the Magistrates Court’s decision of dismissal of his bail application pending trial. The brief background of the matter is that appellant was arraigned before the Magistrates Court facing a charge of possession of dagga as defined in s 156 (1) (2) of the Criminal Law (Codification and Reform) Act [Chapter 9:23]. The allegations being that on 10 June 2020 the accused person together with the other unknown persons proceeded to Ruwangwe area where they loaded 11 x 50 kg sacks of dagga into a silver Toyota vehicle Registration AEI 3787. Upon approaching a police manned road block the vehicle did not stop but sped off prompting the policemen to fire at the vehicle tyres. The vehicle veered off the road and over turned once. The occupants escaped leaving behind 11 x 50 kg sacks of dagga, Hisense cell phone and an Itel cell phone. The Itel phone belonged to the appellant and had been previously booked as an exh in a similar case with the police, Ruwangwe CR 22/05/2020.

The other accomplices were not apprehended at the time of bail hearing and the present appeal. In an appeal against refusal of bail by the Magistrate Court, the Magistrate’s ruling is central because what falls for consideration is whether or not the Magistrate erred or misdirected herself in her decision to deny the appellant bail. It is the reasoning leading to the disposition which falls under scrutiny in order to assess whether the court a quo erred or faulted warranting interference by the Appellate Court. See Malunjwa vs The State HB 34/2003 and also Edgar Ndlovu vs The State HB 272/18. In Malunjwa’s case supra ndou j emphasised what falls for consideration in an appeal against refusal of bail by the court of first instance. The Judge underscored that the appeal must be directed at the Magistrate’s judgment. In the absence of the appellant showing misdirection on the part of the Magistrate on facts or law or both or that the judgment is irrational, the appeal cannot succeed.

In an application for Bail Pending Trial the factors that fall for consideration are fairly settled. The court has to seek to strike a balance between the individual fundamental right to liberty which is enshrined in our Constitution and anchored on the presumption of innocence until otherwise proven guilty by a competent court of law, and on the other hand to be weighed against the right to liberty is the interest of administration of justice which is underpinned on the societal interest to have accused appear for the matter to be prosecuted to its logical conclusion.

In seeking to balance the right to individual liberty and the interest of administration of justice it is imperative for the court to consider among other factors the circumstances of the individual case, the nature of the case, the strength of the state case and the seriousness of the allegation cumulatively. The bail factors for consideration as provided for in s 117 of the Criminal Procedure and Evidence Act [Chapter 9:07] and indeed in s 50 of The Constitution should not be considered in isolation in making a determination on whether or not the admission of the applicant will jeopardise the administration of justice. The wording of s 50 of The Constitution makes it clear that only where there are compelling reasons should an applicant be denied his right to liberty. Section 50 (1) (d) states:

“Any person who is arrested must be released unconditionally or on reasonable conditions pending a charge or trial unless there are compelling reasons justifying their continued dention.”

See Munsaka v The State HB 55/16. The court in exercising its discretion to admit or not admit the applicant to bail has to strike a balance between protecting the liberty of the individual and safeguarding the proper administration of justice. See AG vs Phiri 1998 (2) ZLR and S v Essack 1965 (2) SA 161. In circumstances where the release of the applicant on bail pending trial does not undermine and jeopardise the objectives of proper function of the criminal justice system including the bail system then the court should lean more in favour of upholding the right to liberty. However, where there are dangers and real fear of prejudicing the interest of proper administration of justice then the court should safeguard the interest of administration of justice.

In the present case a close look at the ruling of the court a quo reveals that the court was alive to the bail principles that fell for consideration in applications for bail pending trail. The court considered the circumstances informing the allegations and submissions by both the applicant and respondent respectively. The Magistrate was alive to the applicable law as provided in the supreme law of the country the Constitution, the Criminal Procedure and Evidence Act and case law. The decision was arrived at after proper and careful analysis of all the factors that fall for consideration. The court a quo considered the serious nature of charge, alleged possession of huge quantity of dagga 11 x 50 kg, the strength of the state case considering that the recovered dagga and accused’s cell phone were in the vehicle in which the dagga was.

Further that the same cell phone had been booked by the police for alleged possession of dagga 181 kg although the case had not yet come to court the charge sheet was attached with a CR 21/05/2020, that evidence was relevant for bail consideration. The court considered the severity of the offence together with the strength of the State case and the likely severe sentence in the event of conviction as factors which would act as an inducement to the abscondment. The fears of the state of abscondment to the detriment of proper administration of justice in the circumstances cannot be said to be far-fetched or speculative. This is more so when one considers that the occupants of the car in which applicant’s phone and large quantity of dagga was recovered sped off a road block and fled after the vehicle over turned following the police shooting the vehicle tyres. Such conduct connotes high probability of likelihood to abscond and flee from justice. That coupled with the likely sentence in the event of conviction for the serious offence involving about 550 kg dagga which would invariably be for sale and distribution buttressed the fears of the applicant being a flight risk to the detriment of the societal interest of having matters prosecuted to their logical conclusion.

The court a quo in exercising its discretion to grant or dismiss the bail application properly considered the risk of abscondment while being alive to the circumstances of the matter, nature of the charge, severity of the punishment to be likely meted out and apparent strength of the State case. See S v Jongwe ZLR (2) 2002 209 S. the applicant did not take issue that a cell phone was recovered from the vehicle in which the dagga was and that it had been previously booked as an exh by the police in similar allegations but took issue that the earlier matter was not yet before the courts and that the exh tendered for telephone record was illegible. Indeed the exh was illegible and was therefore of no probative value to the court. The fact however remained, that the applicant was linked to the offence by the cell phone which was recovered from the vehicle with 11 x 50 kg dagga. The cell phone which had previously been booked by the police. Appellant was further linked by that he was identified by a police officer Bere as he was fleeing with colleagues. The court a quo properly assessed submissions placed before it and concluded that the interest of administration of justice would be prejudiced considering the totality of circumstances of the allegation, including that applicant’s accomplices are still at large, the nature of the allegations, the quantity of the dagga recovered, evidence linking the applicant and the likelihood of abscondment.

In seeking to balance the right to individual liberty and the interest of proper administration of justice the court a quo properly made a finding that there are compelling reasons why the applicant should not be admitted to bail.

Accordingly it is ordered that:

The appeal against bail refusal by the court a quo is dismissed.

Gurira & Associates, Appellant’s legal practitioners

National Prosecuting Authority, Respondent’s legal practitioners