The
applicant is facing a charge of murder as defined in section 47 of the Criminal
Law (Codification and Reform) Act [Chapter 9:23]. It is being alleged that on
an unknown date between the 27th of July and 3rd of
August 2011, the applicant, with seven others, struck the now deceased with a
sharp object on the head and thereafter removed his tongue, brain, nose, lips
and four fingers. The applicant made an application for bail pending trial in
this court. The applicant's application for bail was dismissed on 6 September
2011. The basis of the dismissal was mainly the likelihood of abscondment in
view of the nature and gravity of the offence and the strength of the case
against the applicant. Further, it was held that there was a likelihood that
the applicant will interfere with State witnesses like Cecilia Khumalo.
It
is contended in the application that there is no longer a risk of interference
as a statement has been recorded from Cecilia Khumalo. Further, it is intimated
that investigations have been done since 15 August and that the investigations
should be complete by now making the applicant not pose a threat to the
interests of justice, and, by extension, a good candidate for bail.
In
S v Aitken (2) 1992 (2) ZLR 463 (S) it was held that where a bail application
has previously been refused and a further application for bail is made to the
High Court such an application can only be entertained if fresh facts are
elicited that were not before the court when it refused bail. Fresh facts were
defined as “new facts which, viewed in conjunction with other relevant factors
both adverse and favourable to the accused, tend to reduce in significant
degree the risk of abscondment before trial.”
It
is generally recognized that the passage of time since the making of an
application for bail can, in certain circumstances, be viewed as a fresh fact.
A month has lapsed since the making of the initial application of this nature. The
applicant is entitled to lay before the court facts which have arisen or which
have been discovered subsequent to the initial judgment dismissing the bail
application. It is apparent that at the time of the initial bail hearing a
statement had already been recorded from Cecilia Khumalo. So reference to it
now cannot rank as a fresh fact. In the bail ruling of 6 September 2011, this
court made a specific finding that there was a high likelihood of the applicant
interfering with State witness, Cecilia Khumalo, who is her niece. This finding
was vindicated because of what the applicant avers in paragraph 10 of the
present application. In her own papers, the applicant had evinced that she had
already underhandedly interacted and solicited for information from Cecilia
Khumalo. At the end of the day, fears of interference have not been dispelled,
but have, on the contrary, been strengthened. The applicant has not shown that
fresh facts exist in relation to the case against her to warrant her being
granted bail.
Accordingly,
the application is dismissed.
