BHUNU J: The accused persons are charged with murder of a
policeman in the course of duty on 29 May 2011.
This has been a protracted trial fraught with applications and counter
applications. The state has now applied for a two week postponement of the
trial to facilitate the calling of an expert witness, a foreign doctor who
conducted the post-mortem on the remains of the deceased. There are certain
protocols and procedures that have to be fulfilled before the foreign doctor
can testify before our local courts. The long and short of it all is that he
can only testify with the permission of his mother country.
The state has however met some challenges in obtaining such permission
from the foreign country although with better organisation and foresight things
could have been expedited. Conscious of the need for the trial to move on
without unnecessary prejudice to the accused the state has undertaken to
seriously consider dispensing with the evidence of the foreign doctor should
they fail to secure his clearance to testify in this Court from the relevant
authorities by the end of the two week suspension.
Apparently frustrated by the proposed two week delay the defence has countered
with an application for bail for those accused still in custody and relaxation
of bail conditions for those out on bail. The defence's argument is that had
the state been diligent enough it ought to have timeously made the necessary
arrangements to facilitate the availability of all witnesses as and when
required.
There is some force in this argument. It was remiss of the state to leave the
necessary arrangements until late into the trial. Had the state acted
conscientiously with some measure of due diligence this postponement and
resultant prejudice to the accused could have been avoided.
Despite the above observation the overriding consideration is whether or not
the granting of bail or relaxation of the bail conditions will compromise the
ends of justice. In other words the Court is duty bound to balance the interests
of the individual to freedom and the due administration of justice. See S v
Benatar 1985 (2) ZLR 205. As pointed out by SANSOLE J in that case the
balance is a delicate one.
The primary consideration is however, whether the accused will attend his
trial. In S vNdlovu 2001 (2) ZLR 261 (H) it was held that,
the primary question to be considered in deciding whether the accused should be
granted bail is whether he will stand trial or abscond.
In denying the 5 accused persons who are still in custody
in judgment number HH 456 – 12 at p 7 I had this to say:
“What emerges quite clearly from the evidence before me is that while there has
been a weakening of the state case in respect of the rest of the accused
persons it has
strengthened against the first, second, ninth, tenth and sixteenth
accused persons being:
1. Tungamirai Madzokere.
2. Yvonne Musarurwa.
3. Rebecca Masvikeni.
4. Last Maengehama and
5. Simon Mapanzure.
The above accused persons are not entitled to bail as they are a flight risk
owing to the
seriousness of the offence and their failure to establish the existence of
special
circumstances prescribed by law.”
That position remains the same it has not been altered by the proposed
postponement of two weeks. The evidence against these 5 accused persons remains
the same. It has not been diluted in anyway by the proposed postponement.
As previously stated there is direct evidence before me identifying and linking
the 5 accused persons to the commission of the offence. What remains to be
determined is the weight of the state evidence against the defence evidence.
Thus the real prospect of conviction cannot be excluded at this stage thereby
providing an incentive to abscond. There is no gainsaying the offence is a
serious one as it is a capital crime.
For the foregoing reasons, the 5 accused persons still constitute a flight
risk. That position has not change. The courts have said time without number
that it is not in the interest of justice to grant bail where the charges are
serious and there is overwhelming evidence against the accused. See Joice
Nyambuya and 2 Ors v The state HH 56 – 03 and SANDRAS
J vThe State SC – 81- 2000.
As regards the relaxation of bail conditions that can only be done in the light
of changed circumstances warranting such alteration of bail conditions. As I
have already pointed out there has been no changed circumstances beyond those
that prompted me to grant the remaining 24 accused persons bail. The offence
still remains serious and there is need to keep track and an eye on the accused
persons to ensure that they attend their trial.
The mere fact that the accused persons have religiously observed their bail
conditions cannot without more be evidence of the fact that they will not
abscond if such conditions are relaxed. Another way of looking at it is that
the accused persons have not defaulted because the bail conditions are working
as a restraint against default.
Turning to the application for postponement, although I have already noted that
the prosecution's state of preparedness leaves a lot to be desired the ends of
justice demand that all the relevant evidence be placed before this Court. The
sanctity of human life requires that whenever human life is lost the matter
whenever possible be determined on the merits rather than technicalities.
For the foregoing reasons it is accordingly ordered:
1. That the application for
postponement be and is hereby granted.
2. That the application for
bail be and is hereby dismissed
3. The application for the
alteration of bail conditions be and is hereby dismissed.
Zimbabwe Lawyers for Human Rights, legal
practitioners for the 1st to 27th applicants.
Musendekwa – Mutisi, legal practitioners for the
28th to 29 applicants.
The Attorney General's office, legal
practitioners for the respondent.
