Judgment No. HB 135/2002
Case No. HCA 140/2002
IN THE HIGH COURT OF ZIMBABWE
BULAWAYO 21 OCTOBER & 12 DECEMBER 2002
P Harefor the applicant
H Ushewokunze IIIfor the respondent
CHEDA J: This is a bail application against applicant’s continuous
incarceration before trial. Applicant is facing a charge of theft of a motor vehicle and
alternatively being found in possession of goods which give rise to a suspicion that
they were stolen.
The brief facts are that on 9 August 2002 at about 1400 hours appellant’s sister
was found in possession of a motor vehicle being a Nissan Sunny Sedan registration
number 550-078K, investigations by members of the police revealed that the
registration number in fact was similar to a Datsun Nissan Sedan. The owner of the
Datsun Nissan Sedan was IMF Executive Holdings, Bulawayo and it was involved in
an accident which resulted in it being written off. This, therefore, means that the
vehicle was no longer in existence. Appellant‘s sister then revealed that the motor
vehicle in question belonged to applicant which led to his arrest.
In his application for bail applicant argued that he is unlikely to abscond
- has no travel documents.
- has no means to flee as he has no relatives and/or connections outside Zimbabwe.
- Is confident that he will be acquitted of these charges because he bought the shell, engine and other parts from car breakers which explains his possession of the motor vehicle.
- Is unlikely to interfere with any witness as he does not even know who the witnesses are.
On the other hand respondent through Mr Ushewokunze argued that if granted
bail appellant is likely to commit further offences. The cardinal principle governing
these courts’ approach to bail is basically that the interest of justice must not be
prejudiced. This court, therefore, in determining whether or not appellant should be
admitted to bail, should as a necessity balance appellant’s right to liberty against the
administration of justice. In McCarthy v R 1906 TS 657 at 659 INNESCJ stated,
“the court is always desirous that an accused should be allowed bail if it is clear that the interests of justice will not be prejudiced thereby.”
While appellant was on bail, it is alleged he committed a similar offence and it
is for this reason that, respondent is of the strong view that he should be deprived of
his liberty because of this propensity to commit further crimes. REYNOLDSJ in A-G v
Eric Derrick PhiriHH-487-87 at p 6 remarked,
“It is my view that a person who commits a similar offence to the one with which he is charged while on bail shows not only a disregard for the rule of law, but contempt for the administration of justice as well.”
I fully associate myself with these remarks by the learned judge as it is clear
that such a person is least bothered by the allegations against him. In a normal
situation, the last thing to do, is for such a person to find himself improperly
associated with similar allegations. It is clear that to such a person the old adage,
“once beaten twice shy” has no meaning in his vocabulary.
It is, perhaps necessary to briefly deal with the basic principles of bail in
relation to an accused. The presumption of innocence has been unanimously accepted
as a rule which operates in favour of the accused’s pre-trial liberty.
J Van der Berg: Bail, A Practitioners Guide, Juta & Co 1986 at p 59 the
learned author lays down the paramount considerations which the court should take
into account in striking a balance between the interests of the accused and the interests
of the administration of justice as follows:
- whether the accused will stand trial
- whether the accused will interfere with state witnesses
- whether the accused will commit offences while on bail; and
- whether accused’s release will jeopardise law and order or state security.
Our courts have previously refused bail where there is a likelihood that
accused will commit further offences while on bail, see S v Patel 1970 (3) SA 565
The likelihood to commit further crimes must be a real risk. In order to
determine the absence or existence of such risk, in my view it is pertinent to take into
account all the surrounding circumstances of the allegations appellant is facing while
at the same time always bearing in mind the principle of the presumption of innocence
which favours the accused until adjudicated and convicted by a competent court.
In the present application, applicant was on bail when it is alleged that he
committed the offence of which he is applying bail for. He was on bail for a similar
offence, i.e. involving theft of a motor vehicle. In as much as he is presumed to be
innocent I find that he is either deliberately involving himself in situations which
border on dishonesty or is carelessly sailing too close to the wind. This type of
behaviour, unfortunately leads one into the only irresistible conclusion, that he has
a propensity of committing further crimes and such behaviour certainly offends and
prejudices the interest of justice.
In light of the above, I find that appellant is certainly not the candidate for
admission to bail, his application is accordingly dismissed.
Hare & Partnersappellant’s legal practitioners
Attorney-General’s Officerespondent’s legal practitioners