Abdelmaksound Issam Ali Abbas v The State

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1
HB 81/22
HCB 95/22
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ABDELMAKSOUND ISSAM ALI ABBAS

Versus

THE STATE

IN THE HIGH COURT OF ZIMBABWE

KABASA J

BULAWAYO 22 AND 24 MARCH 2022

Appeal Against Refusal of Bail

N. Sithole, for the appellant

B. Gundani, for the respondent

KABASA J:	This is an appeal against the refusal by the court a quo to grant the appellant bail pending trial.

The background facts are these: - The appellant is an Egyptian national.  On 12th November 2021 he came to Zimbabwe on a visa which was due to expire on 12th December 2021.  He did not leave the country when the visa expired but stayed on until 7th March 2022 when he was arrested by Immigration officials at number 19 Barring Drive Barham Green where he was staying with his wife, who is Zimbabwean.

The appellant was subsequently charged with contravening section 29 (1) (a) as read with section 29 (2a) of the Immigration Act, Chapter 4:02, which is to the effect that no alien shall enter or remain in Zimbabwe without a permit.

The appellant appeared in court on 8th March 2022 and sought to be admitted to bail, which application was opposed by the state.  The opposition was premised on the fear that he was a flight risk ostensibly because he had tried to evade Immigration officials when they went to arrest him.

The Investigating Officer testified and stated that he had been advised that the appellant had attempted to flee from Immigration officials and was only arrested at a neighbour’s house where he had fled to.

The appellant called his wife to refute the allegations, which she did. She testified to the effect that the appellant was arrested at her home and did not attempt to flee.

The court a quo considered the submissions and refused to grant the appellant bail.  In coming up with that decision the court considered the competing interests between the liberty of the appellant and the proper administration of justice.  The learned Magistrate referred to the decision in S v Jealous Nemaranga and Another HMA 03-16 where the Judge emphasized the right of an accused person to be released unconditionally or on reasonable conditions pending trial, unless there are compelling reasons to deny the individual bail. The magistrate was therefore alive to the need to strike a balance between the liberty of the individual and the proper administration of justice.

After considering what amounts to compelling reasons the court a quo found that the fear of abscondment was not substantiated as the state outline did support the appellant’s submission that he was arrested at 19 Barring Drive Barham Green where he was staying.  There was therefore no evidence of an attempt to flee warranting the conclusion that he was a flight risk.

The learned Magistrate then proceeded to reason as follows:-

“It is common cause that the accused’s visa expired on the 12th of December 2021.  Whether the accused was then advised to continue his stay in the country without a visa is immaterial at this stage.  Prima facie the accused’s stay in the country from 12th of December 2021 to date was illegal.  I am mindful of the principle of the presumption of innocence that is enshrined in section 70 of the Constitution and that it works in favour of the accused but from the agreed facts a conviction is likely, therefore it will be gross miscarriage of justice to admit the accused on bail.  Admitting the accused to bail amounts to condoning an illegality.  The accused is before the court for illegal remaining (sic) in the country and as he stands before this court he is still illegal in the country.  If he is released on bail to reside at the given address the court will be simple confirming (sic) his illegal stay and now in the form of a court order.  Ordering the Immigration department to grant the accused a temporary permit will not sanitize his conduct.  A temporary permit is granted by Immigration Department not by this court after an application and an application is subject to either granting or dismissal.  Furthermore, the accused did not exhibit any signs of a person who can comply to an order (sic).  He had a visa expiring on the 12th of December 2021 and he failed to comply and exit the country by the said date.  How then can this court be sure that he will be able to comply with the bail order if one is granted.  It is my findings that the state managed to produce compelling reasons on why the accused should not be granted bail and, accordingly the accused be and is hereby denied bail.”

Did the learned Magistrate misdirect himself?  Is there any irregularity in the decision or what was considered by the court a quo to warrant interference by an appellate court?

This court is not being asked to exercise its own discretion as it would were it the court of first instance.  It is sitting as an appeal court.  This court cannot therefore substitute its own discretion for that of the Magistrate in the absence of misdirection or irregularity (A-G v Ruturi HH 26-03).

Counsel for the appellant contended that the appellant is lawfully in Zimbabwe provided he is issued with a temporary permit.  The court should therefore have granted bail and included a condition that appellant is to deposit US$1 000 with Immigration, being the fee for a temporary residence permit, before applicant’s release on bail. This is self-contradictory, the appellant has no document authorising his stay in Zimbabwe and so he is illegally in the country. His stay can only be regular if he is granted the temporary residence permit counsel referred to.

To grant bail and impose the condition suggested by counsel is tantamount to interfering with the Immigration processes.  The court a quo correctly reasoned that such applications are made to that department and the decision to grant or refuse is entirely up to these officials.  It is therefore not for the court to impose a condition which is dependent on a process the court has no control of.  It is tantamount to perpetuating an illegality as observed by the court a quo.

The fact is the appellant’s visa has expired.  He has to regularise his stay if he would like to legally remain in Zimbabwe.  Under such circumstances granting him bail is in essence allowing him to remain in the country illegally. Granting of bail is in essence allowing him to go home and attend court coming from home. The question is where is home? Appellant’s home is in Egypt as that which authorised his stay in Zimbabwe is no longer available to him.  I therefore find no fault with the magistrate’s reasoning and find no basis to interfere with the court a quo’s decision.

Mr Sithole, for the appellant conceded that there is nothing which stops the appellant from seeking to regularise his stay whilst he is in prison.  Should the application for a temporary residence permit be granted that in itself would amount to changed circumstances entitling him to seek bail on the grounds of changed circumstances.  Should the application fail because, as submitted by counsel, Immigration officials may use the refusal of bail to refuse to grant him the permit, such refusal based on that ground would in my view, equally make a case for seeking bail on the basis of changed circumstances.  The argument being that Immigration officials would have granted the permit but for the fact that bail was refused.  This would then address the reason why bail was refused. The appellant would then be assured of a legal stay and granting him bail would not be perpetuating an illegality sanctioned by a court order.

It is also worth noting, as submitted by Mr Gundani for the respondent, that the appellant spent 2 months after the expiry of his visa.  Had Immigration officials been desirous of acceding to a request to regularise his stay, such could have been done at the time he was arrested.  He was however handed over to the police for prosecution.  An order that allows him to deposit US$1 000 to the department of Immigration which is the fee for a temporary residence permit is in essence usurping the powers and authority of the department. The court must allow that department to exercise its unfettered discretion without interference.

The court a quo also made the observation that by staying in the country illegally, the appellant showed that he cannot be trusted to comply with lawful orders.  Granting bail under such circumstances would therefore be a failure to ensure that the proper administration of justice is not prejudiced or compromised.

As was enunciated in S v Fourie 1973 (1) SA 100

“It is a fundamental requirement of the proper administration of justice that an accused person stand trial and if there is any cognizable indication that he will not stand trial if released from custody, the court will serve the needs of justice by refusing to grant bail, even at the expense of the liberty of the accused and despite the presumption of innocence…”

The learned Magistrate posed this question:-

“How then can this court be sure that he will be able to comply with the bail order.”

This question was a rhetorical question meant to show that given the appellant’s illegal stay in the country there was no guarantee a court order would meet a different fate.  The proper administration of justice would therefore be compromised. The proper administration of justice entails an observance of court orders and compliance with bail conditions engenders confidence in the justice delivery system and promotes the efficacy of the bail system. It is therefore not a contradiction to hold that the denial of bail is not premised on the appellant being a flight risk but rather on his circumstances of being illegally in the country, with no home to go to from where he can lawfully reside whilst attending court.

The court a quo’s decision cannot be faulted.  The exercise of its discretion is not vitiated by misdirection or irregularity.  There is therefore no basis for this court to interfere with the Magistrate’s decision.

That said, the appeal against bail refusal be and is hereby dismissed.

Ncube Attorneys, applicant’s legal practitioners

National Prosecuting Authority, respondent’s legal practitioners