Chemunorwa Chikosha v The State

1
                                                                                         HB 54/22
                                                                                        HCB 21/22

CHEMUNORWA CHIKOSHA


Versus


THE STATE




IN THE HIGH COURT OF ZIMBABWE

MAKONESE J

BULAWAYO 3 FEBRUARY AND 3 MARCH 2022




Bail Pending Trial


Applicant in person
T.M Nyathi, for the respondent

         MAKONESE J:          This is an application for bail pending trial. Applicant is facing a

charge of unlawful possession of raw ivory in contravention of Section 82(1) of the Parks and

Wildlife Act 128 (b) of the Parks and Wildlife Act (Chapter 20:14) as amended in Section 11 of the

General Law Amendment 5/2011 “possession of raw unmarked or unregistered ivory. The applicant

denies the charges and contends that he is a proper candidate for bail. The State opposes this

application.



         Factual Background



         The State alleges that on the 1st October 2021 near ZRP Mzilikazi, Bulawayo, the applicant

and his co-accused were walking along the pavement heading towards Makokoba bus terminus. 1st

accused was carrying a satchel. When the police stopped the two, accused one dropped the satchel
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and fled. The police chased and caught him. The police searched the satchel and found some ivory.

After investigations, the police realised that the applicant co-owned that ivory together with 1st

accused.



       The applicant who is not legally represented filed a detailed hand-written bail statement

citing sections of the Constitution of Zimbabwe and relevant case law on the aspect of bail. In his

bail statement applicant avers that he is a family man with three children of fixed abode, that he

should be released on bail pending trial and that he will be able to stand trial.

       The respondent opposed this application on two main grounds that:

       (i)       the applicant is likely to abscond if granted bail pending trial.

       (ii)      the Investigating Officer’s affidavit indicates that the applicant has a pending case at

                 the Harare Magistrates Court CRB 1034/21 and has a warrant of arrest for

                 absconding.



       During his oral submissions, applicant claimed that the matter in CRB1034/21 was finalised.

This is not true. In Masopo v The State HB226/21, I reiterated that:-



       “In applications of this nature, and where the court is not conducting a trial of the

       matter, the applicant is required to place before the court all the material facts

       surrounding the commission of the offence. The court is less likely to exercise its

       discretion in favour of an applicant who seeks to conceal vital information to the

       court.”

       An applicant in a bail application has a duty to disclose all material facts to the court.

Further, applicant made no attempt to furnish this court with what his defence will be. In S v Ndlovu

2001(2) ZLR 26 the court held that:-
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       “It is desirable for an accused person to lay before the court in a bail application what        his

defence will be at trial as such has a bearing on the assurances that he will       indeed stand trial”.



       The Law Relating to Bail Pending Trial



       The law on bail is well traversed in this and other jurisdictions. The court must exercise its

wide discretion and weigh the applicant’s personal interests against the interests of the due

administration of justice. Bail must be granted where there is no danger to the interests of justice. In

bail applications the courts are guided by section 50 and 70 of the Constitution of Zimbabwe

(Amend No. 20) 2013 as read together with Section 117 of the Criminal Procedure and Evidence

Act (Chapter 9:07). Section 50 of the Constitution provides that:-

       “Any accused person who is arrested

       (d) must be released unconditionally or on reasonable conditions pending a charge           or

trial, unless there are compelling reasons justifying their continued detention.”

       Section 70(1) of the Constitution provides that:-

       “Any person accused of an offence has the following rights

       (a) to be presumed innocent until proved guilty”



       Section 117 subsection (2) (a) of the Act provides that the refusal to grant bail and detention

of an accused in custody shall be in the interests of justice where one or more of the following

grounds are established:-

(a) Where there is a likelihood that the accused, if he or she were released on bail will:

               (i)     endanger the safety of the public or any particular person or will commit an

               offence referred to in the First Schedule or
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                (ii)    not stand his or her trial or appear to receive sentence or,

                (iii)   attempt to influence or intimidate witnesses or to conceal or destroy evidence

                or,

                (iv)    undermine or jeopardise the objectives or proper functioning of the criminal

                justice system, including the bail system.



         The courts have interpreted the meaning of compelling reasons in several decided cases. In

cases where the applicant in a bail applicant is likely to abscond or is a flight risk, this will be

deemed to be a compelling reason. On the facts of this case it is not disputed that the applicant and

his co-accused were found in possession of 8 pieces of raw ivory. The seriousness of an offence on

its own does not lead to a conclusion that an accused person is unlikely to stand trial. It is not

disputed that the applicant has a warrant of arrest for a case of a similar matter. The applicant

clearly has a propensity to abscond and is currently on a warrant of arrest.



         For these reasons, I find that applicant is not a suitable candidate for bail. The administration

of justice would be compromised if applicant is granted bail as he may be tempted to flee to avoid

trial.



         In the circumstances, the application be and is hereby dismissed.




Applicant in person

National Prosecuting Authority, respondent’s legal practitioners.