Clenias Sitimela v The State

### Preamble
1
HB 310/20
HCB 203/20
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CLENIAS SITIMELA

Versus

THE STATE

IN THE HIGH COURT OF ZIMBABWE

DUBE-BANDA J

BULAWAYO 15 December 2020 and 5 January 2021

Bail application in terms of section 116 of the Criminal Procedure and Evidence Act [Chapter 9:07].

S. Drau, for the applicant

B. Gundani, for the respondent

DUBE-BANDA J:	This is a bail application lodged by the applicant after the first application was refused in this court. The first application was refused on the 27 August 2020. The applicant is now applying for bail on the basis of new facts.  He is jointly charged with four other persons. The five are charged with the crime of robbery as defined in section 126(b) of the Criminal Law (Codification and Reform) Act [Chapter 9:23]. The allegations are that; applicant, a member of the Zimbabwe National Army, in connivance with his accomplices executed an armed robbery at Inyathi, approximately sixty kilometres from Bulawayo. The applicant is alleged to have been in military gear and armed with an AK 47A, an assault rifle.

In refusing to admit the applicant and his accomplices to bail, this court in Tatenda Manokore, Nqobani Sibanda, Clenius Sitimela, Morgan Moyo and Bekithemba Sibanda v The State HB 179/20, at p. 8 of the cyclostyled judgment, made the following remarks:

In view of the above, I find that the state has a strong prima facie case against the applicants. The applicants are facing a serious charge of armed robbery involving the use of firearms by members of the army in uniform. If the applicants are convicted, they are most likely going to be sentenced to lengthy custodial terms, thus they will be tempted to abscond and not stand trial.

In support of this application, applicant relies on the affidavit of Dr Ncedo Ndlovu. In opposing this application, respondent filed written submissions and an affidavit from one Dr.Taurai Rugare.

The law

The proviso (ii) to section 116 (c) of the Criminal Procedure and Evidence Act [Chapter 9:07, which anchors this court’s jurisdiction to consider such an application, provides as follows:

Where an application in terms of section 117A is determined by a judge or magistrate, a further application in terms of section 117A may only be made, whether to the judge or magistrate who has determined the previous application or to any other judge or magistrate, if such an application is based on facts which were not placed before the judge or magistrate who determined the previous application and which have arisen or have been discovered after that determination. (My emphasis).

Section 116 provides an exception to the functus officio doctrine, which generally provides that once a court has pronounced a final order, it has no authority to correct, alter or supplement that order: the court’s jurisdiction in the case having been fully exercised, its authority over the subject matter ceases. The functus officio doctrine is one of the mechanisms by means of which the law gives expression to the principle of finality. According to this doctrine, a person who is vested with adjudicative or decision-making powers may, as a general rule, exercise those powers only once in relation to the same matter.Section 116 provides an exception to this doctrine, by according this court jurisdiction to re-hear a further bail application emanating from an applicant – whose previous application has been refused. To activate such jurisdiction, the applicant must put himself squarely within the parameters of the empowering provision. First, such application must be based on new facts; second, the facts relied upon must have arisen or been discovered after the first determination. Third, such new facts must not have been available to the applicant at the time of making the previous application. See: S v Chin'ono HH 567-20.  In S v Barros & Ors 2002 (2) ZLR 17 the court reasoned that the purpose of these requirements is to obviate the presentation of the same facts or variants thereof, over and over again in a bid to obtain bail, and also helps in achieving finality in the matter.

What constitutes new facts, and whether such facts have arisen or were discovered after the first determination is a factual issue.  Once the new facts have been alleged, the evidential burden shifts to the prosecution to show either that the fact or facts are not new, or such facts have been available to the applicant prior to the previous ruling. Once the applicant has established the existence of new facts, the court will then reconsider whether bail should still be refused or granted in the light of the new circumstances.  In the case of Daniel Range v SHB 127/04 the court said in determining changed circumstances, the court must go further and enquire as to whether the changed circumstances have changed to such an extent that they warrant the release of the suspect on bail without compromising the reasons for the initial refusal of the bail applications. It is on the basis of these legal principles that I now consider this application.

The law and the facts

For purposes of this bail application, applicant in his written application raised five circumstances which, it is contended constituted new facts. These are:

The applicant was shot as he was trying to mill his gold at Doves Mill. At the time the initial application was made, he was well. However his medical condition has deteriorated and as such he is in constant pain. When the decision to dismiss bail was arrived at that the prosecution case was strong against applicant the court did so on the strength only of the outline of the state case. It is contended by the applicant that insufficient information had been placed before this court when that decision was made. The applicant contends that so far the evidence placed before the court warrants a re-consideration of the first decision.

Applicant is suffering due to the pain from his legs. On the 6 October 2020, the applicant who has been in constant pain consulted a medical doctor who visited him at Khami Maximum hospital where he has been receiving treatment. The medical doctor attended to him and deposed to an affidavit which I seek to attach hereto as Annexure A.

Furthermore, the trial has been taking long as there are five legal practitioners including a watch in brief counsel. There are twelve witnesses whose statements were served on defence counsel and only three witnesses have testified. The evidence so far does not establish a strong case against the accused person.

The medical doctor has recommended that an urgent operation be done on him as he has a visible infection. The infection is life threatening as there are no adequate medical facilities or equipment at Khami Prison.

The applicant will not be in a position to escape as he is constantly sick and his leg is slowly getting paralysed. The applicant will not be in apposition to abscond bail as he personally cannot move around without assistance.

During oral hearing, Ms Drau, counsel for applicant, abandoned the other circumstances contained in the applicant’s written statement, and persisted with the allegation that applicant’s health condition has worsened since his incarceration, which is contended is a new fact. Applicant in the bail statement avers that at the time he made his first bail application he was well, his health condition deteriorated thereafter. This position is confirmed by Dr. Ncedo Ndlovu. In her supporting affidavit, Dr. Ncedo Ndlovu gives details of challenges afflicting applicant’s health. She says; applicant’s leg, from midway going down is becoming stiff due to increased tone and is losing sensation because of the damaged nerves. The skin on the leg is changing and becoming hyper pigmented as a result of the damaged nerves which supply the skin. He has a foot drop caused by the damaged nerves, as a result the muscles on the foot are weak and he cannot lift his feet. He has to drag his foot when walking. He requires surgery which cannot be done at prison.

According to the respondent, when applicant made his first bail application, he had already sustained the injuries he is complaining about, and he was being attended to by a medical doctor at prison and the same doctor is still attending to him now. It is contended that applicants’ health condition is not a new fact, as contemplated by section 116 of the Criminal Procedure and Evidence Act. Respondent relies on the affidavit of Dr Rugare Taurai, the doctor avers that he is treating applicant in prison. He says applicant has a shrapnel injuries, some of which are lodged in soft tissue. He says they are still awaiting for localising X rays – the films are been kept by the relatives. He avers that the patient is out of danger and his condition is not life-threatening. His symptoms are largely subjective and there is no evidence to support such.

It is important to note that Dr Rugare Taurai, the prison medical doctor, does not dispute that applicant’s health condition is worsening, all he says is that the applicant is out of danger and his condition is not life-threatening. On the other hand, the affidavit of Dr Ncedo Ndlovu provides details about applicant’s health condition. In the light of Dr Ncedo Ndlovu’s affidavit, this court finds that the health condition of the applicant is worsening, and such worsening condition is indeed a new fact as contemplated by section 116 of the Criminal Procedure and Evidence Act. The only issue to be decided is whether this new fact has changed the basis on which bail was initially refused. See:S v De Villiers 1996 (2) SACR 122 (T) at 126 e-f. The applicant has an onus to show that indeed this new fact warrants a reconsideration of the first ruling refusing him bail.

Dr Ncedo Ndlovu in her affidavit suggests that applicant requires surgery which cannot be done at prison. I take the view that applicant does not need to be admitted to bail, for surgery to be done outside prison. It can still be done outside prison, while he remains in custody. The law provides an answer to this issue, section 74 (1) of the Prisons Act [Chapter 7:11] is the answer. It provides that in the case of serious illness of a prisoner, the officer in charge, on the advice of the medical officer, may make an order for the removal of such prisoner to a hospital, but in case of emergency or in the absence of the medical officer such removal may be ordered by the officer in charge. The law vests the decision to remove a prisoner to a hospital to the officer in charge mero motu or on the advice of a medical officer. This court cannot, in the first instance usurp the functions of the officer in charge, and admit applicant to bail for the purposes of being treated in a hospital. This issue, is in the first instance, in the province of the officer in charge of prison. This court must keep to its lane. This is the principle of deference, i.e. the judicial willingness to appreciate the legitimate and legislatively ordained province of administrative authorities.See: Bato Star Fishing (Pty) v Minister of Environment Affairs 2004 4 SA 490 (CC).

Applicant will have to accept, that the decision in relation to his treatment, is in the first instance, in the hands of the prison medical officer and the officer in charge.  These are inevitable consequence of incarceration.  On the facts of this case, applicant’s worsening health condition is not a factor which would warrant his release on bail. The applicant has been deprived of his personal liberty according to procedures established by law.  His worsening health condition is not a circumstance which would sway the pendulum in favour of his release, and as such this new fact did not change the basis upon which bail was refused.

It is apparent from case law that the nature of the crimes committed and the strength of the state’s case are extremely relevant during bail applications. The allegations against applicant are very serious in nature.  It would not be in the interest of justice to release the applicants on bail.  As borne out by the record, the applicant was denied bail because this court found that the state has a strong prima facie case against him and his accomplices. The applicant and his accomplices are facing a serious charge of armed robbery involving the use of firearms by members of the army and in uniform. If convicted, they are most likely going to be sentenced to lengthy custodial terms, thus they will be tempted to abscond and not stand trial. I take the view that the changed circumstances do not warrant the release of the applicant on bail without comprising the reasons for the initial refusal of his bail application. See: Daniel Range v SHB 127/04.

Having given due consideration to all the relevant factors and the laws and not withstanding that there is indeed a new fact, this court is convinced that this new fact  has not changed the basis upon which bail was initially refused. It will not be in the interest of justice to let the applicant out on bail based on this new fact.

Disposition

In the result, I order as follows: the application for bail is refused and applicant shall remain in custody.

Pundu and Company, applicant’s legal practitioners

Prosecutor-General’s Office, respondent’s legal practitioners