Mqhelisi Sibanda v The State

### Preamble
1
HB 192.19
HCB 195/19
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MQHELISI SIBANDA

Versus

THE STATE

IN THE HIGH COURT OF ZIMBABWE

TAKUVA J

BULAWAYO 2 AUGUST & 12 DECEMBER 2019

Bail Application

B Ncube, for the applicant

K Jaravaza, for the respondent

TAKUVA J:		This is an application for bail pending trial.  After hearing the application I dismissed it on 2 August 2019.  On 27 August 2019 applicant’s legal practitioners addressed a letter to the Registrar of this court requesting that they be furnished with written reasons for the refusal of bail.

These are they.

The applicant faces a murder charge as defined in section 47 (1) of the Criminal Law (Codification and Reform) Act (Chapter 9:23).  The allegations are that the applicant murdered Soneni Mpofu by strangling her and stabbing her once on the left eye and once on the vagina.

Background

On 25 May 2019, the applicant and the deceased Soneni Mpofu were drinking beer together at Njula Sports Bar in Gwanda town.  They later left the bar at approximately 2300 hours proceeding to Limelite Sports Bar where they continued drinking beer.  At approximately 0200 hours, the two left Limelite in a taxi and proceeded to deceased’s residence at 1018 Phakama.  Applicant had hired the services of the deceased who was a commercial sex worker.  The two were to spend the night together at Soneni’s residence.  During the night, the applicant allegedly murdered Soneni Mpofu by strangling her and stabbing her once on the eye and once on the vagina.  The applicant then locked the deceased inside her bedroom and went away with the key.  The deceased’s body was discovered on the 25th day of May 2019 by Preety Baloyi who was also a tenant and deceased’s friend at 1018 Phakama, Gwanda.  Applicant was arrested on 23rd June 2019 and remanded in custody hence this application.

In his application, applicant contended that this application is “activated by S. 50 (1) ((d) of the Constitution.” The section provides that “50 RIGHTS OF ARRESTED AND DETAINED PERSONS.”

(1) 	Any person who is arrested -

(a)	……….

(b)	………

(c)	………

(d)	must be released unconditionally or on reasonable conditions, pending a charge or trial, unless there are compelling reasons justifying their continued detention; and

(e)	……..”

Applicant contented that in casu there are no compelling reasons in that he does not even know the commercial sex workers who are State witnesses and would therefore not interfere with them.  In any event, so the argument goes if he had wanted to interfere with those witnesses he could have done so during the period 25 May and 23 June 2019.  Applicant also refuted the allegation that if released on bail he would destroy the murder weapon.  Further applicant submitted that it is trite that the seriousness of the offence on its own is not a ground that may be used to deny the applicant bail.  Applicant also relied on the presumption of innocence as provided for in S. 70 (1) (a) of the Constitution of Zimbabwe and the principle in S v Magamba 2004 (1) ZLR 367 and S v Biti 2002 (1) ZLR 115 H.

As regards the risk of abscondment, applicant scoffed at the State’s contention that it had a strong prima facie case against him describing it as based purely on speculation since there is no eye witness to the strangulation and stabbing.  He maintained that he has a very strong defence in that on the day in question, he did not hire the services of a commercial sex worker and he was not drinking beer in the company of the deceased.  He last saw deceased disembarking opposite Cry Matengwane Sports Bar on his way to his home area in Matshetsheni.

The state opposed the application on the grounds that:-

the applicant is facing a very serious offence where if convicted he will face a lengthy period of imprisonment.  This might tempt the applicant to abscond.

the state has a strong prima facie case against the applicant as to present a temptation for him to abscond.

despite being informed of this strong prima facie case the applicant has not placed before the court such information as would tend to establish his innocence.

While it is trite that in terms of S. 50 (1) (d) of the Constitution of Zimbabwe bail is a right unless the state can provide cogent and compelling reasons as to why an accused  person should be kept in custody, this provision must be read together with section 117 of the Criminal Procedure and Evidence Act Chapter 9:23 which states;

“117 ETITLEMENT TO BAIL

Subject to this section and section 32 a person who is in custody in respect of an offence shall be entitled to be released on bail at any time after he or she has appeared in court on a charge and before sentence is imposed unless the court finds that it is in the interests of justice that he or she should be detained in custody,

(2)	The refusal to grant bail and the 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

(ii)	not stand his or her trial or appear to receive sentence or

attempt to influence or intimidate witnesses or to conceal or destroy evidence; or

undermine or jeopardize the objectIVES or proper functioning of the criminal justice system, including the bail system;

or

(b)	…..

(3)	In considering whether the ground referred to in –

(a)	……

(b)	subsection (2) (a) (ii) has been established, the court shall take into account –

(i)	the ties of the accused to the place of trial;

(ii)	the existence and location of assets held by the accused;

(iii)	the accused’s means of travel and his or her possession of or access to travel documents;

(iv)	the nature and gravity of the offence or the nature and gravity of the likely penalty therefore;

the strength of the case for the prosecution and the corresponding incentive of the accused to flee;

the efficacy of the amount or nature of the bail and enforceability of any bail conditions;

(vii)	any other factor which in the opinion of the court should be taken into account;

(c)	…….

(d)	……..

(e)	……..

(4)	In considering any question in subsection 2, the court shall decide the matter by weighing the interests of justice against the right of the accused to his or personal freedom and in particular the prejudice he or she is likely to suffer if he or she were to be detained in custody taking into account, where applicable, the following factors, namely –

(a)	the period for which the accused has already been in custody since his or her arrest;

(b)	the probable period of detention until the disposal or conclusion of the trial if the accused is not released on bail;

(c)	……

(d)	……

(e)	……

(f)	…….” (my emphasis)

Applying the law to the facts in casu, and take the view that the State has a strong case against the applicant.  While it is true that there is no eye-witness to the murder, it is clear from the State’s witness one Pretty Baloyi who was deceased’s landlord that the applicant and the deceased arrived home around 0200 hours aboard a taxi.  Earlier in the evening the witness had seen applicant and deceased drinking beer together at Njula Sports Bar and Limelite Nignt Club.  The witness went home leaving applicant and deceased at Limelite Night Club.  Later she saw the two disembarking from a taxi and entered the house.  She talked to both of them in the lounge which was lit.  The applicant d and deceased entered deceased’s room and locked the door from inside.  The witness went to bed.  The next morning the witness knocked at the deceased’s door but there was no response.  She suspected deceased could have gone to her rural home.  After 2 days she smelt an unusual scent from the deceased’s room.  She alerted a friend and neighbor one Sibongile Phiri and the 2 broke a window pane and peeped into the room.  They then saw deceased’s lifeless body on her bed in an advanced state of decomposition.  When the police officers attended the scene, it was discovered that the key to the door and deceased’s cellphone were missing.

Upon applicant’s arrest, this witness was able to identify him as well as the clothes he wore on the night in question.  This evidence in my view shows that Pretty Baloyi saw the deceased for the last time alive in the company of the applicant.  From the totality of the circumstantial evidence, the only reasonable inference is that it is indeed the accused who murdered the deceased.  The accused’s defence is weak in that it does not take into account Pretty Baloyi’s evidence.  He has simply provided a bald denial of the fact that he entered deceased’s room after hiring her services.

As regards the nature and gravity of the offence, there is no doubt that murder is a very serious crime.  In casu the murder was gruesome in that the deceased was stabbed on the eye and on her vagina in addition to her being strangled.  Upon conviction which is highly possible, the applicant will receive a lengthy custodial sentence.  This might tempt him to abscond.  I find for these reasons that the applicant is a flight risk who is not a good candidate for bail at all.  There are indeed compelling reasons justifying applicant’s continued detention.

Accordingly, and for all the foregoing reasons, the application for bail pending trial is hereby dismissed.

Mlweli Ndlovu & Associates, applicant’s legal practitioners

National Prosecuting Authority, respondent’s legal practitioners