Tashinga Rufaro Edward Musonza v The State

### Preamble
1
HB 33/19
HCB 43/19
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TASHINGA RUFARO EDWARD MUSONZA

Versus

THE STATE

IN THE HIGH COURT OF ZIMBABWE

MAKONESE J

BULAWAYO 1 & 14 MARCH 2019

J. Makiya for the applicant

N.Ndlovu for the respondent

Bail Application

MAKONESE J:	The applicant is employed by the Air Force of Zimbabwe as a pilot and is based at Josiah Tungamirai Airbase at Gweru.  He is aged 29 years.  He is facing a charge of murder.  He denies the allegation.  The deceased, Lucy Duve was a legal practitioner during her lifetime.  She was employed by a local Non- Governmental Organisation.  She was aged 32 years at the time of her demise.  The applicant has filed an application for bail pending his trial.  The state is opposed to the granting of bail.  The applicant first appeared at Gweru High Court Circuit on the 28th February 2019 for trial.  The applicant raised a notice of preliminary objection seeking referral of a constitutional issue to the Constitutional Court.  The judge referred the matter to this court at Bulawayo, for the purpose of dealing with that application.  On the 26th February 2019, the applicant appeared for his trial before MOYO J.  Applicant filed a notice indicating that it was his intention to challenge the composition of the court, particularly that there was no provision in the Constitution of Zimbabwe, for assessors to sit on the High Court Bench in criminal trials.  The presiding judge directed that a proper application for referral should be filed within a period of 14 days from the date of the order.

Factual background

It is necessary to set out in brief the facts giving rise to this murder charge.  It has become customary for applicants seeking bail pending trial to simply repeat the legal principles that govern the granting or refusal of bail. The applicable legal requirements are now well established by the courts.  While a bail application is not a trial, it is necessary for an applicant to set out in some reasonable detail the basis of his defence.  The court may only be in a position to determine whether or not the applicant is entitled to release on bail after taking into proper consideration, the circumstances giving rise to the charge, the accused’s defence, as well as the legal principles applicable.

In this matter, the bulk of the facts are common cause and are not in dispute.  The accused and the deceased were in a love relationship.  On the fateful day the deceased was at her residence at 16 Acacia Road, Windsor Park, Gweru.  The deceased was also at that residence when a misunderstanding arose.  The accused was accusing the deceased of being in love with his workmate and friend.  The accused severely assaulted the deceased.  She was forced to leave the house naked.  The accused followed the deceased outside the gate and pulled her back into the house.  The accused drove a Toyota Allion motor vehicle to Josiah Tungamirai Airbase with deceased, where he woke up one George Himalaya Makwenjere whom he was accusing of having an affair with the deceased.  The accused pulled the deceased out of the motor vehicle and continued with the assaults.  The deceased tried to escape by leaving the car screaming out for help.  The accused chased after the deceased and got hold of her before she could go far.  The accused kicked the deceased in the chest area   and the head several times, whilst the deceased lay on the ground.  Makwenjere tried to restrain the accused from further assaults but failed.  He went to seek assistance.  When he returned to the scene he found the deceased seated in the passenger seat breathing with some difficulty.  The accused refused to immediately take the deceased to hospital and instead drove around with the injured deceased.  He drove to Nokuthula Matsikiti’s residence in Windsor Park, Gweru.   Accused drove back with deceased to Josiah Tungamirai Airbase, where efforts were made to have deceased attended at the Airbase but to no avail.  The deceased was later taken to Claybank Hospital in Gweru by Tawanda Jackson Munyari.  The deceased was pronounced dead upon arrival at Claybank Hospital.  The matter was reported to the police leading o the arrest of the accused.  The deceased’s remains were taken to United Bulawayo Hospital for a post mortem report.  The pathologist concluded that the cause of death was:

Extensive subarachnoid haemorrhage

Skull fracture

Severe assault

In support of his application for bail, the applicant avers that he was in love with the deceased and that a number of issues occurred in the relationship which upset him.  Further, he was drunk on the day in question and that indeed a misunderstanding between him and the deceased emerged.  The misunderstanding degenerated into a brawl.  The applicant avers that deceased had attacked him using a bottle and that he was acting in self defence.  He suggested that deceased sustained a cut on the heard after falling on a glass table.  The applicant contends that this is how the deceased might have sustained the fatal injuries that led to her death.

The applicable law

This court has had occasion to set out the principles that should guide a court in determining an application for bail.  In the case of Aitken & Anor v Attorney General 1992, ZLR 249 (S) the Supreme Court reviewed a long list of cases and laying out the guiding principles for determination of bail applications.  When dealing with the issue of bail pending trial the court has to strike a balance between the liberty of the accused and those of the proper administration of justice.  The court must be satisfied that the granting of bail to the applicant will not compromise the due administration of justice.

This court is aware that all arrested persons should in terms of the Constitution be released on bail unless there are compelling reasons to deny bail.  The court takes into cognizance that an accused person is entitled to the presumption of innocence.  The court must, however take into consideration the facts surrounding the commission of the offence, as well as the defence raised by the accused to assess whether in the interests of justice, it is appropriate to release the applicant on bail pending trial.  It is now trite, that where the evidence against an applicant is overwhelming, the risk of abscondment is high.  The granting of bail is always in the discretion of the court.  The court is aware that the applicant does not deny assaulting the deceased.  The court observes that the applicant’s defence is at variance with the cause of death recorded in the post mortem report.  The question that arises is why the applicant seeks to mislead this court on the cause of death?  The post mortem indicates clearly that the deceased sustained a skull fracture and subarachnoid haemorhage.  It is my view, that an applicant in a bail application who seeks to mislead the court is not a suitable candidate for bail.

In ;  S v Jongwe SC-62-07 the learned CHIDYAUSIKU (CJ) stated as follows:

“In judging this risk the court ascribes to the accused the ordinary motives and fears that sway human nature.  Accordingly, it is guided by the character changes and the penalties which in all probability would be imposed if convicted. ; the sought of the state case; the ability to flee to a foreign country and the absence of extradition facilities, the past response to being released on bail; and the assurance given that it is intended to stand trial”.

The applicant relies heavily on the provisions of section 50 (1) (d) of the Constitution of Zimbabwe (Amend) No. 20, 2013.  This provision emphasizes that any person who is arrested must be released immediately or on reasonable conditions pending trial, unless there are compelling circumstances.  It is clear, however, that the critical factors in determining an application for bail are the nature of the charges and the severity of the punishment likely to be imposed upon conviction and the apparent strength of the state case.  There can be no dispute that applicant brutally assaulted the deceased leading to her death.  The applicant has raised his defence as he must, but it is this court’s view that the state case is strong.  The state has on two occasions provided trial dates and the applicant has avoided trial by raising preliminary objections premised on the constitutionality of having assessors on the High Court Bench.  That application is not before me and I shall not comment on it.  I note, however that the applicant does not seem to have the appetite to proceed to trial.  The interests of justice are paramount.  There are compelling reasons in this matter of ensuring that the applicant does not abscond to avoid trial.  In the exercise of my judicial discretion, I hold the view that the granting of bail would compromise the administration of justice.  The applicant may be tempted to abscond if granted bail.  The applicant is well aware that if convicted, a lengthy prison sentence is inevitable.  That on its own is sufficient inducement for the applicant to abscond.

In the circumstances, accordingly the application is hereby dismissed.

Messrs Makiya & Partners, applicant’s legal practitioners

National Prosecuting Authority, respondent’s legal practitioners