Tawana Paul Clifford Ngwenya v The State

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HB 65/21
HCB 84/21
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TAWANA PAUL CLIFFORD NGWENYA

Versus

THE STATE

IN THE HIGH COURT OF ZIMBABWE

KABASA J

BULAWAYO 25 MARCH 2021

Bail Pending Trial

Applicant in person

B Gundani, for the respondent

KABASA J:	This is an application for bail pending trial.  After the matter was argued I handed down an ex tempore judgment and dismissed the application.

The parties have not requested for written reasons but I decided to avail them nonetheless.

The applicant is 20 years old.  He was staying with his father at the relevant time.  The deceased was also residing at the same residence as a ‘caretaker’, looking after her cousin’s house.  The applicant’s father was a gardener at that house.

On 11th June 2020 the applicant was arrested in Harare on allegations that he had murdered the deceased.  It is alleged on 29th May 2020 the applicant used an iron bar to strike the deceased on her head before slitting her throat with a knife.  He then bought a 200 litre plastic drum and 25 litres of hydrochloric acid which he poured into the drum before throwing the deceased’s body therein.  The deceased’s body was discovered on 10th June 2020 and a postmortem conducted by Doctor Pesanai established the cause of death as depressed skull fracture as a result of blunt force to the head.

Following his arrest the applicant led to the recovery of the iron bar which was allegedly used in the murder and a knife allegedly used to slit the deceased’s throat. An assortment of the   deceased’s clothes was also recovered from him.  One Cassy Chivako was subsequently arrested after he was implicated by the applicant.  A hacksaw used to pry open the lid of the 200 litre drum was later recovered following indications made by Cassy Chivako who is 17 years old and was granted bail.  Cassy’s circumstances can be distinguished from the applicant’s. This is so because Cassy is a juvenile who was arrested after being implicated by the applicant. He was also arrested at his home as he never absconded. There is therefore a basis for treating the two differently without this being considered as discriminatory.

In his bail application the applicant denied committing the murder.  His explanation was that the deceased wanted to entertain her boyfriend and asked him to give her space.  He went to Harare in order to afford the deceased the privacy she needed.  The deceased then gave him her clothes which he was to give to his mother with instructions for the mother to sell them on the deceased’s behalf.  When he left Bulawayo the deceased was alive and was in the company of her boyfriend.

Bail was opposed on 2 grounds: viz

The applicant fled after the commission of the offence and was therefore a flight risk.

The applicant’s father is a key witness and the applicant is likely to interfere with the witness.

At the hearing of the application it was established that the applicant’s father has since lost his job and the chances of the applicant interacting with his father are slim.  The second ground for opposing bail therefore fell away.

Is the applicant a flight risk?  In considering applications of this nature the court must be alive to the fact that the presumption of innocence operates in favor of the applicant.

The Supreme Court emphasized this point in Ncube v State 2000 (2) ZLR 556 (S).  It is for this reason that a judicial officer should grant bail unless there are compelling reasons not to.

The court is faced with two competing interests: the liberty of the individual and the proper administration of justice.

In State v Biti 2002 (1) ZLR 115 (H) the court stated that bail should always be granted where possible unless the interests of justice demand otherwise.

It follows therefore that unless there are compelling reasons an individual must be allowed to prepare for and attend their trial whilst coming from home.

Section 50 (1) (d) of the Constitution provides that, unless there are compelling reasons, any person who is arrested must be released unconditionally or on reasonable conditions.

Section 115C of the Criminal Procedure and Evidence Act, Chapter 9:07 provides that:-

(1) “In any application, petition, motion, appeal, review or other proceeding before a court in which the grant or denial of bail or the legality of the grant or denial of bail is in issue, the grounds specified in section 117 (2) being grounds upon which a court may find that it is in the interests of justice that an accused should be detained in custody until he or she is dealt with in accordance with the law, are to be considered as compelling reasons for the denial of bail by a court.”

Section 117 (2) gives some of the compelling reasons as, where there is likelihood that the accused, if she or he were to be released on bail:

Section 117 (2) (a) “(i) …

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

In casu the state has expressed the fear that the applicant if released on bail will not stand trial.  Is this fear well grounded?

In State v Hussey 1991 (2) ZLR 187 (S) the Supreme Court stated that the state must not make bald unsubstantiated assertions when proffering the grounds upon which it relies on in opposing bail.

The fear of abscondment must be demonstrated with cogent reasons and not mere say-so by the state.

In casu there is no dispute the offence was committed in Bulawayo, allegedly by the applicant.  There is also no dispute the applicant was employed in Bulawayo and that is why he was staying with his father.  It is equally not disputed that he was arrested in Harare.

The question therefore is, for a person who had every reason to be in Bulawayo by virtue of his employment, why was he in Harare at the time of his arrest?

In his well articulated application for bail the applicant explained that he had decided to go to Harare so as to allow the deceased some privacy and to also take her clothes to his mother so she could sell them on the deceased’s behalf.  This explanation was meant to controvert the state’s assertion that he fled to Harare.

At the hearing of the application however the applicant told the court that his employer wanted to send him for a digital marketing course at Tel-One and he therefore needed to go to Harare to collect his results.  One surmises that these results were needed to enable him to register for that course.

This reason is completely at variance to the reason given in the applicant’s application.  I must say the applicant appeared not to recall what he had said in that written application and this became very evident as he forgot the reason he had given for being in Harare.  What does this say of the applicant?  It shows he was not being candid with the court and was not taking the court into his confidence.

If in his application he said the deceased was alive and is the one who was behind his going to Harare, it can be inferred that since the deceased allegedly died on 29th May 2020, the applicant’s decision to leave the premises was not on account of deceased’s request for privacy as the deceased required no privacy. She had already met her death before the applicant went to Harare.

Whilst the presumption of innocence operates in favour of the applicant, the strength of the state’s case cannot be ignored in light of the fact that the applicant was not being honest as to the reason he went to Harare.

The state’s fears are therefore well grounded.  I have already touched on the recovery of the deceased’s clothes from the applicant, the recovery of the murder weapons and the identification of the places where the 200 litre drum and the 25 litres of hydrochloric acid were purchased.

The state has a strong prima facie case against the applicant and that being so the inducement to flee is there.  Should the applicant be convicted he will most probably be saved the ultimate penalty of death by his age.  He however is unlikely to escape a lengthy term of imprisonment.

The applicant’s assurances that he will stand trial sound hollow regard being had to the fact that he was not honest on the reason why he decided to leave Bulawayo and was only arrested in Harare.

In State v Jongwe 2002 (2) ZLR 209 (S) CHIDYAUSIKU CJ enumerated factors to be considered in assessing the risk of an applicant for bail absconding before trial.  Whilst in casu there is no issue of “past response to being released on bail,” the following factors weigh against the applicant:

The character of the charges and the penalties which in all probability would be imposed if convicted.

The strength of the state case.

The assurance given that it is intended to stand trial.

The applicant might not be a holder of a travel document but how often has that proved to be no bar to an individual who is determined to leave the country?  Not being a holder of a travel document on its own is no reason to conclude that an applicant for bail will not abscond and go beyond the country’s borders. He was staying in Bulawayo with his father and now that the father has lost his job the applicant does not have a place to stay in Bulawayo. He is supposed to be appearing at the Bulawayo Magistrates Court until his indictment for trial. There are no guarantees that he will avail himself and stand trial.

The applicant is not, in my considered view, a proper candidate for bail.

It is for the foregoing reasons that I was unable to accede to his application for bail pending trial and accordingly dismissed it.

National Prosecuting Authority, respondent’s legal practitioners