Thando Chinara v The State

### Preamble
1
HB 126/20
HCB 182/20
THANDO CHINARA
Versus
THE STATE
IN THE HIGH COURT OF ZIMBABWE
KABASA J
BULAWAYO 15 and 25 JUNE 2020
Bail application
A. Ndlovu for the applicant
K. Jaravaza for the respondent
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While it is the right of any accused person to be admitted to bail pending trial, such right does not operate in a vacuum.  The applicant in an application for bail must demonstrate that the granting of bail will not compromise the due administration of justice.  The accused bears no onus to prove innocence, but must put forward a defence which is reasonably possibly true.”

The appellant’s defence amounts to a bare denial when looked at in light of the allegations against him.  The circumstances surrounding the commission of the offence, the attempt to flee and the subsequent apprehension by members of the public juxtaposed with the claim of having been an innocent passenger in that Honda Fit explains why the court a quo found this to be tantamount to a bare denial.

The court a quo did not misinterpret the law or legal principles. Section 50 (1) (d) of the Constitution espouse the right to be released either unconditionally or on reasonable conditions thereby underscoring the right to liberty which is the bedrock of the presumption of innocence.

However, that right is not an absolute right and that is why the Constitution qualifies it by the inclusion of:

“… unless there are compelling reasons justifying their continued detention.”

A threat to the proper and orderly administration of justice qualifies as one such compelling reason and this is what the court a quo addressed in arriving at the decision to deny bail.

This court cannot and ought not to interfere with that exercise of discretion just because it can but should do so only when it must in order to address a misdirection.  When an appeal court interferes with the exercise of discretion only because it can, all that such appeal court is doing is substitute its own discretion for the court a quo’s. That is not how it should be.

However, where there is a  misdirection in the exercise of discretion by the court a quo the interference by the Appeal Court graduates from being a mere substitution of discretion to a MUST  in order to correct an irregularity.

Having found no misdirection to vitiate the court a quo’s decision, this court has no basis to interfere with that decision.

In the result the appeal against the court a quo’s decision to deny the appellant bail be and is hereby dismissed.

Dube  & Associates, applicant’s legal practitioners

National Prosecuting Authority, respondent’s legal practitioners