Wonder Sibanda v The State

### Preamble

1

HB 60/21

HCB 80/21

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WONDER SIBANDA

Versus

THE STATE

IN THE HIGH COURT OF ZIMBABWE

DUBE-BANDA J

BULAWAYO 26 MARCH 2021 & 1 APRIL 2021

Application for bail pending finalization of trial

Applicant in person

B. Gundani for the respondent

DUBE-BANDA J: This is an application for bail pending the finalisation of trial. Applicant is being charged with the crime of contravening section 60 A (3a) (b) of the Electricity Act [Chapter 13:19] i.e. to cut, damage, destroy or interfere with any apparatus used for generation, transmission, distribution or supply of electricity. The allegations are that on the 23rd March 2020, during the night and at a bushy area along Mzingwani Road, stretching to Alwyn Road, Hope Fountain, Bulawayo, applicant unlawfully and intentionally cut, damaged, destroyed or interfered with any apparatus or material used in connection, distribution or supply of electricity. He damaged overhead copper conductors weighing 266 kilograms belonging to the Zimbabwe Electricity Transmission Company. Applicant is alleged to have committed this crime in the company of two accomplices, who have since been convicted and each sentenced to ten (10) years imprisonment.

In support of the application, applicant has placed the following facts before this court: he is 33 years old; the trial has already commenced and two witnesses have testified for the prosecution; none of the witnesses linked him to the commission of the offence; the state’s case is weak; the trial is unable to continue to finalisation because of the Covid 19 induced lockdown; borders are closed, which reduces the risk of absconding; he is a permanent resident of Zimbabwe; he is of fixed abode; he will not interfere with witnesses; it is not in the interests of justice to refuse to release him on bail. In his oral submissions, applicant averred that he was arrested on 6 September 2020; the trial commenced on 20 December 2020; the witnesses who have testified exonerated him from the commission of the offence; and the trial court advised him to make his application before this court. In the main, he repeated what is contained in his bail statement.

This application is opposed. In the main, the opposition is anchored on the following grounds:

The trial is at defence stage. The fact that the applicant has heard all the evidence implicating him in the matter places him in a position to assess his chances of success or failure. This might induce him to abscond.

The applicant has a pending case of stock theft at West Commonage Magistrates Court CRB number W/C 577 – 80/20.

Mr Gundani, counsel for the respondent, in his oral submissions abandoned the second ground of opposition, i.e. of a stock theft case pending. He contended that the trial of the applicant having crossed to the defence case shows that there is a prima facie case against him, and he is aware of this position, and this might induce him to abscond to evade the finalisation of the trial.

Section 117(3)(b) of the Criminal Procedure and Evidence Act, says in considering whether the ground referred to in subsection (2)(a)(ii) (not stand his or her trial or appear to receive sentence) has been established, the court shall take into account; the ties of the accused to the place of trial; the existence and location of assets held by the accused; the accused’s means of travel and his or her possession of or access to travel documents; 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; any other factor which in the opinion of the court should be taken into account.

It has repeatedly been held that in assessing the risk of flight, courts must take into account not only the strength of the case for the prosecution and the probability of a conviction, but also the seriousness of the offence charged and the concomitant likelihood of a severe sentence. The obvious reason of this approach is that the expectation of a substantial sentence of imprisonment would undoubtedly provide an incentive to the applicant to abscond. In S v Nichas1977 (1) SA 257 (C) 263G-H, the court said, if there is a likelihood of heavy sentences being imposed the accused will be tempted to abscond. In S v Hudson 1980 (4) SA 145 (D) 164H, the court held that the expectation of a substantial sentence of imprisonment would undoubtedly provide incentive to the accused to abscond and leave the country. In S v C 1995 SACR 639 (C) 640H, it was said that whilst the possibility of absconding is always a very real danger, it remains the duty of the court to weigh up carefully all the facts and circumstances pertaining to the case.

The presumption of innocence operates in favour of the applicant, even where there is a strong prima facie case against him. See: S v Essack 1965 (2) SA 161 (D) 162 C. But in determining the question of bail, too much emphasis cannot be placed upon the presumption of innocence. In S v Fourie 1973 (1) SA 100 (D) 101 (G) it was remarked as follows: “It is a fundamental principle of the administration of justice that an accused person stand trial and if there is any cognisable indication that he will not stand trial if released from custody, the court will serve the needs of justice by refusing to grant bail, even at the expense of the liberty of the accused and despite the presumption of innocence.”

In casu, the trial of the applicant is heading towards finalisation. All prosecution witnesses have since testified. Applicant was not discharged at the end of the prosecution’s case. His alleged accomplices have themselves testified for the prosecution. They have each been sentenced to ten years imprisonment. A scary sentence by any standard. I take the view that in the event of a conviction, and thereafter the certainty of a sentence of ten years imprisonment will induce the applicant to abscond if he is admitted to bail. The fear of imprisonment as a result of the looming conviction provides an incentive to abscond. Again, according to the outline of the state case, applicant was on the run from the 24th March 2020 until he was arrested on9 September 2020, a period approximating nine months. Such conduct does not assist a bail applicant.

Applicant contends that none of the witnesses linked him to the commission of the offence; in fact he says they exonerated him; the state case is weak; the trial is unable to continue to finalisation because of the Covid 19 induced lockdown. Without the record, this court is unable to find that the prosecution witnesses did not link applicant to the commission of the offence and that they in fact exonerated him. Again, I take judicial notice of the fact that Covid 19 induced lockdown has been relaxed and the courts are now operating normally, his trial may proceed to finalisation.

The cumulative effect of these facts constitutes a weighty indication that bail should not be granted. Where there is a cognisable indication that an accused person would evade his trial if released from custody, the bail court would be serving the interests of justice by refusing bail. The liberty of an accused person would, in such circumstances have to give-way to the proper administration of justice. See: S v Dial and Another 2013 (2) SACR 665 (GNP). On the facts of this case, admitting applicants to bail will undermine the objectives of bail and the criminal justice system.

Therefore, upon careful consideration of all the facts and the circumstances based on the facts and evidence before me, weighing up the interests of justice against the right of the applicant to his personal freedom and any potential prejudice because of his detention pending trail, I am satisfied that interests of justice do not permit his release from custody. There is a likelihood that he will abscond and evade continuation of his trial.

Furthermore, I take the view that the trial court is seized with the trial. It is the trial court that is better positioned to weigh and understand whether it is indeed in the interests of justice to release the appellant on bail at this stage. However, I accept that this court has jurisdiction to entertain this bail application, though I take the view, such intervention when the trial is on course, must be the exception rather than the norm. Worse still, as in this case, where this court has not been furnished with a record of proceedings from the trial court, this court must be very slow to disrupt the proceedings in the trial court. Let the trial run its course without interference from this court, unless grave injustice is likely to occur. None has been shown in this case. See: Luckson Chirwa v The State HB 121/ 20.

Disposition

In conclusion, I am satisfied that the interests of justice do not permit applicant’s release from custody. There is a likelihood that if released on bail, he will abscond and evade the continuation of his trial.

In the result, I order as follows: the application for bail is and hereby dismissed.

National Prosecuting Authority, respondent’s legal practitioners