Judgment record
Prosecutor General v Musa Taj Abdul & 2 Ors
HH 90/21HH 90/212021
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PROSECUTOR GENERAL
versus
MUSA TAJ ABDUL
and
RUDOLPH TAPIWA KANHANGA
and
GODFREY MUPAMHANGA
HIGH COURT OF ZIMBABWE
CHITAPI J
HARARE, 28 January, 2021 & 10 March, 2021
Application for committal of accused on bail into custody in terms of s 126 (1) (ii) as
read with ss (2) of Criminal Procedure & Evidence Act, [Chapter 9:07].
E. Makoto, for the applicant
C. Maheya, for the respondent
CHITAPI J: Applications such as the one before me are quite rare. The applicant is
the Prosecutor General. He is aggrieved by the decision of this Court, per CHIKOWERO J in
case no. B 2202/20 made on 11 December, 2020 wherein the respondent herein, Musa Taj
Abdul was admitted to bail by the learned Judge. The Prosecutor General has petitioned the
Court to act in terms of the provisions of s 126 of the Criminal Procedure & Evidence Act
[Chapter 9:07] which provide as follow-
“126 Alteration of recognisances or committal of person on bail to prison
(1) Any judge or magistrate who has granted bail to a person in terms of this part, may if he
is of the opinion that it is necessary or advisable in the interests of justice that the
conditions of a recognisance entered into by that person should be altered or added to or
that person should be committed to prison, order that the said conditions be altered or
added to or commit the person to prison, as the case may be:
Provided that –
(i) If the judge or magistrate who granted bail is not available, any other judge or
magistrate, as the case may be, may act in terms of this subs.
(ii) A judge or magistrate shall not act in terms of this subs unless facts which were not
before the judge or magistrate who granted bail are brought to his attention.
(2) In order to secure the presence before him of a person for purposes of acting in terms so
subs (1), the judge or magistrate may issue a warrant for the arrest of the person and
thereafter subs (1) shall apply
(3) The provisions of section thirty five shall apply, mutatis mutandis in respect of a warrant
issued in terms of subs (2).”
The background facts to this application may be briefly stated as that, the respondent
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appeared before the magistrate at Harare on 28 August, 2020 on initial remand. He was
facing allegations of having committed, together with his accomplices, the offences of
“Armed” robbery as defined in s 126 of the Criminal Law (Codification and Reform) Act,
[Chapter 9:23] and secondly, Unlawful Possession of a Fire-arm and thirdly Murder. I have
highlighted the word “Armed” herein purposefully in order to comment on the impropriety of
using the word to describe the offence charged. There is no reference to an offence called
“armed robbery” in the Criminal Law (Codification & Reform) Act. S 126 aforesaid creates
the offence of robbery and defines it. The differentiation in the type of robbery is the
distinction provided for in subs (3) of s 126 where a robbery is described as having been
committed in aggravating circumstances if it is proved that in the course of the commission
of the robbery, the accused or his accomplice
“(a) possessed a fire arm or a dangerous weapon; or; (b) inflicted or threatened to inflict
serious bodily injury upon any person; or
(c) killed a person.”
Where the accused has committed the robbery in circumstances listed above, the
offence does not become “armed” robbery but should aptly be described as robbery
committed in aggravating circumstance. The details of the commission of the offence as well
as the details of the aggravating circumstance (s) must be specified in the charge. It is
important to properly specify and give sufficient detail of the charge in order that the accused
is properly informed of the same. The accused can then respond to the charge in the full
knowledge and appreciation of the offence charged. The accused person has in terms of s 70
(1) (b) of the Constitution a right to be “informed promptly of the charge in sufficient detail to
enable them to answer it.” It is therefore important to avoid structuring a charge in words which
are inconsistent with the description of the charge as set out in the Criminal Law
(Codification & Reform) Act. S 146 of the Criminal Procedure & Evidence Act, [Chapter
9:07] is instructive in relation to providing for essentials which must be alleged in the charge.
In particular para (a) of subs (2) of s 146 provides that for statutory offences, “the description
of any offence in the words of any enactment creating the offence, or in similar words, shall be
sufficient…” My comments on the appropriate manner to describe the charge of robbery does
not affect the application as there was no prejudice to the applicant either alleged or apparent
arising from a wrong description of the charge. I make the comments for posterity because it
is part of the judges duties to comment on and correct Magistrates Court proceedings so that
quality proceedings are ensured.
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The digression on the framing of a robbery charge aside, the details of the allegations
on which the respondent and his accomplices were placed on remand related to four counts of
Robbery, Unlawful Possession of a Fire-arm and Murder wherein it was alleged that they
robbed different complaints between April 2019 and October, 2019 and stole various items of
property using fire-arm to induce complainants submissions. It is not necessary to go into the
minute details of the commission of the robberies because the issue which arises for
determination as will become apparent is not reliant upon the resolution of the circumstances
of the robberies.
The pertinent development which followed the remand of the respondent is that the
respondent filed a bail application pending trial in this Court on 30 November, 2020 under
case no. 2083/20. I have noted that for reasons not explained or apparent form the record, the
application in its heading listed six CRBs being HREP 7664/20; 7659/20; 7651/20; 8552/20;
7660/20; 7671/20. I have remarked that the reasons for consolidating the various Court
records are not apparent because the bail application did not deal with the CRBs individually.
This remains an observation which again does not directly impact on the issue for
determination. It suffices for purposes of this application that the application of the
respondent was consolidated with the one for Rudolph Tapiwa Kanhanga, case no. B2082/20
filed on 30 November, 2020. By way of a passing observation the same legal practitioner for
the respondent represented Rudolph Tapiwa Kanhanga. The application again for reasons not
alleged cited the case numbers to which Rudolph Tapiwa Manhanga’s application related as
CRB HREP 7676/20; 8355/20; and 7653/20. The applicant Rudolph Tapiwa Kanhanga’s
application did not deal with each of the CRBs separately in the filed papers. I again do not
find the observation I have made though curious as impacting on the issue I must determine
save that it constitutes part of the background facts which I must record.
The record shows that the State as respondent filed a bail response prepared by the
Prosecutor General’s representative Mr T. Kasema on 8 December, 2020. The response
related to applications by the respondent, by Rudolph Tapiwa Kanhanga and by one Godfrey
Mupamhanga whose application was not attached to the applicant’s papers filed of record in
this application. That observation aside, I consider it advised to reproduce the response by Mr
Kasema. It read as follow;
“RESPONSE TO BAIL APPLICATION
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1. The applicants are facing a charges of Robbery as defined in s 126 of the Criminal Law
(Codification and Reform) Act [Chapter 9:23] as morefully appears on the form 242’s
attached to their applicants filed of record.
2. Applicants have now approached this Honourable Court seeking to be admitted to bail
pending trial.
3. Respondent has considered the sentiments of the Investigating officers on all the three
applicants Brian Maigeta, Simbarashe Maruziva and Ronald Musekiwa for the allegations
of the first applicant.
4. Also considered for the second applicant are the affidavits or Ronald Musekiwa, Persuade
Chikwanha and Brian Maigeta and Persuade Chikwanha and Ronald Musekiwas in
respect of the third applicant.
5. Respondent has considered the provisions of s 117 (2) and 115 (c) of the Criminal
Procedure and Evidence Act [Chapter 9:07] as well as s 50 (1) (d) and 70 (1) (a) of the
Constitution.
6. Respondent has also considered the case of (which has been cited by the applicants in
their applications)
S v Benator 1985 (2) ZLR 205 wherein SANSOLE J reiterated that
“In striking a balance between the liberty of the subject and the proper administration of
justice, the imposition of conditions in an application for bail can be decisive. Where bail
can be granted subject to safeguarding conditions the Court should if possible lean in
favour of doing so.”
7. Applicants claim they are of fixed abode an averment which is not denied save to say in
respect of accused 1 he is not resident within the jurisdiction of the Court as noted from
the form 242,s prepared by the police.
8. Should the Honourable Court be inclined to admit the applicants Bail the applicants can
be ordered not to interfere with witnesses’ thus minimising chances of interference.
9. Respondent is of the considered view after careful consideration of the applicants’
defences if a further condition that they all report three times a week at their respective
Police Stations it may meet the justice of the case. Respondent is alive to the fact that the
allegations the applicants stand charged with are very serious by any measure as well as
that the applicants have the presumption of innocence on their side which has to be
weighed against the provisions of s 115 (c ) of the Criminal Procedure and Evidence Act
[Chapter 9:07].
Wherefore if part of the concession made is found to have been properly made and the
Court finds favour with same. The honourable Court may proceed to grant applicants bail
in terms of the proposed conditions with an amendment to their reporting conditions.
DATED AT HARARE THIS 8TH DAY OF DECEMBER 2020”
Following on the hearing of the application on 11 December, 2021 before
CHIKOWERO J, the respondent was admitted to bail pending trial and so was the
respondent’s co-applicant, Rudolph Tapiwa Kanhanga. It is not stated in this application as to
what became of the application relating to Godfrey Mupamhanga. The details of the bail
order granted to the respondent, reads in the operative part as follows:
“WHEREUPON, after reading documents filed of record and hearing counsel
IT IS ORDERED THAT:
The applicant is admitted to bail on the following conditions:
1. He deposits RTGS$5000.00 with the Clerk of Court, Harare Magistrates Court
2. He resides at Number 12 Adams Avenue, St Martins, Harare until this matter is finalised.
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3. He reports at Sunningdale 2 Police Station every Friday between 6 a.m. and 6 p.m.
4. He does not interfere with any State witnesses.”
The bail order related to case Nos HREP CRBs 7664/20; 8252/20; 7659/20; 7660/20;
7651/20; 7651/20 and 7671/20.
It is important for purposes of this application that I comment that the above order
was granted after the learned judge had read the documents filed of record and hearing
counsel’s submissions meaning that both the applicant’s counsel submissions meaning that
both the applicant’s counsel Mr Kasema and the respondent’s counsel Ms Maheya addressed
the learned judge on the parties’ positions in the matter. The learned judge must therefore be
taken as having granted an informed decision based on the facts placed before him as
contained in documents comprising the application and additional oral submissions made by
the legal parties legal counsel. The order has not been appealed against and the order
therefore stands.
In this application, the applicant applies that the extant court order should be revisited
and the respondent be committed to prison. The applicant in other words prays for an order
revoking the bail order and committing the respondent to prison. Ordinarily, once the court
pronounces itself and passes judgment in a matter before it, the court, judge or magistrate
who has made the order becomes functus officio. The jurisdiction of that court is exhausted.
The decision made cannot be revisited by the same court save in very limited defined
circumstances. With reference to bail application judgments and orders, the court, judge or
magistrate who made the order can revisit the order under the powers provided for in s 126
(1) of the Criminal Procedure and Evidence Act as read with provision (ii) to that section as
quoted. It is necessary to unpack the quoted provision before setting out the applicant’s and
respondent’s contentions.
There are key points to note in relation to the provisions of s 126 (1) aforesaid. The
provisions of the section are not intended to provide a window to the applicant to seek a
correction of an order or judgement which the applicant for one reason or another is
dissatisfied with at the time that the judgment or order is granted or at any time thereafter. In
the case of S v Tsvangirai & Ors HH 92/03. The State applied to the court in terms of s 126
of the Criminal Procedure & Evidence Act to have further bail conditions imposed on the
accused persons added. The State based its application on allegations that Tsvangirai had
since his admission to bail gone on to address political rallies. The bail order did not order
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him not to address political gatherings. He was not shown to have breached conditions
imposed under the bail order. In refusing to grant the application, the court hold that the bail
conditions imposed related to specific allegations upon a specific charge. The conditions
could not be extended to cover a new occurrence sought to be guarded against. Significantly
and for purposes of the matter before me, it was stated in that case that a revisitation of bail
conditions must have a bearing on the offence under which bail order was granted. A fortiori,
the revisitation of the bail order under s 126 (1) should be informed by a reference to the
offence for which bail is sought to be altered, added to or the committal of the accused to
prison ordered.
The proviso (ii) to s 126 (1) specifically provides that the judge or magistrate “shall
not (own underlining) act in terms of subsection (1) unless facts which were or before the
judge or magistrate who granted bail are brought to his attention. Applying the reasoning in
the Tsvangirai case (supra), the facts which the judge may act upon should have a bearing on
the substance of both the offence for which bail was granted and the bail order itself. The
judge or magistrate cannot in my view exercise the powers given in subs (1) of s 126 based
on mere allegations or matters which are outside the ambit of the offence charged or bail
conditions imposed. Since the judge or magistrate must be of “the opinion that it is necessary
or admissible in the interests of justice that the conditions of a recognisance entered into by
that person should be altered or added to or commit the him (the person) to prison,” such
opinion should be a reasoned one and well founded upon the facts which were not placed
before the judge or magistrate who granted the initial bail order.
I wish to draw a distinction between the wording of the provisions of provisos 116 (c)
(ii) and 123 (10 (ii) of the Criminal Procedure and Evidence Act. Both provisos concern the
bringing of subsequent bail applications after the dismissal of initial bail applications. The
first quoted proviso relates to bail before conviction and sentence and the second proviso to
bail pending appeal or review. The provisos are similarly worded and provide that after the
dismissal of the initial or first bail application, any further application may be made to the
court “if such application is based on facts which were not placed before the judge or
magistrate who determined the previous application and which have arisen or been
discovered after that determination.” These subsequent applications have colloquially come
to be styled, “application based on changed circumstances or new facts.” The provisions of s
126 in the proviso quoted are more liberal and broader in scope. The judge is empowered to
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act in terms thereof upon production of facts not previously placed before the judge or
magistrate who granted bail initially. It is sufficient that the fact which is placed before the
judge or magistrate was not previously placed for consideration when bail was granted. The
fact does not have to have arisen or been discovered after the previous determination. It must
be a fact which even though it could have been available was for one reason or another not
placed before the judge or magistrate for consideration. The submission by the respondent’s
counsel in para 5 of the response to the application that s 126 is applicable only where new
facts have been pleaded before the court must therefore be read and understood within the
context of what I have stated in relation to the nature of what facts can be placed before the
judge or magistrate to motivate him or her to act in terms of s 126 (1) aforesaid.
It is a requirement of the of the invocation of s 126 (1) where merited, for facts not
previously pleaded to be placed before the judge or magistrate. I have already indicated that
the facts must have a bearing on the offence charged and the subsequent bail granted. The
judges or magistrate’s opinion is exercised upon a consideration of proven or established
fact(s). A fact is something which is true and has occurred. It is something already proven to
be correct. For example it would be a fact if the applicant has previous convictions which he
accepts. If for example such previous convictions were not placed before the court when it
granted bail, the placement of such fact before the judge or magistrate would be sufficient to
move the court to form an opinion on whether bail conditions should be altered, added to or
the accused be committed to custody. The previous convictions impact on the decision to
grant or refuse to grant bail and therefore constitute a relevant fact for purposes of section
126 (1).
In casu, the applicant averred in paragraph (5) of its statement that-
“5. Applicant is dissatisfied with the respondent’s admission to bail which has raised public
outcry.”
The above statement is telling because it clearly shows that the applicant was
dissatisfied with the admission of the applicant to bail and was motivated to act by public
outcries. It is with respect wrong for the applicant to pander to public opinion at the expense
of application of the Law. The same public members expect that the rule of Law should be
practised by the Courts. A good judgment is not necessarily one which the public must
accept. A good judgment is one which is procedurally and substantively correct. Section 164
(1) of the Constitution provides that:
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“164 The courts are independent and are subject only to this constitution and the law which
they must apply impartially, expeditiously and without fear, favour or prejudice.”
The Courts do not determine matters or make decisions based on public opinion but
they should make decisions based on the constitution and the law Although the
public interest must be jealously protected by courts, courts remain an institution for
interpreting and applying the law. They are not institutions for expressing public opinions
because the public opinion is not always correct nor in sync with the law applicable to a
particular circumstance. In bringing the application under s 126 (1) aforesaid the applicant is
required to be guided not by public opinion but by the provisions of the section and what the
applicant is supposed to allege and prove as fact.
The applicant being dissatisfied with the respondents admission to bail as stated in
this application had a remedy of noting an appeal against CHIKOWERO J ‘s judgment to a
judge of the Supreme in terms of section 121 of the Criminal Procedure and Evidence which
allows for such appeal to be noted within 48 hours of the making of the order. If the time for
appeal expired before noting the appeal, condonation of late noting of appeal and extension
of time to file the appeal could have been sought. It is wrong and unprocedural for the
applicant to not only express his dissatisfaction but to apply before the same court which
granted bail to determine the applicants’ dissatisfaction with a judgment handed down by that
same court under the guise of invoking provisions of section 126 (1) aforesaid
In paragraph (7) of the applicants statement, it is stated as follows-
“7. Applicant respectfully submits that it has come to his attention that the prosecutor who
dealt with the bail application did not, as he is required to do, seek the necessary consent from
his superiors in order to make the concession that he did, in cases of a serious nature, such as
the charges respondents (sic) are facing. Though this is administrative (own underlining) it is
suspected that the concession was corruptly made.
Consequently, the prosecutor Mr Kasima has been arrested and charged under section 174 of
the Criminal Law (Codification and Reform) Act, for criminal abuse of office, case No ACC
300/20 refers.”
I have already indicated that the facts envisioned in proviso (ii) to s 126 (1) of the
Criminal Procedure Act, must have a bearing on the offence and the bail conditions which
were imposed. The provisions of the section clearly refer to a revisitation of conditions of
recognizances entered into by the respondent in consequence of a bail order. The issue which
arises is not for the judge or magistrate to review the correctness of the decision to grant bail.
The facts must be sufficient to satisfy the judge or magistrate to reach the opinion that it
“necessary or advisable in the interests of justice to alter or add to the recognizances or if the
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alteration or addition would not best serve the interest of justice then a committal to prison
would then be considered and if justified, ordered.
The applicant has averred firstly that the issue of the prosecutor having to first obtain
consent of his superiors is an administrative act which is part of internal operations within the
applicants’ led establishment, viz, the National Prosecuting Authority. Section 260 (1) (a) of
the Constitution provides that the applicant is independent and is not subject to the direction
or control; of anyone. Therefore, unless the administrative arrangements in that office
become public law, the court will not pry into them. It is noted that the applicant does not
allege that the prosecutor in question lacked title to prosecute. Had this been so, then the bail
proceedings would be a nullity.
The applicant further averred that;
“It is suspected that the concession was corruptly made.”
It is noted that the applicant has admitted relying upon a suspicion. A suspicion is not
fact. Section 126 (1) in proviso (ii) requires the placement of fact (s) before the judge or
magistrate. Courts do not make finding based on suspicions but fact. I have cautioned myself
that since it is alleged that the prosecutor in question was arrested in regard to the consent in
issue, I must avoid making findings or comments which impact on the process of the criminal
investigation of the prosecutor and probably his trial. I therefore end by observing that the
judge or magistrate will not in terms of s126 (1) act on basis of suspicious. The applicant was
ill-advised to plead a suspicion as sufficient to move the court to invoke the provisions of sec
126 (1) aforesaid. The next issue is to determine whether the appellant pleaded any fact in his
application from which the judge or magistrate can form an opinion on the necessity or
desirability of invoking power provided for under section 126 (1).
The applicant did not plead any other fact which was not placed before CHIKOWERO J
as would form a basis for revising the bail recognizances granted by the learned judge. The
rest of the allegations in paragraphs 8-12 of the applicants’ statement are a regurgitation of
the allegations made in the form 242 which formed part of the bail application filed by the
respondent and granted by CHIKOWERO J. It is alleged in these paragraphs that the respondent
does not ordinary reside in Zimbabwe but in South Africa and has connections outside the
country thus increasing the risk of abscondment; that the respondent committed the offences
charged whilst on bail for other offences; that one of the counts, being murder, was a capital
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offence, attracting the death penalty upon conviction; that respondent resisted arrest and that
there is strong evidence linking the respondent to the offence since there is evidence of closed
circuit television (CCTV) footage wherein the respondent is captured whilst committing the
offence including the recovery of a gateway vehicle through indications made by the
respondents accomplices. There is nothing stated in this application which was not part of the
bail proceedings before CHIKOWERO J. I have to assume that the learned judge considered all
the facts now repeated in this application before he granted the respondent bail. A judge of
corresponding jurisdiction like myself cannot impugn the decision of CHIKOWERO J. I have to
assume that the learned judge considered all the facts now repeated in this application before
he granted the respondent bail. A judge of corresponding jurisdiction cannot impugn the
decision of another colleague. The matter ends there in that the provisions of s 126 (1) cannot
be invoked in the absence of the pleading and proof a fact not previously presented before
CHIKOWERO J being presented to me. There is no such fact pleaded in this application.
In the supplementary bail statement subsequently filed by the applicant, there was an
attempt to further build the applicant’s case. In paragraph 5-7 of the statement, it is stated-
“5. In casu, the prosecutor did not place before the court, the relevant factors he had
considered in consenting to bail, despite very clear indications in the investigating officers’
(I.O’s) affidavits militating against the grant of bail as highlighted in the application. The
prosecutor dwelt with the issue of whether or not respondents have fixed abode. He went on
to conclude that they were of fixed abode, contrary to the averment by the I.O’s that
respondents also have places of abode outside the country, an indication of connections
outside the jurisdiction of the court, therefore likely inducement to abscond. This together
with other relevant factors a highlighted in the application were not brought to the attention of
the court. Relevant pages in this regard are 26; 30-34; 37-38 and 62.
6. It is further submitted that, if at all there had been changed circumstances from the time the
Form 242 had been prepared and submitted to the prosecution warranting the prosecutor to
disregard averments therein, he ought to have either called the I.O’s to testify or place the
circumstances before the court for a proper determination of the case
7. As things stand, the court which granted bail was misled into accepting the concession of
the bail application.”
A close analysis of the quoted paras 5 -7 shows that the applicant accepts that the
affidavits of the investigating officers were part of the record of proceedings dealt with by
CHIKOWERO J. The prosecutor Mr Kasema in his response made reference to the affidavits
and indicated that he had considered them. The issue of investigating officer’s affidavit was
therefore a fact (s) which was before the learned judge. In other words they are not
documents being presented to the court for the first time. The rest of the averments in the
quoted paragraphs relate to what the applicant avers as what Mr Kasema did which he should
not have done, or did not do when he should have done so. These issues would be
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administrative within the set up in the applicant’s offices and how his functionaries must go
about preparing bail response. This would not constitute a fact connected with the offence on
which the respondent sought bail nor the conditions of bail imposed.
In argument, Ms Maheya for the respondent placed reliance on the case of State v
Robson Munamba HH 573/15 in opposing the application. In particular she averred that there
was nothing new placed before me as fact to warrant the revisitation of the bail order of
CHIKOWERO J. She argued that the applicant was clandestinely seeking a review or appeal of
CHIKOWERO J’s order through the back door. In the case of Munamba (supra) MAWADZE J
dealt with a more or less similar case to the one in casu. In that case the accused who was
charged with attempted murder was admitted to bail pending trial by MAWADZE J. Bail was
granted by consent in that the prosecutor, a Mr Muringani filed a bail response consenting to
the admission of the applicant therein to bail. The learned judge indicated in his reasons for
judgment that the bail response had “informed the consent order” which was granted. The
order endorsed by the learned judge that it was a consent order. Bail was granted on 10 June,
2015. On 12 June, 2015 an application under s 126 (1) (supra) was filed. The learned judge
on p 4 of the cyclostyled judgment stated as follows in relation to the application:
“On 12 June, 2015, the state through Mr Mugabe made an application for the revocation of
bail and issuance of a warrant of arrest in terms of S 126 (1) and (2) of the Criminal Procedure and
Evidence Act, [Chapter 9:23]. The state submitted that it had consented to bail without verifying
certain facts with the investigating officer and that Mr Muringani who had consented to bail had not
sought authority from his superiors. I should hasten to point out that I am not aware of any law which
requires a prosecutor to seek authority before consenting to bail .”
The learned judge went further to comment on page 5 of the cyclostyled judgement
that:
“There are no new facts which were not before me when I initially granted the respondent
bail… Before this court can act in terms of section 126 (1) of [Chapter 9:07] there should be new
facts in existence which were not brought to the attention of this court. See Mahata v Chigumira N.O
& Anor 2004 (1) ZLR 88 (H). It is therefore clear that where there are no such new facts this court
cannot revoke the respondent’s bail. All the facts raised by the State were clearly stated in the
annexure to Form 242 and the investigating officer’s affidavit when bail was granted by consent. The
disquiet by some officials in the Prosecutor General’s office on why bail was granted cannot be
construed as new facts.”
I am in agreement with MAWADZE J. I have already made note that the issue of how
the applicant’s officers generate their reponses is an internal matter for that office and is not a
law which applies to bail applications. Indeed in this application, it was pleaded that the
seeking of a superior’s consent by a junior officer in respect of specified offences is an
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administrative measure. The so called “new” facts were all part of the record of proceedings
before CHIKOWERO J. Although MAWADZE J referred to the need for “new facts” to be
established before s 126 (1) could be invoked the “new” facts, do not have to be new in the
sense that they have just come into existence. They are new because they were not presented
before the judge. As I have already stated the proviso (ii) to s 126 (1) speaks to facts not
previously presented to the judge. The use of the word “new” must be understood and applied
in context. MAWADZE J’s judgment is persuasive and I agree with his approach and
reasoning.
I must however point out in casu that there is no endorsement by CHIKOWERO J in his
order that the judgment was “by consent”. That being so, it must be assumed that bail was
granted after the CHIKOWERO J had considered all documents filed of record and hearing
counsel as endorsed on the order. The state’s response by Mr Kasema constituted one of the
several documents which CHIKOWERO J must have considered, amongst other documents
being inclusive of the investigating officer’s affidavit and forms 242. It is therefore not
apparent from the order that the learned judge was motivated to grant bail by the state’s
response only. The bail order does not refer to the bail order as having been granted by
consent or by virtue of the filed state’s consent. In the response itself Mr Kusema indicated in
his response that punctuated his position by clearly stating that bail could be granted if his
concession finds favour with the court which means he left it to the court to make the final
determination rather than to rubber stamp the consent.
The States response if given as consent does not mean that bail should inevitably be
granted. Subsection (5) of s 117 of the Criminal Procedure and Evidence Act provides as
follows:
“95) Notwithstanding the fact that the prosecution does not oppose the granting of bail, the
court has the duty to weigh up the personal interests of the accused against the interests of justice as
contemplated in subsection (4)”
I have to assume that the learned judge was aware of the above provision and did not
just endorse the state’s consent by Mr Kasema.
In conclusion, when everything that concerns this application has been considered,
certain lessons going forward must be learnt by the applicant in relation to applications
brought under s 126 (1) of the Criminal Procedure and Evidence Act as done herein. This
type of application should not be made as a mere formality. It is not an easy application
because in essence the judge or magistrate is being asked to review his or her decision in an
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otherwise completed matter. The applicant must therefore follow strictly the requirement of
the proviso that fact (s) not previously presented to the judge must be alleged and be
established. Ideally, unless the fact being presented is common knowledge, to the extent that
a fact is proven by evidence, there should be filed an affidavit in proof of the alleged fact.
Mere statements by the prosecutor as done in this case are not sufficient to establish a fact (s)
unless the factual allegation is admitted by the respondent.
The applicant should also not use the procedure in s 126 (1) and (2) to sneak in an
appeal or review of the correctness of the judge or magistrate’s decision to grant bail to the
respondent. The applicant clearly indicated that it was dissatisfied with the order. The remedy
was to file an appeal. This was not done then and has not been done to date. The rule of law
requires both procedural and substantive fairness to be observed. Unfortunately the adoption
of a wrong procedure in this matter means that the dissatisfaction of the applicant and as the
applicant states, of the public will remain so because the judgment by CHIKOWERO J remains
extant unless set aside by a judge of the Supreme Court on appeal.
The applicant is also advised to familiarize his office with important judgments of this
court and the Supreme Court on key operational areas of law like bail generally. If the
applicant’s representative had applied himself or herself to the Munamba judgment by
MAWADZE J, I have no doubt that the applicant may well have been advised not to mount this
unmeritorious application or if advised to do so, then the peremptory of proviso (ii) to s 126
(1) of the Criminal Procedure and Evidence Act should have been followed. It is regrettable
that I have to express disquiet over the inept manner in which the application was handled by
the office of the applicant and its inability to appreciate that its dissatisfaction with the
judgment of CHIKOWERO J could only be corrected on appeal and not via s 126 (1)
Having commented adversely on the ineptitude shown in the handling of this
application, the comments being an aside, I determine that having taken account all the
documents filed of record and heard counsel in argument there is no merit in this application
at all. Resultantly the application is dismissed.
National Prosecuting Authority, applicant’s legal practitioners
Maseko Law Chambers, respondent’s legal practitioners
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