Judgment record
Tonderai Gandazha v The State
HH 425-21HH 425-212021
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B 1576/21
TONDERAI GANDAZHA
versus
THE STATE
HIGH COURT OF ZIMBABWE
CHIRAWU-MUGOMBA J
HARARE, 13 August 2021
J Gusha, for the applicant
S. Masokovere, for the respondent
BAIL APPLICATION
CHIRAWU-MUGOMBA J: On 13 August 2021 I dismissed ex tempore, an
application for bail pending trial filed on behalf of the applicant on the basis that there was a
high risk of abscondment. I have been requested for reasons. These are they.
The applicant seeks to be admitted to bail pending trial. He faces a charge of murder
as defined in s 47 of the Criminal Law (Codification and Reform) Act [Chapter 9:23]. It is
alleged that on or about 2 or 3 July 2016, at Chidhawu Village, Chikwaka, the applicant had a
misunderstanding with the deceased. He assaulted him by pushing him onto a veranda. In
support of the application it was contended on behalf of the applicant that he does not pose
risk or endangerment of the safety of the public or any other person. There is no risk of
abscondment. The applicant is a Zimbabwean by birth. Upon arrest he was highly
cooperative on arrest. He was never aware that he was wanted by the Police. There is no risk
that he will interfere with witnesses once statements are recorded. He denies the charge
against him and avers that he tried to intervene in a fight between the deceased and other
people. He did not flee but attended the funeral of the deceased. He later re-located to South
Africa for a period of five years before returning to Zimbabwe to visit his relatives. Had he
committed the offence, he would not have returned to Zimbabwe. In support of the
application, reference was made to Makone v The State, B 493/07; S v Benator, 1985 (2)
ZLR 205 (HC); v Hussey, 1991 (2) ZLR (S) and Dhlamini and ors v The State, HH-57-09.
The Form 242 request for remand shows that the applicant was arrested on 3 August
2021, a period of five years since the alleged commission of the offence. Part C of the form
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states the reasons for opposing bail as the fact that the applicant has no house, his homestead
having collapsed whilst he was in South Africa. Also that witnesses stay in the same area so
there can be some interference; that the applicant has a valid Zimbabwean passport and he
can go back to South Africa where he was hiding since 2016. Lastly that the likely
punishment can induce him to abscond.
From the onset let me hasten to state that it is astounding that so many legal
practitioners who came to court for bail matters during that week beginning 11 to 13 August
2021 were unaware of the High Court Rules, 2021 that had been operational for three weeks.
These rules inter alia now combine the civil and criminal rules. With relation to applications
for bail, these are found in part XV, r 90 -93. They cover what should be contained in bail
statements at different stages, i.e. general for all situations, bail pending trial, bail pending
appeal and appeals against refusal of bail by the Magistrates Court. The new rules also
introduce specific reference to s 50(1)(d) of the Constitution by stating in r 90(4)(g) that an
application must show the grounds on which the applicant seeks release on bail having regard
to the provisions of that section. This means that an application must refer to the constitution
in so far as it states that an accused person must be released unconditionally or on reasonable
conditions, pending a charge or trial, unless there are compelling reasons justifying their
continued detention. I noted that many bail applications read like heads of argument with
very little on the circumstances of the accused person and a regurgitation of the law. It is
almost as if the applicant’s legal practitioners merely just change the citation by including the
name of the applicant and using the same ‘precedent’ over and over again. Nonetheless, I
condoned the half-baked bail statement in terms of r 90(3) (a) and heard the application on
the merits. Legal practitioners must however note that the court may not so be inclined to
deal with applications that do not comply with the new rules.
I also hasten to state that I heard the matter without the benefit of the response by the
State. It is no longer business as usual in bail applications. The days of delaying bail hearings
due to the fact that the State had not filed its response are a thing of the past. The new rules
make provision for the hearing of a matter without the State response as follows:-
“At least three hours before the hearing of an application or bail, the Prosecutor-General shall
cause the following documents to be filed with the registrar—
(a) his or her response to the application; and
b) a copy of any comments which he or she has been able to elicit from the magistrate who is
presiding or who presided over the applicant’s trial, where the trial has commenced or been
completed;
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and, where practicable, shall cause a copy of his or her response to be served on the applicant
or the applicant’s legal practitioner.
(7) Where the Prosecutor-General has not filed a response in terms of subrule (6), the
court or a judge shall determine the application without any recourse to him or her:
Provided that the court or a judge may extend the time during which the Prosecutor-
General is allowed to file a response on application being made either in writing or
orally at the hearing of the application.”
The High Court of Zimbabwe Bail Rules, 1991 that have been repealed did not have
such a proviso. The new rules importance lies in the fact that in bail applications, a court can
proceed to hear an application on the merits in the absence of a written response by the State.
The time frame for the state to respond can be extended upon application either orally or in
writing at the hearing. What tends to happen in the bail court is that both applicant and State
Counsel take it for granted that they can actually agree to an extension of the time within
which to file a response. Very often judges are told that, ‘may the matter be postponed to
such and such a date and this is by consent’. My reading of the new rules is that the
Prosecutor - General has to apply orally or in writing for an extension of time within which to
file a response. The court is at liberty to agree to the extension or deny the application. In
denying, the court in my view should consider the complexity of the matter, the time when
the application was filed and other key documents in the file including the request for remand
Form 242, the state outline and the charge sheet. It may also consider that there is need for
evidence from the investigating officer and of course the reasons by the State Counsel in
seeking an extension of time. In my view, the court should exercise its discretion judiciously.
In casu, the respondent did not make an application for an extension of time within
which to file its response. I accordingly proceeded in terms of r 90(7).
To note also is that bail applications still remain urgent and should be set down within
a period of 48 hours – see r 90(5) subject to r 90 (5)(ii) on extension of the period by written
agreement between the applicant and the Prosecutor – General or by a Judge. See Pondo v
The State, HH-218-21.
The basic principles to be considered in deciding bail pending trial in terms of s 117
(2) of the Criminal Procedure and Evidence Act [Chapter 9:07] are essentially whether or not
the accused person will endanger the safety of the public; whether or not he is likely to stand
his trial or appear to receive sentence; whether or not he will intimidate witnesses or conceal
or destroy evidence; and whether or not he will undermine or jeopardise the objectives or
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proper functioning of the criminal justice system including the bail system. This must be read
in the context of s 50(1)(d) of the Constitution.
Where it is alleged that accused will abscond and not stand trial, the court will
consider the following:-
“ (i) the ties of the accused to the place of trial; (ii) the existence and location of assets held
by the accused; (iii) the accused’s means of travel and his or her possession of or access to
travel documents; (iv) the nature and gravity of the offence or the nature and gravity of the
likely penalty therefor; (v) the strength of the case for the prosecution and the corresponding
incentive of the accused to flee; (vi) the efficacy of the amount or nature of the bail and
enforceability of any bail conditions; (vii) any other factor which in the opinion of the court
should be taken into account;”. See 117 3(b) of the Criminal Procedure and Evidence Act.”
In relation to abscondment, TAKUVA J in Nyaruvivo and anor v The State,
HB-262-17 aptly stated as follows:-
“In assessing the risk of abscondment, the established approach is for the court to assess this
risk by first assessing the likely degree of temptation to abscond which may face the accused.
To do this, one must consider the gravity of the charge because quite clearly, the more serious
the charge, the more severe the sentence is likely to be. In S v Nichas 1977 (1) SA 257 (C) it
was observed that if there is a likelihood of heavy sentences being imposed the accused will
be tempted to abscond. Similar sentiments were stated in S v Hudson 1980 (4) SA 145 (D)
146 in the following terms;
“The expectation of a substantial sentence of imprisonment would undoubtedly
provide an incentive to the accused to abscond and leave the country.”
In other words, the possibility of a severe sentence enhances any possible inducement
to the accused to flee. See also Aitken v AG 1992 (2) ZLR 249 and Norman Mapfumo v The
State HH 63/2008.
The applicant in his application submitted that he was not aware that the Police was
looking for him on murder charges. He cannot therefore be said to be a person who came
from South Africa to hand himself over to the Police. In paragraph 5, he submitted that he
used to come back to Zimbabwe periodically though he did not state how many times. In
para 7.3 he states that before his arrest, he came back to Zimbabwe on his own to visit
relatives. He never stated that he came back for good. This reveals that he had every
intention to go back to South Africa where he has set up base. The tables have now turned
because he has been placed under arrest. The court is therefore inclined not to place due
weight on applicant coming back to Zimbabwe periodically. Contrary to the requirements of
r 90(4)(h) applicant did not take the court into his confidence in relation to the conditions that
he proposes for the granting of bail to him. He never challenged the assertion in the Form
242 that he has a passport and that he no longer has a home in Zimbabwe. This is supported
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by his assertion earlier noted when he stated that he came back to visit relatives. He never
established his ties to Zimbabwe. In the face of the serious charge that he is facing and the
above mentioned factors, the risk of abscondment is very high.
While s 50(1)(d) of the Constitution leans in favour of the rights of an accused person,
a balance must be struck between the rights of an accused and society. The applicant has not
in my view shown compelling reasons why he is a proper candidate for bail.
The application is therefore dismissed.
Gurira and Associates, applicant’s legal practitioners
The National Prosecuting Authority, State’s legal practitioners