Victoria Manyau V THE State

### Preamble
1
HH 255-11
B 1055/11
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VICTORIA MANYAU

versus

THE STATE

HIGH COURT OF ZIMBABWE

GOWORA J

HARARE, 27and 29 September and 18 October 2011

Bail Application

B Tokwe, for the applicant

T Mapfuwa, for the State

GOWORA J: The applicant is a female adult aged 31. She was arrested on 16 June 2011 on allegations of theft of motor vehicles.  She has an infant aged six months who is incarcerated with her in prison.  She has approached this court for her release on bail pending trial.

She contends that she is a suitable candidate to be released on bail due to the following circumstances. She is of fixed abode. She is married with two minor children the younger one of whom is in custody with her due to her tender age. She says that she is self employed as a commodity broker earning an average USD $800.00. There is no indication if these earnings reflect her yearly or monthly income. She states that she is a Zimbabwean citizen with no contacts outsides the borders of the country. She is not the holder of a passport or travel document. Apart from her immediate family she also has siblings whom she assists. The chances of her absconding, given her personal circumstances and the responsibilities that she has are therefore non existent.

The applicant also states that there is nothing on the papers from the police or state that shows that she will commit offences whilst on bail. In addition her co-accused was granted bail by this court and it is a time honoured principle that co-offenders should be treated the same. This entitles her to be granted bail.

The state has opposed the granting of bail in favour of the applicant. It is contended that the applicant is facing four counts of a very serious offence and that in the event that she is convicted she is likely to face lengthy prison terms for the offences which may act as incentive for her to abscond and avoid trial. It is conceded that her co-accused was granted bail but that there are factors pertaining to the applicant which do not make her a good candidate for bail. The applicant is not a first offender and all the factors taken cumulatively militate against her being given bail.

The fundamental principle governing the court’s approach to applications for bail is that of upholding the interests of justice. The court therefore has to strike a balance between the interests of society and that of the accused person. Every person is presumed to be innocent until found guilty by an impartial court or tribunal. An interference with that person’s liberty must there be justifiable on grounds that he is not a good candidate to be released on bail and that the interests of justice and the very administration of justice would be compromised if the accused person was released on bail prior to the trial.

In casu, it is not in dispute that the applicant is not a first offender. She was convicted of ten counts of fraud in 2006 and granted bail pending appeal. It is not in dispute that the current offences were committed during the time that she had been released on bail after noting the appeal. Mr Tokwe submitted that for a court to deny an application for bail on the ground that such applicant had a propensity to commit offences, it was incumbent upon the state to show that such person has a string of previous convictions. It was his argument that a single previous conviction did not show propensity. He relied on the dicta from Attorney-General v Phiri 1987 (2) 33 for this proposition. REYNOLDS J stated therein:

“…….I would accept that the mere possibility of the accused committing further crimes, standing alone, would not be of sufficient cogency to outweigh the accused’s right not to be deprived of his freedom. But when to a bad criminal record is added the allegation, on evidence of substance, that the accused has committed further and similar offences while on bail, the matter, in my judgment passes beyond the limits of mere relevance, and becomes highly persuasive and cogent. Whereas the presumption of innocence applies to bail applications, this must not be over-emphasised for the ends of justice would not be served if the accused were to be granted bail when there was some cognisable indication that the accused would not abide by the conditions of the bail cognizance. (S v Fourie supra; S v Ramgobin 1985(3) SA 587 (N).)”

Contrary to what was submitted by counsel on her behalf, the applicant does have one previous conviction, she has ten even though she was tried and convicted of the offences at one trial. She was on bail pending appeal when the current offences were allegedly committed. The fact that she has appealed against the conviction on the ten counts does not mean that she is not guilty. An appeal against a conviction does not suspend the operation of the sentence. That is done through an application for bail pending appeal. Unless set aside a conviction and sentence stand. She therefore has previous convictions for offences involving dishonesty.

In the current charges being levelled at her, it is the allegation that on four separate occasions she and an accomplice hired motor vehicles from the unsuspecting complainants. It is further alleged that they would create fake registration books which they then used to sell the vehicles to other parties. One of the vehicles was registered in the name of the applicant before it was disposed of. Three of the vehicles, including the one bearing a fake registration book in the name of the applicant were recovered by the police.

It cannot be said that what the police have against the applicant are mere suspicions especially regarding the count where her name was used in preparing a fake registration book. She has shown a clear disregard for the law by committing an offence whilst being on bail pending appeal for the ten counts she stands convicted of. She has shown that she has no respect for the law and the conditions regulating her bail. I agree with the suggestion from the state that she has shown a propensity to commit crimes involving dishonesty. The ends of justice would not be served if she were admitted to bail as the chances that she would commit further offences are quite high. In my view she is not a good candidate for bail

In the premises the application for bail is hereby dismissed.

GN Mlotshwa Legal Practitioners for the applicant