Zekias Ziunye AND Bonnie Chibundo AND Major Mutero AND Samuel Kwindima AND Lloyd Kamuriwo AND Takura Mhungu AND Arthur Mhungu AND Tendeza Nyarumbe AND Togarepi Chikotera AND Mistake Chinofura AND Stanford Masangudza Versus THE State

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ZEKIAS ZIUNYE
and
BONNIE CHIBUNDO
and
MAJOR MUTERO
and
SAMUEL KWINDIMA
and
LLOYD KAMURIWO
and
TAKURA MHUNGU
and
ARTHUR MHUNGU
and
TENDEZA NYARUMBE
and
TOGAREPI CHIKOTERA
and
MISTAKE CHINOFURA
and
STANFORD MASANGUDZA
versus
THE STATE


HIGH COURT OF ZIMBABWE
BHUNU J
HARARE, 30 June 2011 and 22 July 2011


Miss Zeure, for the Applicants
Mrs Fero, for the Respondent

Bail Application

       The 11 applicants were arrested on 14 April 2011 on allegations of politically
motivated public violence in contravention of s 36 (1) (b) of the Criminal Law
(Codification and Reform) Act [Cap 9:23]. The accused are alleged to have severely
assaulted the complainants with the result that of they were hospitalized. Since then they
have been languishing in prison pending trial.
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       They were twice denied bail by the same magistrate victims on 20 May 2011 and
16 June 2011. The hearing magistrate initially refused them bail on the basis that
politically motivated violence was a serious offence. There was need to curb that type of
conduct particularly that the country was now herding towards elections. It was also
feared that the accused might interfere with witnesses.
       The magistrate’s reasoning in this respect could hardly be faulted at that time.
When the accused persons later applied for bail on changed circumstances they however,
endeavoured to convince the magistrate that they had adjusted their position in order to
address the court’s fears. They also pointed to a number of changed circumstances in
their favour.
       As at 20 May 2011 investigations had been completed. The trial date had been set
for 24 May 2011. There was therefore little or no prospect of them interfering with
investigations. The trial started on 16 June 2011. To date one witness has given evidence.
To avert any prospect of interfering with the remaining state witnesses the applicants
proffered alternative residential addresses.
       What seems to have escaped the magistrate’s notice is that this is an in house
fighting among members of the same party belonging to different factions. This type of
political violence does not appear to be widespread and can conveniently be addressed
through the party leadership while the law takes its course. The fear of renewed violence
and victimization of the accused was in my view properly addressed when the applicants
proffered alternative residential addresses. The magistrate therefore misdirected himself
by ruling that there were no valid changed circumstances warranting the granting of bail.
       I do not see how the release of the applicants on bail can constitute a threat to
public peace in the area if they have provided alternative residential addresses away from
the complainants and their associates and sympathizers.
       The applicants are simple rustic dwellers who are well known in their locality
such that the risk of abscondment is almost zero. They have offered to pay substantial
amounts of bail which will provide an incentive for them to attend their trial.
       The magistrate’s order refusing the applicants bail is accordingly quashed and
replaced by the following order:
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   That the applicants be and are hereby granted bail on the following terms:

   1.      That each applicant shall deposit US$100.00 with the clerk of court
           Mutawatawa Magistrates court.

   2.      That each applicant resides at his given alternative address until this matter is
           finalized

   3.      That each applicant reports at Mutawatawa police station once every week on
           Fridays between the hours of 6am and 6pm until the completion of his trial.

   4.      That each applicant shall not interfere with witnesses.




Warara & Associates, applicant’s legal practitioners
The Attorney General’s office, respondent’s legal practitioners