Tichaona Canaan Manyuru and Tatenda Manyani v The State

### Preamble
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HMT 19-21
B 206/20
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TICHAONA CANAAN MANYUKURU

and

TATENDA MANYANI

versus

THE STATE

HIGH COURT OF ZIMBABWE

MWAYERA J

MUTARE, 14 January 2021

Bail Application

Applicants in Person

Mrs J. Matsikidze, for the State

MWAYERA J: On 14 January 2021 I gave an extempore judgement dismissing an application for bail pending trial lodged by the applicants as self-actors.

By letter dated 7 April which was brought to my attention on 20 April 2021 Mr T. I. Gonese of Gonese and Ndlovu legal practitioners requested for reasons for written judgement.

These are they:

The applicants who were both self-actors filed their applications separately for hearing on the same date. By consent the bail applications of the jointly charged applicants were consolidated and both applications were accorded chance to address the court. The state opposed both applications for bail citing compelling grounds militating against the admission of applicants to bail.

The applicants were arraigned before Magistrate Court Rusape facing allegations of murder as defined in s 47 of The Criminal Law (Codification and Reform) Act [Chapter 9:23]. It is alleged that on 27 September 2020 the two applicants in the company of 2 others who are still at large went to Boas Mamutse’s homestead. The accused persons demanded cash from the now deceased while at the same time assaulting him. One of the accused struck the now deceased Boas Mamutse three times on the head with an axe. The accused managed to steal US$7, 2 cellphones, Bass radio, Bluetooth radio and a memory card. The deceased was ferried to hospital and he died on the way.

In applications for bail pending trial the law is fairly settled. What falls for consideration is the individual right to liberty which is premised on the presumption of innocence till proven guilty by a competent court of law. On the other hand is the interest of administration of justice which leans on the societal desire to have matters prosecuted to their logical conclusion to ensure that justice is done. In seeking to strike a balance between the right to individual liberty and interest of administration of justice the court has of necessity to consider all factors cumulatively and not in isolation so as to come up with a just decision.

It is settled in an application for bail pending trial that bail pending trial is a constitutional right availed in s 50 (i) (d) of the Zimbabwean Constitution which states

“A person who has been arrested must be released unconditionally or on reasonable conditions pending a charge or trial unless there are compelling reasons justifying their continued detention”

Clearly the presumption of innocence signals that the right to individual liberty should not be lightly eroded unless there are compelling reasons warranting such infringement. See s v Felody Mnsaka HB 55 36/18 Last Ncube v The State HB 36/18. The Criminal Procedure and Evidence Act [Chapter 9:07] s 116, 117, 117A give guidelines on what falls for consideration in bail applications. The common thread running through the sections is that the factors should be considered cumulatively. Section 117 of the Criminal Procedure and Evidence Act gives useful guidelines or factors the court has to consider in dealing with whether or not there are compelling reasons justifying the denial of bail. They are among others outlined as follows:

Whether the accused if released on bail will endanger the safety of the public or any person or will commit an offence referred to in the first schedule

Whether accused will stand trial

Whether the accused will attempt to influence or intimidate the witnesses or conceal or distort evidence

Whether the accused’s release will undermine or jeopardise the objective or proper function of the criminal justice system inclusive of the bail system.

These factors inclusive of the nature of allegations, the strength of the state case, the severity of punishment in the event of conviction, likelihood of abscondment and likelihood of interference and the possible defence raised by the applicant are relevant in striking a balance between the right to individual liberty and interests of administration of justice. If the interests of administration of justice will not be jeopardised then there are no forceful or compelling reasons why an applicant should be denied his right to liberty.

In this case the applicants are alleged to have teamed up and committed a murder to facilitate a robbery. This denotes a serious gang murder charge which in the event of conviction would attract life or even capital punishment. I am alive to the fact that seriousness of an offence on its own is not good enough reason to deny bail. See S v Hussey 1991 (2) ZLR 187. The seriousness of the offence has to be considered conjunctively with the circumstances of the alleged offence. The allegations portray a gang premeditated criminal enterprise orchestrated to commit a robbery. The likely sentence for murder by use of an axe on the head to facilitate robbery can act as an incentive to abscond. The seriousness of the offence when viewed together with the likely sentence and the strength of the state case are factors which militate against admission of the applicants to bail. The first applicant led the police to second applicant from whose place a blood stained shirt was recovered and the deceased died shortly after being struck with an axe on the head. Further militating against admission of the applicant to bail is the fact that their co-accused are at large and as such the state fears of interference direct or indirect with investigations and witnesses are not farfetched but real.

In this case considering the nature of allegations the circumstances of the matter, the possible defence by the applicants which is a bare denial, the seriousness of the offence and the likely sentence it would be misnomer to admit the applicants to bail. There is no incentive for the applicant to avail themselves for trial in the circumstances. The circumstances fit into the exceptional appropriate circumstances where the right to liberty has to be curtailed so as to ensure that the interests of administration of justice are not prejudiced. See S v Chipeta HMA 06/17.

The temptation to abscond is high in this case and there appears to be no motivation to stand trial. In situations where there are compelling reasons not to admit the applicants to bail then bail should not be granted for the mere asking.

Accordingly both applicants are not suitable candidates for bail and it is ordered that:

The application be and is hereby dismissed.

National Prosecuting Authority, legal Practitioners for the State.