Judgment No. HB 141/2002

Case No. HCB 182/2002

CRISSY SIMUKOKO

Versus

THE STATE

IN THE HIGH COURT OF ZIMBABWE

CHEDA J

BULAWAYO 25 NOVEMBER & 12 DECEMBER 2002

Mrs C Nleya for the applicant

H Ushewokunze III for the respondent

Bail Appeal

CHEDA J: This is an appeal against the magistrate decision denying

appellant bail pending trial.

The brief facts according to the respondent are that appellant is a man aged 24.

On 2 August 2002 he is alleged to have broken into Greys Inn Hotel and stole a

Toshiba Computer laptop value $1.3m (one million three hundred dollars) which

belonged to a guest Mr Freddy Gweme. Upon his arrest appellant was found in

possession of an Acer laptop computer which he could not account for at that stage.

However, it has since been established, that the said laptop computer belongs to one

Ainsley Rollo of Harare who lost it through a break-in while he was staying at Zak’s

Place a hotel in Bulwayo.

Appellant is a Zambian national who on his arrest he implicated another

Zambian national Joseph Mwanza who is still at large but is believed to be in South

Africa.

On 26 August 2002 appellant applied for bail which was refused by the

magistrate sitting in Bulawayo for which this appeal is based. Appellant contended

that he should be admitted to bail pending his trial on condition that he:-

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1. Deposits $100 000 cash with the registrar of the High Court

2. Reports three times a week at Marlborough Police station, Harare

3. Surrenders his passport to the Registrar of the High Court

4. He stays at 1767 Bemhiwa Close, New Marlborough, Harare

On the other hand the respondent opposed bail on the following grounds:

1. That the appellant is a Zambian national and does not have a contact address in Zimbabwe and he may therefore abscond

2. He was found in possession of stolen two laptops valued at $2.6m

3. He may interfere with witnesses namely Joseph Musanga who is also a Zambian national and is believed to be in South Africa

4. That investigations are still in progress.

The principle of presumption of innocence until proven guilty by a competent

court is religiously followed in our legal system. An accused should therefore not

lightly be deprived of his liberty in the absence of evidence laid before the court

which indicate on a balance of probabilities that his release on bail may jeopardise the

proper administration of justice. The gravemen of the matter is that the accused

should be able to stand trial after his release on bail. Therefore, where possible the

courts will always lean in favour of his release.

Appellant laid down 4 conditions which should attach to his release on bail

(supra). I find that conditions 1 – 3 (supra) to be valid and easy to implement. But

the fourth condition which relates to where he is to reside until the matter is finalised

casts some doubt on his sincerity and honesty. He stated through his legal practitioner

that upon release he will reside at 1767 Bemhiwa Close, New Marlborough, Harare

with his brother Joseph Simukoko who is married to a Zimbabwean woman, one

Temptation Sibindi. The house in question is said to belong to Ms Sibindi’s brother.

In support for this averment applicant filed a “note” inscribed as follows:

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“Attention: Mr Hikwa (his then legal practitioner)

TO WHOM IT MAY CONCERN

I do confirm that Joseph Zimukoko resides at number 1767 Bemhiwa Close, New Malborough, Harare and Criss is his young brother.

Robert Gutsha Sibindi

National I.D – 63-316157 J 56

Cell – 091 269 006

Owner of the above property”.

The “note” was supposed to serve as proof that appellant had a place to reside

at while on bail. The “note” with all due respect, falls far short of being authentic for

the following reasons:

1. The appellant’s surname is recorded as Simukoko that of his brother is Zimukoko

2. It is neither dated nor signed

3. It is not clear how it was submitted to his then legal practitioner i.e. whether it was faxed or sent by post as it appears to be a photocopy.

Appellant as a foreigner should submit concrete evidence of his residence and

such evidence should be such that it removes any doubt about its authencity. This is

very pertinent, for it is on that basis that the court should strongly consider his release

upon satisfaction of his abode. Mrs Nleya, the legal practitioner who subsequently

appeared on his behalf admitted that the initial application submitted by Mr Hikwa

indeed, did not adequately address the issue relating to this “note”. She indeed found

herself in quick sand on that point.

Appellant must prove on a balance of probabilities that his release on bail will

not result in the frustration of the proper administration of justice. In the present case

I find that lack of proof of his abode on his part militates against his quest for

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release on bail as the court cannot release him to a place whose ownership and/or

occupation is in doubt.

Respondent argued that if released on bail he is likely to interfere with

evidence against him, is in my view without merit as the police are in possession of

all the evidence against him in that all the property has been recovered. Mere

suspicion without substantiated evidence is insufficient to justify appellant’s

deprivation of his liberty. The respondent should be able to show that appellant will

and not may interfere with state witnesses and such witnesses should be stated. See S

v Bennett 1976(3) SA 652 (C). It is not proper for the respondent to leave it to the

appellant to speculate who these witnesses are so as to regulate his conduct

accordingly.

Respondent further argued that appellant may commit further offences if

granted bail. This argument although not made clear, is based on the fact that he was

linked with the previous theft of a laptop at Zak’s Place, Bulawayo. This in my view

does not, however, show that he has a propensity of committing crimes. The

propensity to commit further crimes should be considered in conjunction with other

relevant factors such as the seriousness of the crime and public harm which will

follow if released on bail. The list is inexhaustive.

Therefore, there should be a real likelihood that appellant will commit further

offences while on bail. See S v Patel 1970 (3) SA 565 (W) and R v Shaw 1922 TPD

Appellant has failed to convince me that he has a fixed abode wherein he will

reside until his matter is finalised. It is important for the state to know where an

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ordinary, that is a Zimbabwean citizen resides and it is even more important for such

knowledge where the suspect is a foreigner, for his escape will no doubt ground the

proper administration of justice to a halt.

I therefore, find that there is no merit in this application and is accordingly

dismissed.

Mabhikwa, Hikwa & Nyathi Legal Practitioners applicant’s legal practitioners

Attorney General’s Office respondent’s legal practitioners