Judgment No. HB 59/2003

Case No. HCB 13/2003

X-Ref HCB 234-5/2002

PAUL SIWELA

And

GEORGE MKWANANZI

Versus

THE STATE

IN THE HIGH COURT OF ZIMBABWE

CHIWESHE J

BULAWAYO 3 APRIL AND 22 MAY 2003

N Mathonsi for the applicants

Mrs M Cheda for the respondent

Bail Application

CHIWESHE J: The applicants who face charges under the Public Order

Security Act Chapter 11:17 were on 17 December 2002 granted bail by this court as

follows:

“It is ordered:

That bail be and is hereby granted upon the following terms and conditions:

That each applicant:-

1. Deposits with the Assistant Registrar of this honourable court the sum of $50 000,00.

2. Surrenders his travel documents to the Assistant Registrar of this honourable court.

3. Reports three times a week at Bulawayo Central Police Station, that is to say once every Monday, once every Wednesday and once every Friday between 0600 hours and 18oo hours.

4. Be and is hereby restricted in his movements, to an area within 40 km radius from the Bulawayo Main Post office.

5. Resides in the case of the first applicant at number 18 4^th Avenue, Woodville, Bulawayo and in the case of the second applicant at number 3998 Emganwini Suburb, Bulawayo.

The applicants seek an order varying the above bail conditions, specifically

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paragraphs 3 and 4 which according to them should be deleted.

In support of that application the first applicant argues that the said conditions

militate against the effective running of his business, the sole source of his income.

He runs a chemical company with business interests spread around the major urban

centres of Zimbabwe. He is presently unable to travel in pursuit of the business

interests. Further he argues that his parents are in Victoria Falls. They are

unemployed and solely dependent on him for their upkeep. Further he argues that as

he needs on many occasions to work out of town, his itinerary is disrupted by the need

to report at Bulawayo Central Police Station no less than three time per week. The

reporting conditions require that he travels to and from the police station. Neither fuel

nor reliable public transport is readily available for that purpose. He further argues

that these facts were unknown to the court at the time bail was granted. As such these

facts constitute a change of circumstances.

The second applicant is a teacher at Sizane Secondary School in Pelandaba.

He has applied for a position to head a school at Tsholotsho in order that he be near

his ailing parents. Should he be offered that post the present bail conditions would

prevent him from taking it up. Further he states that he is an ‘A’ level examination

worker and a resource person for English Literature. Both these roles require that he

travels around the country assisting teachers. He also is involved in the setting of

examinations and is required for that purpose to report at a central venue in Harare.

He cannot do so with the present bail conditions in force.

Further the reporting conditions mean that he has to abandon his class at

Sizane Secondary School in order that he reports at the Bulawayo Central Police

Station.

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These facts he argues were not before the court at the time that bail was granted and

as such they constitute a change of circumstances.

The respondents have opposed the application to vary the bail conditions. The

main reason for that contention is that it is not in the interests of justice that the

conditions be varied. In this regard it is argued that the conditions were set so as to

maintain law and order and the perceived threat to state security.

I will accept that at the time the bail conditions were set, the court did not have

at its disposal information as to the exact impact of the conditions on the lives of the

applicants. The court was however aware of the general impact of imposing

restrictions on the applicants’ movements and the reporting conditions. In that regard

it cannot be argued that because details of that impact have now been furnished, those

details alone constitute a change in circumstances. Alternatively put, if those details

had been given at the time, would the court have imposed the conditions that it did?

That question must be answered in the affirmative. Paramount in the court’s mind at

the time was the question of state security. The allegations against the applicants are

serious. Should they be true there is no doubt that their conduct could lead to a tribal

conflict whose consequences would amount to a serious threat to state security.

Balancing the rights of the applicants to their liberty against a breakdown of law and

order of that magnitude, it seems prudent that the applicants’ liberty be curtailed

pending trial. For that reason I see no reason why paragraph 4 of the bail conditions

should be tempered with.

I note however that despite the passage of time no trial date has been set. The

applicants have been complying with the bail conditions to the letter. It seems to me

that no prejudice would arise in the event that the reporting conditions were relaxed.

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The respondent is not opposed to a relaxation of the reporting conditions.

It is accordingly ordered as follows:

That the bail conditions set by this honourable court dated 17 December 2002

shall remain in force save for paragraph 3 thereof which is amended to read as

follows:

“3. Reports once every Friday of the week at Bulawayo Central Police Station between 0600 hours and 1800 hours.”

Messrs Coghlan & Welsh applicants’ legal practitioners

Attorney-General’s Office respondent’s legal practitioners