Judgment No. HB 57/2003
Case No. HCB 243/2002
JOHN RAPHAEL MASUKU
IN THE HIGH COURT OF ZIMBABWE
BULAWAYO 11 AND 17 APRIL 2003
J Jamesfor the applicant
S Musonah for the respondent
NDOU J: The applicant is currently facing 19 counts of theft of motor
vehicles and one count of robbery of a motor vehicle. The trial commenced before us
in October 2002. The applicant had prior the commencement of this trial, been in pre-
trial incarceration and the facts and the circumstances appear in HB 32/2001, HH
79/2002 and SC-59-02. We have heard evidence from a number of witnesses since
the commencement of the trial. One can confidently say we have gone past the half
way mark of this trial. The applicant applies for bail pending the completion of the
trial. The state opposes this application on the basis, first, that the applicant will
abscond, and second, that the applicant will interfere with evidence or witnesses. The
three judgments referred to above were handed down before the trial had commenced.
This time around we have heard a lot of witnesses. I am, therefore, in a unique
position to consider whether, at this stage the interests of justice demand that I admit
the applicant to bail. In short, the circumstances have changed since the previous
application (and subsequent appeal to the Supreme Court). I am, therefore at liberty
to consider this bail application.
It is trite that in such applications the court has to strike a balance between the
interests of the society (i.e. the applicant should stand trial and there should be no
interference with the administration of justice) and the liberty of an accused person
(who pending the outcome of his trial, is presumed to be innocent) – see Ndlovu v S
HH-177-01; Attorney-General, Zimbabwe v Phiri 1988 (2) SA 696 (ZHC); R v
McCarthy1906 TS and S v Mhlawuli & Ano 1963 (3) SA 795 (C) at 796B. Although
these cases were dealing with bail applications before the commencement of trial, the
principles are of equal application even in cases of this nature where the trial has
commenced but the matter is pending finalisation. The onus is, therefore, upon the
applicant to prove on a balance of probability that the court should, in light of the
evidence led thus far, exercise its discretion in favour of granting him bail. In
discharging this burden, the applicant must show that the interests of justice will not
be prejudiced. He has to show that it is likely that he will stand trial or that he will
not interfere with the administration of justice – see De Jager v Attorney-General,
Natal1967 (4) SA 143 (D) and section 116(7) of the Criminal Procedure and
Evidence Act [Chapter 9:07].
The main thrust of the application is based on the quality of the evidence led
by state so far. First, it is contended that the evidence led thus far is circumstantial.
Second, a number of apparent discrepancies were pointed out from the totality of the
evidence. It is beyond dispute that there are obvious discrepancies is some of the
witnesses’ testimony led in some of the counts. Equally, there are other witnesses
where no obvious discrepancies exist. At this stage all I can say is that some of the
discrepancies pointed out appear to be material whilst others appear to be immaterial.
It is trite that the assessment of the credibility of the witnesses is the province of the
trial court. In casu, this would include the gentlemen assessors. It is, therefore, not
feasible for me to make a finding on the demeanour of the witnesses and in
consequence thereof grant bail to the applicant. To do so would amount to
assessment of the evidence piece-meal. The evidence has to be evaluated in its proper
perspective. I, however, agree that the strength of prosecution case (and the
probability of conviction) is a factor in such applications – see S v Lulame 1976 (2)
SA 204 (N) and S v Hartman 1968 (1) SA 278 (T) at 281.
At most, what we have so far is that in some counts the state case is not
sustainable. In other counts, depending on our assessment of the evidence, the case
may be sustainable. Although evidence led so far does not directly incriminate
applicant, there seems to counts where the doctrine of recent possession may be
I agree that the prosecution had problems in securing witnesses and at some
stages this occasioned postponements. In this regard I would once more emphasise
that those representing the state should always bear in mind that criminal justice
begins at the corridors of the offices of the Attorney-General. While the officers in
Attorney-General must consult investigating officers, they should however, jealously
guard their independence. They should act fairly to the police and to accused persons.
Although the case had a less than ideal start we appear to have eventually covered a
lot of ground. Looking at the totality of the evidence led so far and what I have said
above there is a cognisable indication that it is not in the interests of justice to admit
the applicant to bail at this stage.
In the result the application is dismissed.
James, Moyo-Majwabu & Nyoniapplicant’s legal practitioners
Attorney-general’s Officerespondent’s legal practitioners