Judgment No. HB 44/2004 Case No. HCB 61/2004
IN THE HIGH COURT OF ZIMBABWE
BULAWAYO 11 & 25 MARCH 2004
Mthombenifor the applicant
H S M Ushewokunze IIIfor the respondent
Bail Pending Trial
CHIWESHE J: In this bail application the point to be determined in limine is whether the provisions of the Presidential Powers (Temporary Measures) (Amendment of Criminal Procedure and Evidence Act) Regulations 2004 (Statutory Instrument 37 of 2004) can be invoked given the facts of this case.
These regulations amend section 32 of the Criminal Procedure and Evidence Act [Chapter 9:07] in subsection 2 by the repeal of the proviso thereto and the substitution of the following:
“Provided that if the person arrested without warrant is charged with any offence referred to in paragraph 10 or 11 of the Third Schedule –
the judge or magistrate before whom he is brought in terms of this section shall not decline to order his further detention or to issue a warrant for his further detention solely on the basis that there are no prima facie grounds for the charge, and no court shall admit such person to bail for a period of seven days from the date when an order or warrant for his further detention was issued in terms of this paragraph; or
and the judge or magistrate before whom he is brought in terms of this section is satisfied that there are prima facie grounds for the charge, the judge or magistrate shall order his further detention or issue a warrant for his further detention for a period of twenty-one days (unless the charge is earlier withdrawn) and no court shall admit such person to bail for a period of fourteen days from the date when an order or warrant for his further detention was issued in terms of this paragraph.”
These regulations further amend the Third Schedule (“Offences in respect of which Power to admit Persons or Qualified”) of the Criminal Procedure and Evidence Act [Chapter 9:07] by the insertion of a new paragraph 11 which relates to serious economic offences. Contravention of the provisions of the Prevention of Corruption Act [Chapter 9:16] is specified as a serious economic offence thereunder.
The applicant appeared before a magistrate on 2 March 2004 on initial remand. The charge preferred for that purpose was “contravening section 4 of the Prevention of Corruption Act, Chapter 9:16. Alternatively defeating or obstructing the course of justice”. The state indicated to the magistrate that the magistrate’s hands were fettered in respect of bail, citing the provisions of Statutory Instrument 37 of 2004 which precluded the magistrate from granting the applicant bail. Accordingly the applicant was for that reason remanded in custody.
Mr Mthombeni (for the applicant) argues that in refusing to entertain the question of bail the magistrate misdirected himself because the facts upon which the state relied at the time do not disclose a contravention of the provisions of the Prevention of Corruption Act [Chapter 9:16]. Instead they tend to support the alternative charge preferred, namely, defeating or obstructing the course of justice or an attempt at such. Since the alternative charges have not been specified for purposes of Statutory Instrument 37 of 2004, the provisions of the same cannot be invoked to deny the applicant the opportunity to seek bail pending trial. I agree with Mr Mthombeni in that regard. Mr Ushewokunze (for the respondent) seemed to have been under the
impression that any misconduct committed by a public official in the course of his duties qualifies as a prima facie contravention of the provisions of the Prevention of Corruption Act. In this stance he relies on the provisions of section 4 of that Act. It appears to me that in doing so Mr Ushewokunze has overlooked an important provision in that section. Section 4 of that Act reads:
“4. Offences by public officers
If a public officer, in the course of his employment as such –
does anything that is contrary to, or inconsistent with his duty as a public officer; or
omits to do anything which it is his duty as a public officer to do;
for the purpose of showing favour or disfavour to any person, he shall be guilty of an offence …” (my own underlining)
The facts as outlined by the state do not suggest that the applicant’s actions were for the purpose of showing favour or disfavour to anyone. The facts are given as follows:
The applicant is a Senior Immigration Officer. He is the officer-in-charge of the Victoria Falls Border Post. The applicant stole an immigration security item register. In this register are recorded all “Visa Sticker Books” and receipt books. These books were due to be examined by internal auditors from the Ministry of Home Affairs. The audit was to be the prelude to police investigations into alleged mismanagement of funds and under receipting of visa fees. The “visa sticker books” have also disappeared from the immigration town office at Victoria Falls. As a result the audit inspection cannot be carried out. The visa sticker books have a face value of $615 000,00. These are the facts as alleged by the state.
There is no allegation that the applicant acted for another person in return for any consideration for example. It is clear that from these facts the most that could be
said of the applicant’s conduct is that he removed these books in order to frustrate the audit inspection. That in itself if proved would no doubt constitute serious misconduct in respect of which the applicant may well be convicted of the alternative charges cited by the state. I do not think that the facts as they stand can ground a charge under the Prevention of Corruption Act.
Section 4 of that Act must be read with section 3 of the same. Section 3 deals with what are termed “corrupt practices” and is an essential guideline when preferring charges under section 4.
For these reasons I am of the view that the learned magistrate misdirected himself in coming to the conclusion that the charge of corruption is properly preferred given the facts and that as a result Statutory Instrument 37 of 2004 could be properly invoked. A charge which is at variance with the facts which purport to sustain it cannot stand.
Accordingly I am of the view that the applicant is at liberty to pray for bail. I will proceed to consider his prayer.
The applicant has been in custody since 25 February 2004. He is diabetic and requires constant medical treatment. He is married with children. He has dependants including his mother. He owns a house in Marlborough, Harare. The house is valued at 90 million dollars. The applicant is prepared to surrender his travel documents and to report to the police twice per week if ordered to do so. He can raise bail in the region of $200 000 - $300 000. He denies the charges laid against him.
The state opposes the grant of bail on the grounds that the applicant may interfere with evidence, that he is facing a serious charge and that he may abscond and not stand trial.
Weighing all the circumstances of this case I am of the view that the balance of probabilities would favour the grant of bail with appropriate conditions.
It is therefore ordered as follows:
That bail be and is hereby granted on the following terms and conditions:
The applicant deposits the sum of $200 000,00 with the clerk of the Magistrates’ Court, Victoria Falls.
The applicant reports twice per week at Victoria Falls Police station on Mondays and Wednesdays between 0800 hours and 1800 hours.
The applicant surrenders his travel documents to the Clerk of the Magistrates’ Court, Victoria Falls.
The applicant shall not interfere with investigations or witnesses.
The applicant is prohibited from entering his place of employment.
Kenneth Lubimbi & Partnersapplicant’s legal practitioners
Attorney-General’s Officerespondent’s legal practitioners