Judgment No. HB 96/2004
Case No. HCB 39/2004
FLETCHER DULINI NCUBE
IN THE HIGH COURT OF ZIMBABWE
BULAWAYO 15 JUNE & 1 JULY 2004
J Tshumafor application
No appearance from respondent
CHEDA J: This is an application for a variation of bail conditions. Applicant together with 6 others is charged with murder. The trial has reached an advanced stage. On 25 March 2004 under case HB-20-04 a similar application was made before me and I ruled that the application be placed before my sister MUNGWIRAJ who is the trial judge. It seems she was unable to hear the application as she left for the United Kingdom for medical treatment. It is for this reason that this application has found its way back to me for consideration.
The first point I would like to deal with is that of the non appearance of respondent. Applicant through his legal practitioner filed a notice of set down on 10 June 2004 and it was served on respondent (Attorney-General’s Office, Bulawayo) on 14 June 2004 at 1430 hours. However, nobody appeared on behalf of respondent nor was an apology sent to the Registrar’s office for the Attorney-General’s inability to attend the hearing. The matter was heard on 15 June 2004 at 10.30a.m. This type of conduct on the respondent’s part is not viewed in good light by these courts if respondent had other prior commitments it should have at least appeared and sought a postponement.
Mr Tshuma for applicant has submitted that applicant requires his passport in order for him to travel overseas to see his children. He further argued that the circumstances have since changed mainly in that:-
the trial has taken long to complete;
that the ruling on the trial-within-a-trial has drastically destroyed the state evidence against him; and
that his co-accused have since been granted bail.
These submissions by Mr Tshuma are indeed sound. The trial has indeed taken long to be finalised. This however, was not due to respondent’s fault but to the fact that the trial judge fell ill during the trial. While it may be said that the ruling on the trial-within-a-trial has reduced the potency of the state case, sight should not be lost that the trial has not been finalised and hence no verdict has been passed by the trial court.
The issue of applicant’s freedom to travel which indeed is his right should be looked at together with that of the need for the proper administration of justice.
Applicant’s desire to travel is to visit his children. In the absence of any averments to the contrary, I presume that they are alive and well. The situation would have been entirely different if the need to travel was necessitated by either their illness or death or even his own quest for medical attention. The court, therefore should look at the reason for the travel and balance it against the possible frustration of the administration of justice should he abscond after his passport has been released to him. In my view the court should not release a person’s passport if he is likely to abscond.
Where a person faces a serious charge and where punishment after conviction is likely to be severe, the risk of abscondment is always present – see S v HO 1979(3) 738 at 740.
In casu, applicant is already on bail with stringent conditions. His co-accused were up to 16 April 2004 in custody but have since been released on bail in case HB-194-04 on certain conditions.
It is noteworthy that one of the bail conditions is that they surrender their travel documents. Weighing applicant’s needs for the passport and that of ensuring the proper administration of justice, I am of the view that the need to safe guard the interest of justice requires that the court ensures that he stands his trial and the release of his passport for a leisurely visit will defeat that purpose.
Although the respondent did not either appear or apologise for its failure to attend it is on record that on 17 February 2004 they filed their response to this application wherein they stated that they are not opposed to the variation of bail conditions in as far as the reporting conditions are concerned but were opposed to the release of his passport. For the reasons statedsupra I agree with their submissions.
Accordingly, the application to uplift the passport is dismissed but the application regarding the reporting conditions succeeds and is varied as follows:
That applicant reports once a month on every Monday of the first week of each and every succeeding month from the date of this order between the hours of 8.00am and 8.00pm at Hillside Police Station, Bulawayo.
Webb, Low & Barry applicant’s legal practitioners