Judgment No. HB 51/15
Case No. HCB 12/15
HIGH COURT OF ZIMBABWE
BULAWAYO 24 FEBRUARY AND 12 MARCH 2015
V. Chikomo for the applicant
T. Makoni for the respondent
MOYO J: The applicant in this matter is facing five counts of Robbery and another two counts of robbery (carjacking). The offences were allegedly committed between June and December 2014. An application has been made to the court a quo for applicant to be examined in terms of the Mental Health Act [Chapter 15:12]. It is submitted in applicant’s statement for bail that applicant is of feeble mind. In such cases the court has to adopt an approach of balancing the accused’s interests with those of the administration of justice.
In the case of Jongwe vs S SC 62/02 it was held that when assessing the risk of an applicant to bail absconding before trial, the court will be guided by the character of the charges and the penalties which in all probability would be imposed if convicted, the strength of the state case, the accused’s ability to flee to a foreign country and the absence of extradition facilities. The most critical factors being the nature of the charges and the severity of the punishment likely to be imposed upon conviction and also the apparent strengths and weaknesses of the state case.
There is need for the court to assess the strength of the state case, there is also need for the accused to rebut the allegations and show that he should be granted bail.
In S vs Makamba SC 30/04. It was held that if the affidavit of the investigating officer raises a prima facie case against the accused, in such circumstances an applicant would be expected, in attempting to discharge the onus on him, to either deny the allegations, or to place before the court such information as would tend to establish his innocence, or to show that even if he were to be convicted the likely penalties were not such as to present a temptation for him to abscond, or to show that the interests of justice would not be prejudiced by his release on bail.
In Ndlovu vs S 2001 (2) ZLR 261 (H) it was held that in deciding whether there is a risk of absconding the court should consider such factors as the seriousness of the offence, the likely sentence and the incentive to abscond. It was also stated in that case that it may be desirable for the applicant to disclose his defence and not merely make a bold statement that he is not guilty of the offence. Such a defence is of great, and often of decisive importance in the exercise of the court’s discretion. In this case the accused faces 7 charges of robbery and carjacking. It is alleged that he is of feeble mind, an examination has been sought for him under the Mental Health Act, [Chapter 15:12]. His fingerprints were uplifted at the scene of crime. On the request for remand form, it is stated in relation to the accused person who is the applicant before this court, that the fingerprints uplifted at the scene match those of the applicant, and that applicant has made certain indications which link him to the offences. Applicant is of unstable mental standing this is evidenced by paragraph 22 of the applicant’s statement to bail wherein it is stated thus:
“Derick Nkala knows applicant to be of a feeble mind, who is easily intimidated to admit to things he did not do if put under pressure. Derick knew that if he implicated the applicant, the applicant would in all probability admit to crimes applicant did not commit.”
Whilst it does not make sense why Derick would seek to name the applicant as a co-accused for the sake of him being capable of admitting to crimes he did not commit, it is important to note that this paragraph shows that applicant does not take decisions of his own accord, he is subject to other people’s influences as he is of a feeble mind. It is imperative in my view that he remains in custody until when a full report has been submitted on the state of his mental health. From the contents of the aforestated paragraph one wonders if applicant would understand the concept of bail and the fact that he has to adhere to the given conditions pending trial. It would be in the interests of justice in my view that applicant’s mental status be tabulated before the court, so that the court makes an informed decision regarding the issue of bail as well as for the court to discern if the applicant appreciates and understands what is expected of him in the circumstances if he is admitted to bail. Also, applicant’s fingerprints were uplifted from the scene, this, coupled with the number of counts he is facing, even if the mental examination would show that he is appreciative of what is obtaining in bail matters, the risk of absconding would still be high in my view. The charges he faces are serious and are of numerous counts with heavy penalties if he is convicted. He has been linked to the offences through the uplifted finger prints. I do not hold the view that it would be in the interests of justice to allow applicant bail pending trial for the aforegoing reasons.
I accordingly dismiss the application with costs.
Messrs Majoko and Majoko, applicant’s legal practitioners
National Prosecuting Authority, respondent’s legal practitioners