HIGH COURT OF ZIMBABWE
HARARE, 29 April 2011
Application for Alteration of Bail Conditions
B.T. Mtetwa,for the applicant
E. Nyazamba,for the respondent
MUTEMA J: The applicant is a South African national. He is on bail together with three accused South African nationals on allegations of fraud involving US$1 million. The alleged principal perpetrator, one Ping Sung Hsieh, is in South Africa awaiting extradition to this country. His extradition hearing is scheduled for 14 June, 2011.
On 28 February, 2011 OMERJEE J granted the applicant and his co-accused bail pending trial. The bail order reads as follows:-
“1. The applicant to deposit $500 with the Clerk of Court Harare Magistrate Court.
2. The applicant resides at No. 4 Dromore Road, Highlands, until this matter is finalised.
3. The applicant reports at Highlands Police Station twice each day once between 8 a.m. – 12 p.m, once between 3 p.m. – 6p.m. daily.
4. The applicant’s passport shall be surrendered by the C.I.D. Law and Order Section to the Clerk of Court, Harare Magistrates Court.
5. The 3 trucks and trailers shall remain parked at ZRP Support Unit Chikurubi until this matter is finalised”.
On 10 March, 2011 the applicant and his co-accused applied before a magistrate to have the above bail conditions altered. The magistrate declined jurisdiction and the matter came before KUDYA J on appeal. The draft order sought for the alteration of the bail conditions was couched in these terms:-
The appellants’ bail terms and conditions be varied as follows:-
Each appellant deposit with the clerk of Court a further US$500-00.
Each appellant reside at his usual residence in South Africa pending the finalisation of this matter.
Each appellant’s passport be returned to him and each appellant be and is hereby authorised to return to South Africa
The first appellant (Bilal(‘s Toyota Fortuner Motor Vehicle registration number BIL 786 GP be returned to him
The trucks and trailers remain in Zimbabwe as stated in the original bail order.
The appellants return to Zimbabwe for trial on 20 June 2011.
KUDYA J dismissed the appeal for alteration of bail conditions.
In the present application the draft order sought is in these words:
IT IS ORDERED THAT:
The order admitting applicant to bail dated 28 February 2011 be and is hereby amended as follows:-
By the deletion of para 2 and the substitution of the following:-
“2. The applicant be and is hereby authorised to travel to South Africa immediately upon the granting of this order and may remain in South Africa, pending the commencement of his trial in matter number CRB 1626-9/11”
By the deletion of para 3 and the substitution of the following:
“3. The applicant is directed to return to Zimbabwe to attend his trial scheduled to commence on 20th June 2011 and shall upon his return to Zimbabwe reside at No. 4 Dromore Road, Highlands, Harare until this matter is finalised”.
By the deletion of paragraph 4 and the substitution of the following:
“4. The Clerk of Court, Harare Magistrates Court is directed to release the applicant’s passport to him immediately”.
By the inclusion of the paragraphs 5 and 6 as follows:
“5.The applicant is directed to commence reporting to Highlands Police Station twice each day once between 08.00 a.m. and 12.00 p.m. and once between 3 p.m – 6 p.m. daily. 5.00 (sic) upon his return to Zimbabwe”
“6. The applicant shall surrender his passport to the Clerk of Court, Magistrates Court upon the applicant’s return to Zimbabwe”.
The application is argued to be predicated on humanitarian grounds. Those grounds are that applicant’s wife Nazmeera Ebrahim, with whom he has two children aged five years and eight months old respectively, is seriously ill. She was diagnosed with cancer last year and was also diagnosed with heart problems necessitating a heart transplant. Her condition is now dire. Although opportunities for a transplant have been received in applicant’s absence there is no one to take the lead as head of the family. This has frustrated the wife to the extent of refusing to attend at the doctor’s rooms preferring to die if necessary, if applicant does not return to South Africa. In addition, the two minors have no one to look after them. Applicant has been advised by the medical team and members of his family that the longer he remains in Zimbabwe the higher the likelihood of his wife dying as her chances are reducing daily when there is no one to sign all the relevant and necessary documents for the heart transplant.
Two supporting documents- annexures “A” and “C” – were attached to the application. These are respectively a letter and an affidavit from his wife’s medical team.
The respondent opposed the application on two main planks, viz that the humanitarian reasons proferred have no basis at law as they do not in any way save the interests of justice and that applicant, if allowed to leave this Court’s jurisdiction, will never be seen again since he is a peregrinus.
Now, in terms of subsection (1) s 126 of the Criminal Procedure and Evidence Act, [Cap 9:07] conditions of a recognizance can only be altered or added to if necessary or advisable in the interests of justice. Incasu the alteration of or addition to the bail conditions being sought is premised solely on humanitarian grounds. The question for my resolution is whether the grounds advanced are in the interests of justice. I have not been able to find any authority and none has been cited by the applicant showing that humanitarian grounds such as the ones given in the instant case fall within the ambit of the phrase “in the interests of justice”. Such moral or humanitarian considerations have no place in our bail jurisprudence for every accused person denied bail has a moral or humanitarian crisis consequent to him/her.
The supporting documents attached to the application are in fact inadmissible for falling foul of r3 of the High Court (Authentication of Documents) Rules, 1971. They have not been authenticated by the class of people mentioned in that Rule. The Rule stipulates that any document executed outside Zimbabwe must be authenticated by a notary public, mayor or person holding judicial office or head of the Zimbabwean diplomatic mission etc.
Annexure “A” reflects the author’s signature, is a fax copy and has no authentication. Annexure “C” is also a fax copy of Professor Essop’s affidavit deposed to before one Paul Frederick Mills, an ex officio justice of the peace who is a retired lieutenant colonel of the South African Police, The original affidavit was produced during the hearing but it did not help applicant’s cause. It too is not authenticated, In fact, on both the original and fax copy the words notary public appearing on the portion for the commissioner of oaths signature are deleted. Counsel for the applicant in vain argued that the line drawn across those words is not a deletion but part of the notary public’s signature. However, it does not require a questioned document examiner to tell, at first sight, that those words were crossed out, meaning that the commissioner is not a notary public. In any event, buttressing the above finding is the absence of a notary public’s seal.
The net effect of the inadmissibility of the supporting documents is that the humanitarian reasons advanced by the applicant are just a bald or naked assertion. The Court cannot obviously accept his mere say so. Even if those documents were admissible the result would still be the same in that the reasons proferred are clearly not in the interests of justice and also it cannot be true that applicant’s presence is the sole sine qua non for his wife’s surgical operation to take place. The patient can herself authorise the operation or any family member can do that or even a court of law if the worst comes to it.
Regarding the issue of flight risk, I have no difficulty in associating myself with KUDYA J’s sentiments in his judgment of 18 March, 2011. He said,
“It seems to me that their appeal strikes at the heart of the due administration of justice. They are seeking to be released on the strength of their word that they will return on 20 June, 2011 to face trial. The local law enforcement agents would not be able to apprehend them if they decide to default. This court would have to rely on the magnanimity of the South African Law enforcement agents to arrest them. The South African Police Service’s magnanimity would depend on the complex extradition procedures in their country. Indeed the extradition of Ping has proved to be an arduous process. It would delay the due administration of justice unnecessarily ….. I cannot simply agree to abdicate my jurisdiction in favour of foreign processes over which the High Court of Zimbabwe does not have any control or influence”.
The applicant has failed to persuade me to believe his mere say so as his bond that he will return to face trial once his is given leave to return to his country of origin. The probabilities are not in his favour.
In the event, the application sought for the alteration of bail conditions be and is hereby dismissed.
Mtetwa & Nyambirai,applicant’s legal practitioners
Criminal Division of the Attorney General’s Office,respondent’s legal practitioners