No S.C. 33\2002
Appeal No 69\2002
ATTORNEY-GENERAL v REMEMBER MOYO
COURT OF ZIMBABWE
MAY 17, 2002
for the appellant
for the respondent
ZIYAMBI JA, in Chambers, in terms of Rule 19 of the Supreme Court of
This is an
appeal by the Attorney-General against the grant of bail to the
respondent by the High Court, Bulawayo.
grounds of appeal were stated to be:-
the learned judge erred in granting bail to the Respondent when there
is strong evidence linking him to the offence which
is likely to
induce him to abscond - he was seen by witnesses kidnapping
Limukani Luphahla and was identified at an identification
the learned judge did not take due cognisance of the degree of
participation of the respondent in the kidnapping of both deceased
persons and their subsequent murder.
the judge erred in relying on what the Respondent stated on the
witness stand in the Spooner case.
the judge erred in ruling that, the notification to the court by the
appellants representative that he wishes to appeal
courts decision in terms of Section 121 of the Criminal Procedure
and Evidence Act [Chapter 9:07] as amended by
Act No. 8 of 1997 does
not suspend the bail order unless leave to appeal has been granted.
was no appeal as to the conditions on which bail was granted.
In appeals of
this nature this Court will be guided by the principles that the
grant of bail is discretionary and will, therefore,
only be set aside
if there has been an irregularity or material misdirection if the
exercised its discretion so unreasonably or improperly as to vitiate
its decision. See S
1986 (2) ZLR 145 (SC) at 146F.
was alleged by the appellant in its grounds of appeal:-
That the learned judge
misdirected himself by relying on the evidence led by the respondent
in a separate bail hearing in respect
of his co-accused Simon Direen
the learned judge erred in granting bail to the respondent when
there is strong evidence linking him to the offence which is
to induce him to abscond.
Spooner is one
of the persons charged together with the respondent with the murder
of Limukani and Nkala. At his bail application
the respondent gave
oral evidence as to how he was treated by the police after his
arrest. I agree with the learned judge that
the court was not
remiss in taking into account the respondents evidence given at
the earlier hearing. In any event, the evidence
of duress relied
upon by the learned judge in his judgment appears to have been quoted
verbatim from the statement filed by the respondent
in support of his
bail application and the court is entitled to take into account such
a statement in assessing the merits of a bail
misdirection alleged in the appellants heads of argument was the
courts reliance on the premise that the respondents
and those of his co-accused were inadmissible.
of one of the charges - the murder of Limukani - the appellant
stated his intention to rely on:
evidence of persons who saw the respondent in Lupane
statements of the co-accused
The strength of the State case is
one of the most important factors by which a court must be guided in
deciding whether it is in the
interests of justice to grant bail to
an accused person.
assessing the strength of the State case the court was entitled to
take into account the nature of the evidence against the respondent.
In terms of s 256 of the Criminal Procedure and Evidence Act an
unconfirmed warned and cautioned statement is only admissible in
evidence after it has been proved to have been made freely and
voluntarily. The evidence before the court was that the statement
was made under duress. The probabilities are that the admission of
the statement at the trial would be challenged.
regard to the statements of the co-accused persons, it is trite that
they cannot be used as evidence against the respondent.
evidence that the respondent was in Lupane, without more, can hardly
be construed as linking the respondent with the kidnapping
cannot be said that there was, before the court, strong evidence
linking the respondent to the murder.
As to the
likelihood of abscondment, the court found that the State had not
shown that it was justified in its fears that if granted
respondent would abscond. The court was of the view that there was
insufficient admissible evidence to link the respondent
murders on the two charges.
In my view
it has not been established that the court committed an irregularity
or a material misdirection or exercised its discretion
unreasonably or improperly as to vitiate its decision.
the appeal is dismissed.
Webb Low &
respondent's legal practitioners