Mutiba v Ndhlovu (HB 35 of 2006) [2006] ZWBHC 35 (10 May 2006)

Judgment No. HB 35/06 Case No. HC 42/06 XREF HC 405/06 NGONIDZASHE MUTIBA Versus STEVEN NDHLOVU And THE STATE IN THE HIGH COURT OF ZIMBABWE CHEDA J BULAWAYO 6 APRIL 2006 AND 11 MAY 2006 Advocate S. K. M. Sibanda for applicant Mr A. V Mabande for respondents Judgment CHEDA J: This is an application for bail pending review. The brief facts are that applicant is facing six counts of armed robbery in which he is alleged to have committed in the company of Amon Mike Ngulube and Simbarashe Tavengwa sometime in July 2005. Applicant who is currently on remand in custody at Khami Maximum Prison, Bulawayo appeared before a magistrate on a routine remand and applied that he be removed from remand which the Magistrate refused. HB 35/06 Mr Sibanda, for applicant advised me that applicant has been in custody since April 2005. Following the said refusal by the magistrate, appellant lodged an application for review. The said application has not been determined by this court. The basis of this application is that there are several irregularities, which were made by the court a quo in refusing to remove him from remand. Applicant has not been convicted yet, therefore, the principle of presumption of innocence until proven guilty operates in his favour throughout. The burden of convincing the court on a balance of probabilities that he is a suitable candidate for bail lies with him. The effect of the said irregularities if proved by applicant on review will result in the ruling of the court a quo of the 5th day of January 2006, being set aside thus setting the applicant free. It is pertinent to examine the effect of the granting of bail pending view. There are basically two results which may flow out of this application if he succeeds. Firstly, if granted bail and he succeeds in his application for review he will be set free, thereby rendering his application academic. Secondly, if the present application fails and the review application succeeds he will again be set free. Applicant’s approach, therefore, is an attempt to obtain a win­win result. He has a single objective in both applications, though, using two different procedures. While both procedures are available to him, I fail to understand why applicant has opted to use both procedures at the same time whose end result is the same. HB 35/06 Mr Sibanda argued that the hearing at the magistrate court is pregnant with a lot of irregularities which increases the chances of success of his appeal. This arguement unfortunately, does not adequately and honestly address applicant’s involvement in the six counts of armed robbery. Applicant no doubt has an explanation to give in relation to the firearm, the drums of fuel and other stolen motor vehicle parts and accessories found in his possession. The courts have on numerous occasions stated that the seriousness of a change alone is not reason enough to deny a suspect bail, an additional factor(s) is required. In my view, the need for an explanation by the applicant regarding his involvement in this matter, coupled with the length of prison term in the event of a conviction, is enough inducement for the applicant to abscond. In addition, it will not be in the interest of justice to grant him bail as this will render his review application being case number HC 405/06 meaningless as the court’s decision would have been final. Applicant if granted bail pending review is not likely to stand trial which defeats the time honoured requirement that a suspect must stand trial. The application is accordingly dismissed. S. K. M Sibanda and Partners applicant’s legal practitioner Attorney General’s Office respondent’s legal practitioner