S v Museko (HH 42 of 2004) [2004] ZWHHC 42 (24 February 2004)

HH 42-04 CRB B142/04 ELIAS MUSEKO versus THE STATE HIGH COURT OF ZIMBABWE CHITAKUNYE J HARARE, 25 February 2004 Bail Application Mr Mufadza, for the applicant Mr Godzi, for the respondent CHITAKUNYE J: The applicant was arrested on the 21st December, 2003. He is facing two counts of car theft. The offences are alleged to have occurred on the 25th March, 2003 and 2nd December, 2003 respectively. The applicant has been in custody since his arrest. The applicant contended that he is a good candidate for bail. The respondent opposed the application. The major contention seemed to be that the applicant is likely to abscond. In support of its contention the respondent referred to the nexus between the applicant and the car in the second count. In that count the applicant was found in possession of the car. That evidence according to the lst respondent enhances the likelihood of a conviction. As with most cases of theft of motor vehicles sentences seem to be long prison terms. Faced with the likelihood of a long prison term, the respondent argued that the applicant is likely to abscond. That submission must also be viewed in light of what is endorsed in form 242 for CRB 471/04. It shows that the applicant was found in possession of the car. Police had been looking for the applicant for some time. According to Section C of that form 242 police had been hunting for the applicant since March 2003. After information was passed that he HH 42-04 CRB B142/04 was wanted by the police the applicant went on the run until his arrest in December 2003. In June of that year, the motor vehicle was recovered by the police from applicant's employee. Despite the knowledge that the motor vehicle had been impounded by the police the applicant remained on the run. It is not the norm that when a motor vehicle one innocently acquired is impounded by the police one does not attempt to recover it. Clearly the applicant was evading the police. It is in the light of the above conduct that the court is being asked to grant the applicant bail whilst the respondent opposes the granting of bail. The applicant indicated willingness to abide by any conditions that may be imposed. It must however be read together with applicant's past conduct. It is not unusual for those on set conditions to abscond. If anything the trend of persons facing serious offences absconding whilst on bail is on the increase. It is not so much the number of conditions that ensure that he does not abscond but the attitude of that person towards such conditions. I am of the view that in the present case the interests of justice demand that bail be refused. The application for bail is thus dismissed. Mufadza and Associates, legal practitioners for the applicant. Attorney-General's Office, legal practitioners for the respondent.