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Auxilia Katongomara Chronicle Reporter
HIGH Court judge Justice Nicholas Mathonsi has slammed the police and the National Prosecuting Authority (NPA) for depriving accused persons their Constitutional right to bail without advancing concrete reasons.
Justice Mathonsi said the NPA must not oppose bail to accused persons who have not been found guilty as a pastime or for convenience.
The judge said this while granting bail to Bakani Khumalo, 32, of Sizinda suburb who was arrested with four others after being found in possession of five pieces of elephant tusks weighing 37 kilogrammes on November 8 this year.
The five were alleged to have unlawfully hunted and killed two male elephants at Mambo Bush along the Shangani-Inyathi road.
While the other four pleaded guilty, Khumalo denied, the crime, saying his only involvement was as a driver of the motor vehicle, thus he approached the court seeking bail pending trial, which was opposed.
Justice Mathonsi said the NPA and the police need to adapt to change and observe provisions of the New Constitution when conducting their duties.
He said it was wrong for the NPA and the police to just seek to keep suspects in detention without proffering compelling reasons or showing that there is a real danger or a reasonable possibility of prejudice to the administration of justice.
The judge said he had presided over a similar case in April where no tangible reasons where given for opposing bail.
“It’s time that both officers serving under the National Prosecuting Authority and members of the Zimbabwe Republic Police appreciated the ‘new world order’ under which the rights of the accused persons have received Constitutional recognition. An accused person can no longer be denied bail merely because the investigation officer says so, or because the state prefers to have him in custody for convenience,” said Justice Mathonsi.
The judge said accused persons have rights, including the right to be presumed innocent until proven guilty as provided for in section 70 of the Constitution.
“Care must be taken by the National Prosecuting Authority not to oppose the admission of those they’re prosecuting who haven’t yet been found guilty to bail as pastime. In terms of the constitution of this country before an accused person is refused bail there must be compelling reasons for doing so, not fanciful wishes of state counsel not justifiable by any measure,” said Justice Mathonsi.
In opposing bail, the state said the offence that Khumalo is facing is very serious and now prevalent.
It said the suspect was part of a well-coordinated syndicate and that all his co-accused were in custody.
The seriousness of the offence, the alleged overwhelming evidence against him and the likely severe sentence he faced, were also cited as factors that were likely to see him absconding if granted bail.
However, Justice Mathonsi said the state was opposing bail on grounds that were not only “legendary by their brevity but also tenuous indeed”.
The judge said the grounds of opposition by the investigating officer were also not helpful as the state did not make reference to them in its opposition.
“So it’s no longer business as usual for the police and indeed the prosecution because it’s now a fundamental right of any arrested person to be released pending a charge or trial except where compelling reasons for the continued detention exist. You don’t lackadaisically allege seriousness of the offence, or unsubstantiated risk of abscondment or that co-accused persons are in custody in order to deny a person a fundamental constitutional right,” said Justice Mathonsi.
He said the state must show compelling reasons for denial of bail. “Even before the ‘compelling reasons’ factor was invented the test was always whether there was a real danger or a reasonable possibility that the administration of justice would be prejudiced by the admission of an accused person to bail. The court has to be satisfied by reference to factors pointing to such real danger before denying an accused person bail,” said the Judge.
He granted Khumalo $150 bail with conditions that he continues to reside at his given address until the matter is finalised, surrenders his passport and reports to ZRP Tshabalala once a week on Fridays between 6AM and 6PM.
Khumalo is jointly charged with four others for contravening the Parks and Wildlife Act.
It is alleged that on November 7, 2015, Khumalo and his co-accused unlawfully hunted and killed two male elephants at Mambo bush along Inyathi-Shangani Road and took possession of elephant tusks weighing 37 kilogrammes.
They were intercepted and arrested the following day at Petro Trade Service Station in Kwekwe after their motor vehicle developed a puncture.
All the ivory was recovered following the arrest.
During the course of investigations two elephant carcasses, a rifle and 375 spent cartridges were recovered.
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