The court held that the onus in the bail application rested with the respondents but they were severely handicapped in that they were in captivity in a foreign land without legal representation. Granting them bail in the absence of vital information was not doing them a favour because it rendered them vulnerable on appeal.
The court held that such a disposition could easily compromise the ends of justice either way. Seeing that the accused were in custody and without legal representation it was incumbent upon the trial court to call for the verification of the respondents’ given residential addresses.
The court held in the case that it could not be said that justice was done and seen to be done when the presiding officer took the easy way out and granted bail in the absence of vital information which was readily available by way of a simple enquiry. As a result of the magistrate’s failure to make the necessary enquires it was not known whether the abused child was now in a safe place such that it could no longer be interfered with or whether the residents at the given addresses outside Tongogara Refugee camp were willing to accommodate the respondents.Â
The court held that the whereabouts of the witness allegedly intimidated by the respondents wasn’t known and what safeguards, if any, could be put in place to ensure that the witnesses’ own safety and the ends of justice were not compromised.
Criminal law; bail; bail considerations; requirements for granting of bail; constitutional law; Bill of Rights; rights of arrested persons; right to be represented; refugee(s)
On 1 April 2009 the 8 respondents appeared before the Magistrate sitting at Harare charged with defeating or obstructing the course of justice under s184 (1) (e) of the Criminal Law (Codification and Reform) Act [Chapter 9:23].
All the accused persons were Congolese refugees. They were alleged to have interfered with a witness who had reported a case of child abuse against a fellow refugee who had since been arrested under CR Hatfield 105/2/09. While investigations were still in progress the accused allegedly teamed up and approached the witness at her residence where they threatened her with unspecified action should she persist to implicate their friend. Owing to the alleged threats, the witness was said to be living in fear and was now uncooperative with the police.
The appellant opposed bail but the court held its reasons were unsubstantiated and therefore granted the accused bail to which it appealed.
The court held that a judicial officer had to not only ensure that justice was done but that it was seen to be done. In the case it could not be said that justice was done and seen to be done when the presiding officer took the easy way out and granted bail in the absence of vital information which was readily available by way of a simple enquiry.
The court held that the ends of justice could only be met by quashing the proceedings in the Magistrates Court to facilitate a proper enquiry before a fair and just decision could be made.
The court was required, as expeditiously as possible, to fulfill its function of safeguarding the liberty of the individual, while at the same time protecting the administration of justice and the reasonable requirements of the state.
A judicial officer must not only ensure that justice is done but that it is seen to be done.