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Harare Magistrate Ngoni Nduna reserved his ruling on whether he will grant or deny grieving acting Harare city planner, Fani Machipisa bail after both the State and his Defence finished giving their submissions Friday.
Machipisa lost his mother yesterday morning when he initially appeared before on allegations of parceling out stands without following due process after being arrested on Wednesday.
After their submissions Nduna said he would try to make time for the bail ruling to be handed down by end of day although he was not sure if it could happen due to his work load.
He told his lawyer Professor Lovemore Madhuku that he will be advised through the clerk of court if he makes it, but failure to that, Machipisa would have to remain in custody until Monday next week when the ruling would be ready.
“I will advise you through the clerk of court if I am able to hand it down by end of day. The accused will be summoned to appear before me when it is ready. If I am unable to do so, the ruling will be handed down on Monday October 12, 2020,” Nduna said.
Professor Madhuku told the court that the State’s reasons in opposing bail were are not forceful and convincing so as to make the court feel very strongly that Machipisa should not be released on bail.
He stated that there must be real and cogent grounds that meet the high standard set by the Constitution for the court to deny him bail.
“Bail must not be denied on flimsy grounds and it is a Constitutional right which requires the State to prove controversial circumstances for it to deny bail. The State’s opposition of bail in this case shows that it is not paying due regard to the Constitution,” Madhuku said.
On suspicion of abscondment which the State feared, Madhuku submitted that the mere seriousness of an offence cannot establish abscondment.
“The seriousness of an offence can only be factored in if the State places the strength of its case before the court not only basing on the name of the offence. The State failed to establish what is required by law to constitute that Machipisa would abscond. In this regard the grounds of abscondment have not been established.”
Madhuku said all the reasons that were submitted by the State against granting of bail did not fulfill section 117 (3) (c) of the Criminal Procedure and Evidence Act which provides six mandatory grounds that ought to adhered to in denying bail, but used only one.
He said his client must be granted bail which would be in the interests of justice also basing on compassionate grounds since he lost his mother yesterday and needed to be present for her burial as the eldest in the family.
Madhuku also urged the court to take judicial notice in the interest of justice pertaining to all those who have so far been hauled to court on related charges Machipisa is also facing.
“Most of those arrested over the City of Harare land deals or related offences have all been granted bail after being arrested,” he said.
The state led by Constance Ngombengombe had relied on the facts that was a flight risk and was likely to abscond given that he was facing a serious offence which attracted a custodial sentence upon conviction and that he would likely interfere with State witnesses.
Madhuku proposed that Machipisa be granted $10 000 bail, report once every Friday at Marlborough police station, reside at his given address, not to interfere with State witnesses and that he surrenders his passport. Nhau/Indaba
