THE High Court has dismissed an application by Prosecutor-General Kumbirai Hodzi that sought to revoke bail granted to notorious armed robber Musa Taj Abdul and two others.
Abdul, Godfrey Mupamhanga and Rudolph Kanhanga were granted bail last December, but were rearrested before posting their bail money.
PG Hodzi had argued that the prosecutor who handled the matter, Tapiwa Kasema, misguided himself and caused the judge to grant bail without considering the investigating officer’s attitude.
He claimed bail was consented to as a result of corruption. Justice Tawanda Chitapi said the PG’s application was unmeritorious.
“I determine that having taken into account all the documents filed on record and heard counsel in argument there is no merit in this application at all. Resultantly, the application is
dismissed. This type of application should not be made as a mere formality.
“It is not an easy application because in essence, the judge or magistrate is being asked to review his or her decision in an otherwise completed matter.
“Mere statements by the prosecutor as done in this case are not sufficient to establish a fact unless the factual allegation is admitted by respondent,” ruled Justice Chitapi.
The judge said the PG should have appealed against granting of the bail.
“The Prosecutor General clearly indicated that it was dissatisfied with the order. The remedy
was to file an appeal.
“Tis was not done then and has not been done to date. The Rule of Law requires both procedural and substantive fairness to be observed.
“Unfortunately, the adoption of a wrong procedure in this matter means that the dissatisfaction of the applicant and as the applicant states, of the public will remain so because the judgment by Justice Chikowero remains extant unless set aside by a judge of the Supreme Court on appeal,” reads the judgment.
The judge said Justice Chikowero did not just endorse the State’s consent, but also applied his mind to on the merits.
“In the response itself, Kusema indicated in his response that punctuated his position by clearly stating that bail could be granted if his concession finds favour with the court, which
means he left it to the court to make the final determination rather than to rubber stamp the consent.
“The State’s response, if given, does not mean that bail should inevitably be granted.
“I have to assume that the learned judge was aware of the above provision and did not just endorse the State’s consent by Kusema,” reads the judgment.
In opposing the application, the trio’s lawyer had submitted that the application must not succeed because all relevant information was included in the Form 242 during the initial bail application.
The lawyers argued that the State was fully aware of the application and had failed to prove that the trio was indeed a flight risk.
Abdul also disputed that they have been evading arrest for the past 20 years.