Magistrate Maphosa has reserved judgement on the request for bail for Jenni Williams and Magodonga Mahlangu until Friday 24th October as the “court is very busy”. Bail hearings are normally heard on an urgent basis. Williams and Mahlangu will therefore remain in Mlondolozi Female Prison until that date.
The bail hearing was heard in the absence of Williams and Mahlangu who had not been brought from Mlondolozi as prison authorities claimed that they had no fuel. This being despite the fact that the WOZA support team had been informed yesterday by one of the prison guards at Mlondolozi that they did currently have fuel. Two prison vehicles were also observed by the WOZA support team travelling at great speed into Bulawayo on Sunday afternoon.
The defence lawyer, Kossam Ncube, had also been given permission yesterday by a senior prison officer at Mlondolozi, Mathanire, to bring Williams and Mahlangu to court in his own vehicle if transport was not available. Upon arrival at Mlondolozi this morning however, Ncube was informed that it would not be possible after all by Superintendant Dlamini.
The hearing finally went ahead in their absence before Magistrate Maphosa. Prosecutor Chifamba called another state witness, Detective Sergeant Ncube from the Law and Order Section of Bulawayo Central Police Station to testify.
Ncube claimed he believed that bail should be denied because of pending cases against them, citing four different cases dating back to 2004. None of these cases are actually pending but the witness tried to claim this was because Williams and Mahlangu could never be found to be presented with their summons! On cross-examination however, he could not deny that the two accused had actually appeared in court for all of these cases. Following the cross-examination of the state witness by the defence, the court adjourned for lunch.
After lunch the magistrate heard the arguments of the two attorneys. The state had three main arguments: propensity, that the accused were of no fixed abode and that they had cases pending against them. Chifamba argued that the four cases mentioned by the state witness showed that the two accused had committed similar offences on several occasions and were likely to do so again. He claimed that the court should ignore the fact that these were not serious crimes. He also claimed that because the state witness had testified that he had tried on several occasions to locate the two at their homes, and they were not there at the time, obviously they did not live there. His third argument was that the case relating to a July 2007 arrest that is currently before the Supreme Court is pending and therefore Williams and Mahlangu wilfully lied to the court when asked if they had any cases pending against them.
In reponse, Kossam Ncube cited a 1922 judgement (States vs Shaw) that ruled that when arguing propensity, only convictions should be considered, not mere charges. He also cited a 1973 South African case (State vs Fourie) that ruled that with regard to propensity, only violent crimes should be considered. He went on to argue that neither Williams nor Mahlangu have ever been convicted of any crime.
With regard to the accusation of the two having no fixed abode, Ncube argued that there is no legal requirement for persons to remain at their given address 24 hours a day on the off chance that police may come looking for them. Just because Jenni Williams was not at home when police came looking for her last year does not mean that she does not live at the address that she has given. He also raised questions about the admissibility of police notes that the state had entered as evidence that police could not find Williams at her given address. The notes merely stated that summons could not be served, not the reasons why. The police officer who had made the notes was also not present in court. Ncube asserted that Jenni Williams and Magodonga Mahlangu had never defaulted on a court appearance and therefore did not constitute a risk, a fact that the state witnessed concurred with.
Ncube went on to argue that in fact none of the cases mentioned by the state are in fact pending as they had been removed off remand in all four cases. Williams and Mahlangu did not therefore mislead the court when they stated that they had no pending cases against them.
He also reminded the court that the alleged wrongdoing was not a very serious one and that to deny bail for an offence that carries the sentence of a fine would be prejudicial to the two accused.
Following the argument, Magistrate Maphosa pronounced that she would reserve her judgement until Friday 24th October at 11.15pm. Attempts by the defence to bring the ruling forward were rebuffed with the claims that â€˜the court is very busy.â€™
The on-going detention of Jenni Williams and Magodonga Mahlangu and the delaying tactics and machinations of the state are a clear violation of their rights and the power-sharing agreement signed by the political parties in September 2008. It is further evidence that ZANU PF has no desire to act in good faith.
WOZA therefore calls on all friends in the region and internationally to protest the ongoing detention of Williams and Mahlangu, particularly ahead of the SADC meeting on Zimbabwe next week.
Useful telephone numbers:
Bulawayo Central Police Station: +263 9 72515/61706/63061/68078
Mlondolozi Prison: +263 9 64228
Bulawayo Attorney Generalâ€™s Office: +263 9 77651/61603
Harare Attorney General’s Office: +263 4 781769/774586
Bulawayo Public Prosecutor: + 263 9 63173