Bail re: Bail Pending Trial iro Approach, Constitutional Right to Bail & Denial of Bail in the Interests of Justice

HH47-09 : THE STATE vs KISIMUSI E.DHLAMINI and GANDHI MUDZINGWA and ANDRISON MANYERE
Ruled By: BHUNU J

In denying the applicants in that case bail, the learned judge cautioned the State to expedite its investigations as his refusal to grant the applicants bail at that juncture did not mean that they could stay in prison forever.

HH168-12 : RONALD ROORAI SAMBO vs THE STATE
Ruled By: MATHONSI J

This is an application for bail pending trial which was only filed on 15 March 2012, when the applicant and his co-accused were arrested on 12 September 2010. The applicant says he once filed a bail application but withdrew it. They allegedly made indications which led to the recovery of the firearms and getaway vehicle.,. The applicant has remained in custody since that time.,. The applicant is facing a charge of murder and his trial has been set for 14 May 2012 in this court.

The applicant., submitted that three dates have been given for their trial previously, but on each occasion the trial has failed to take off. He attributes the failure to try them to the fact that the State has no case against them. He further submitted that the State is relying on indications which were induced by assault as well as warned and cautioned statements which were not made freely and voluntarily. In his view, he has no incentive to abscond as he would like to clear his name and expose the violence being used by the police against accused persons.

The State submitted that the trial of the applicant has been set to commence on 14 May 2012 and that the applicant is a flight risk given that there is overwhelming evidence against him and his co-accused. As he is facing a serious charge, where capital punishment may be imposed, this will act as an incentive for abscondment.

Prima facie, the State case against the applicant is very strong, what with the indications that were made by his co-accused which led to the recovery of the weapon used in the commission of the crime and the fact that the applicant was fingered by his co-accused.,. The applicant also admits having given an incriminating warned and cautioned statement which he intends to challenge at the trial. Whether he will succeed in his endeavour is a matter for another court and not the present inquiry.

That the applicant faces a serious charge is self-evident. The application, therefore, turns on the risk of abscondment.

In., the Supreme Court set out considerations for abscondment as follows:

".,. In judging the risk that an accused person would abscond, the court should be guided by the following factors:

(i) The nature of the charge and the severity of the punishment likely to be imposed;

(ii) The apparent strength or weaknesses of the State case;

(iii) The accused's ability to reach another country and the absence of extradition facilities from the other countries;

(iv) The accused's previous behavior;

(v) The credibility of the accused's own assurance of his intention and motivation to remain and stand trial."

I have already stated that the case against the applicant is very strong and that the charge he is facing is serious indeed. The applicant is a sophisticated person who was a police officer at the time of the alleged offence and would have little difficulty reaching another country. I am not swayed by his assurances that he would like to have his day in court in order to expose the brutality against accused persons being perpetrated by our police force. It is not clear when he underwent this damascene transformation, he having been a member of the force until his arrest. Indeed, if convicted, the applicant is likely to be sentenced to a lengthy prison term, if not to capital punishment. The considerations will certainly act as motivation for abscondment.

In any event, this application is coming rather late in the day when the applicant's trial is a month away and yet he has not been bothered to apply for his release all this time since he was arrested. When he should be biding his time for his day in court he now actively agitates for his release, raising the probability that he will not stand trial. I conclude, therefore, that the applicant is not a good candidate for bail.

Accordingly the application is dismissed.

Appealed SC07-12 : TUNGAMIRAI MADZOKERE and LAZARUS MAENGAHAMA and STANFORD MAENGAHAMA and PHINEOUS NHATARIKWA and STANFORD MANGWIRO and YVONNE MUSARURWA and REBECCA MAFUKENI vs THE STATE
Ruled By: MALABA DCJ

The question for determination is whether, on the facts available and regard being had to the presumption of innocence to which the appellants are entitled, was the court a quo justified in finding that there was a likelihood that they would not stand trial if released on bail - even with stringent measures to ensure close monitoring by the police. Only if the finding is justified by the available evidence can it be said that the likelihood of the appellants not standing trial, if released on bail, is a relevant and sufficient ground for depriving the appellants of their liberty pending trial in terms of section 117 of the Criminal Procedure and Evidence Act [Chapter 9:07].

In Aitken & Another v Attorney General 1992 (1) ZLR 249 (S), it was held that in deciding whether an accused person would abscond if released on bail the following factors constituted a useful guide:

(i) The nature of the charge and the severity of the punishment likely to be imposed on the accused upon conviction;

(ii) The apparent strength or weakness of the State case;

(iii) The accused's ability to reach another country and the absence of extradition facilities from that country;

(iv) The accused's previous behaviour when previously released on bail; and

(v) The credibility of the accused's own assurance of his intention and motivation to remain and stand trial.

See also S v Jongwe 2002 (2) ZLR 209 (S).

The Court turns to apply these principles to the facts of the case.

Although counsel for the appellants argued strongly that the finding by the court a quo that the first, sixth and seventh appellants were hiding at Palm Lodge to avoid arrest, the evidence supports that finding. This is particularly the case when regard is had to the text message the first appellant admitted sending to his wife by cellphone to tell anyone, including the police, who came home looking for him that he was in Malbereign. He and his wife knew that he was not in Malbereign but at Palm Lodge. It is clear from the admitted evidence that the first appellant was hiding his whereabouts. The fact that he did not specifically tell his wife, in the text message, that it was the police he was hiding from does not affect the correctness of the finding by the court a quo that he was hiding from the police.

The first appellant was found at the lodge in the company of the sixth and seventh appellants. It is said he was housing them. They were acting in pursuit of a common purpose to avoid arrest by the police. When regard is had to the fact that the sixth appellant made indications at the scene of the crime after her arrest, the finding that she was absconding from arrest by the police is justified.

The same conclusion cannot be arrived at in respect of the finding by the court a quo that the fifth appellant was avoiding arrest when he was found by the police at his workplace. A place of work is where an employee is compelled by the contract of employment to be. There was no allegation that the fifth appellant was at his work place at a time when he was not expected to be there. The fact of avoiding arrest was not the only one that could reasonably be inferred from the presence of the fifth appellant at his place of work. There was nothing to support the allegation contained in the affidavit by the Investigating Officer that he was "staying" at his workplace. The fifth appellant denied the allegation. In any case, he was arrested within forty-eight hours of the offence being committed. The State needed to produce concrete evidence to show that he resided at his work place during that short period between the time of the commission of the offence and his arrest. A concession has been made by State counsel that the evidence before the court a quo was not sufficient to support the finding that the fifth appellant was avoiding arrest. As that was the only basis on which the court a quo found that there was a likelihood that he would not stand trial if released on bail and it is correctly conceded that the finding is a misdirection, the fifth appellant is entitled to be released on bail.

The court a quo relied on the fact that the first, sixth and seventh appellants hid from the police to avoid arrest as evidence of the finding that they had a propensity to abscond.

Counsel for the appellants argued that propensity was an inclination on the part of the accused person to repeat conduct he or she had done at least more than three times before. Counsel for the respondent, on the other hand, argued that the word referred to an inclination to repeat what a person has done before. According to the meaning contended for by counsel for the respondent, the fact that the appellants had avoided arrest was enough support for the finding that they had a propensity to abscond and were unlikely to stand trial if released on bail.

It is, however, clear that the appellants had not absconded when on bail previously in any other criminal case.

It is clear from the manner the court a quo went on to take into account the fact of avoiding arrest and indications made at the scene of crime by the first and sixth appellants, together, that it considered that the probative value of the evidence of avoiding arrest was not, on its own, sufficient to justify the finding that there was a likelihood of them not standing trial if released on bail. There was nothing said on the indications allegedly made by the first and sixth appellants other than the statement that they were made. What was indicated was not disclosed. What the first and sixth appellants indicated as what they had done had to be known by the court a quo before it could make a finding to the effect that their involvement in the commission of the crime strengthened the State case. The first appellant said he intended challenging the admissibility of the indications at the trial on the ground that they were not made freely and voluntarily. Not only does this reveal a willingness to attend trial and use legal procedures to weaken the State case, it also shows that indications are not sufficient evidence for holding that an accused person is likely to abscond if released on bail. It is the principle of law on bail application that the seriousness of the crime the accused is charged with and the strength of the State case are, on their own, not enough to justify a refusal to grant bail. See S v Hussey 1991 (2) ZLR 187 (S)….,.

The second and third appellants are brothers. There is a concession in respect of both that they be granted bail. The court finds that the concession is properly made. The court a quo had refused the second appellant bail on the ground that he would be induced by the desire to go back to his work in Botswana to abscond if released on bail. The court a quo was also of the view that the seriousness of the offence would induce the second appellant to abscond.

The important factor which was overlooked by the court a quo is that the second appellant had always travelled to Botswana lawfully. He has a passport which has been taken into the custody of the police. There was no evidence to suggest that a person who had always sought to abide by the laws of going out and coming into the country would be induced by the desire to go back to work in a foreign country to abscond from judicial process. Going to a foreign country without travelling documents has its own serious hazards. There is an extradition arrangement between Zimbabwe and Botswana. It was not shown that the second appellant was prepared to risk the hazards attendant upon unlawful exit to a foreign country. The appellant had been in custody for a month at the time he appeared before the court a quo on an application for bail. The court a quo did not address its mind to the question whether the job he had in Botswana would still be available to him.

In respect of the third appellant, the court a quo had refused him bail on an erroneous view of the facts. The second appellant was in custody together with the third appellant. The court a quo, however, placed the second appellant in Botswana and said he was available to assist the third appellant if he absconded to that country. Needless to say that was a clear misdirection on the facts entitling the third appellant to an order granting him bail….,.

It is important to note that all the appellants are nationals with residence in the country. They have roots here. In the exception of the third, sixth and seventh appellants who are single, the rest have families in the country. They have strong property links with the country. They are unlikely, in the circumstances, to be under considerable temptation to evade trial notwithstanding the seriousness of the crime with which they are charged. They all gave assurances of their commitment to attend trial if released on bail. They also undertook to submit themselves to stringent measures as part of the conditions of their release to ensure effective monitoring by the police….,.

The appeal succeeds with no order as to costs. The judgment of the court a quo, refusing the appellants bail, is set aside and substituted with the following:

All the appellants are granted bail in the following terms and conditions:

(1) The first appellant is to deposit a sum of $1,000= with the Registrar of the High Court, Harare.

(2) The second, third, fourth, fifth, sixth and seventh appellants shall deposit a sum of $500= each with the Registrar of the High Court, Harare.

(3) The first, second, fourth and seventh appellants are to surrender their travel documents to the
Registrar of the High Court, Harare.

(4) The third and sixth appellants are hereby prohibited from procuring travel documents until the case is finalized without first applying and obtaining permission to do so from a judge of the High Court,
Harare.

(5) Each appellant shall reside at the address he or she gave to the police at the time the charge was laid against him or her and report three times a week at Harare Central Police Station on Monday, Wednesday and Friday between the hours of 6am and 6pm.

HB55-09 : MPUMELELO MPOFU vs THE STATE
Ruled By: NDOU J

This is an application for bail pending trial. The application is opposed by the respondent on two grounds, i.e. (a) The applicant is likely to abscond. (b) The applicant will endanger the safety of the public. The background facts are the following. The applicant is facing a count of armed robbery and a count of car-jacking. It is alleged that on 20 February ...

This is an application for bail pending trial.

The application is opposed by the respondent on two grounds, i.e.

(a) The applicant is likely to abscond.

(b) The applicant will endanger the safety of the public.

The background facts are the following.

The applicant is facing a count of armed robbery and a count of car-jacking.

It is alleged that on 20 February 2009, and at around 1730 hours, the applicant, in the company of five (5) others, three of whom are still at large, drove a white Nissan Sentra motor vehicle and a maroon BMW motor vehicle, bearing South African registration numbers, to a secluded spot near Richmond Kwik Spar Supermarket in Bulawayo.

The BMW motor vehicle belongs to the applicant.

The applicant, together with the abovementioned accomplices, two of whom were armed with pistols, went inside the said supermarket and therein robbed the occupants of hard cash, mobile phones, wines, and orange crush. On exiting the supermarket, they came across one Owen Munyakuri who was seated in the driver's seat of a Ford Transit motor vehicle. The gang threatened to shoot him, and by use of these threats and violence, forced him out of the vehicle. They further stole money on his person and also a mobile phone..., the gang drove away in his vehicle. Whilst fleeing from the scene, one of the group discharged a firearm twice.

The applicant states that he is a married man with a child. He avers that he has a fixed abode at 42028/1 Ejingeni Flats, Makokoba in Bulawayo.

It is beyond dispute that the applicant is a holder of a South African passport in the name of Dladla Thokozani Magnificent which shows that he is a South African citizen. His BMW motor vehicle is registered in South Africa. He has not explained why he travels with a South African passport with such particulars. He has not explained why his vehicle is registered in South Africa.

It is beyond dispute that the applicant lives outside the jurisdiction of this court, and uses a foreign passport, and different names. He is in a much better position than an average citizen to abscond, even though his passport has been impounded by the police – S v Ndlovu 2001 (2) ZLR 261 (H).

As alluded to above, the applicant is a flight risk.

He seems to be ordinarily resident in South Africa. His true identity is unknown and difficult to ascertain. The applicant is not a suitable candidate for bail – S v Chikomba & Anor HB120-03.

The application must fail, and the applicant is refused bail.

HB70-09 : PRESIDENT MASUKUME and ARTWEL NKALA and THABANI MAZIYA and PRAYER DUBE and GIFT MOYO and COLLEN MURWIRA and SHEPHARD TAVACHERA vs THE STATE
Ruled By: CHEDA J

The cardinal rule in applications for bail pending trial is that our courts tend to lean in favour of the liberty of suspects unless there are compelling reasons to act otherwise. This settled legal position is based on the principle of the presumption of innocence of a suspect until proven guilty. See Aitken and Another ...

In casu, all the applicants are facing very serious charges that is, armed robbery, and kidnapping, with respect to Group One applicants.

The fact that a suspect is facing a serious charge, per se, is not enough reason to deny him/her bail, as the granting of bail is his entitlement. See Abraham Nyathi and Another v S HB30-06. There has to be an additional factor to it.

The question then is, is there any other factor, in addition to the serious charge, which can persuade the court to deprive the suspects of their liberty?

It is common cause that in the first quarter of the year the country in general, and Bulawayo in particular, experienced an unprecedented increase of armed robberies. This is a factor which, in my mind, cannot be ignored by the court. As such, it is a factor which is necessary in the determination of bail based on the seriousness of an offence or charge.

It is further the respondent's argument that if granted bail the applicants are likely to abscond. They have, however, argued that they are family men, and, therefore, are unlikely to abscond.

The question then is, can the fact that one has a family be reason enough for him to stay and await his possible lengthy incarceration, in the event of a conviction?

The court takes judicial notice that people have absconded, leaving families behind, and even those without valid travel documents have made good their escape when faced with the choice of either imprisonment or freedom?

One Thabani Maziya is a South African, as he holds a South African passport..., If granted bail he is likely to abscond.

The likelihood of lengthy prison terms will serve as an incentive to abscond. See S v Hudson 1980 (4) SA 145; S v Munatsi HB21-05; and Mpumelelo Mpofu v S HB55-09.

In matters of this nature, the court should weigh the interests of the applicants against those of the State. See S v Mutandwa HB79-05.

In casu, it is clear in my mind that the interest of justice favours the denial of bail, as the chances of the applicants' abscondment is very high, even if they have not yet shown such signs. It is folly, therefore, to think that the applicants', who are alleged to have been involved in such serious crimes, would be so gullible to await the possible rigorous cross-examinations as to why all of them were found to have been where they were, moreso, that some of them have been positively identified by the complainants. All of them have been sailing too close to the wind.

With regards to the interference with witnesses, in as much as it has been held in some cases that denial of bail should be made only where a suspect has taken positive steps towards that direction, this is not absolute.

In casu, the fact that the applicants are facing allegations of violence, or threats thereof, and the mere knowledge that the applicants are out of custody, without more, is enough to cause concern to the witness. The possibility of interference is therefore live, and witnesses need to be protected as well.

I hold this view bearing in mind the ordeal the witnesses experienced while at the mercy of the alleged perpetrators of these crimes.

The applications are accordingly dismissed.

HB80-09 : SWINFUN MADYIWA and VICTOR MUNJAYI and SILENT NCUBE and INNOCENT MUZVONGO and LAW MACHANGANI vs THE STATE
Ruled By: NDOU J

This is an application for bail pending trial. The sole ground of opposition of this application is absondment. The respondent has failed to adduce cognizable indications that the applicants will be tempted to abscond. Admittedly, the offence is serious, but when one balances the interests of the administration of justice and the interests of the applicants, I hold the ...

HB82-09 : TAWANDA CHIGWEDERE and CLAUDIUS MUNENGE and TENDAI MUSUPAI vs THE STATE
Ruled By: CHEDA J

In this matter, the applicants are applying for bail pending trial. The circumstances in this matter are that the applicants are alleged to have committed armed robbery against the complainant and took away R3,000=. They have argued that they are innocent individuals who, while walking along a path were provoked by the complainant's manner of driving which ...

In this matter, the applicants are applying for bail pending trial.

The circumstances in this matter are that the applicants are alleged to have committed armed robbery against the complainant and took away R3,000=.

They have argued that they are innocent individuals who, while walking along a path were provoked by the complainant's manner of driving which bordered on rudeness. A confrontation took place which resulted in some amicable resolution.

This occurred on the 21^st March 2009.

They were arrested, detained, and have remained in custody ever since.

It is their argument that will not abscond as they have no travel documents, and, in any event, the charges they are facing are trumped up, and, for that reason, the State cannot secure a conviction against them.

The respondent has, however, argued that it has a strong case in view of the evidence against them. It is for that reason that they are likely to abscond and also endanger the safety of the public.

The applicants are facing serious charges.

It is trite that the fact that one is facing a serious charge per se is not enough reason to deny him/her bail. In addition to the seriousness of the charge, there should be an additional factor in order for the court not to grant bail to a suspect.

Their argument is that they cannot abscond as they have no travel documents.

With great respect, this argument no longer holds in Zimbabwe, as it is well-known that many people cross our borders on a daily basis without the said documents. The court, therefore, takes judicial notice of this fact.

It is my view, therefore, that the seriousness of the offence, which on its own, if proved by the respondent, will result in their incarceration for a long period, is enough inducement for them to abscond.

It was further their submission that they will report once per week at Beitbridge Police Station. While that may be so, in my view, it is not enough preventive measure for them not to abscond.

In this regard, one must weigh the possibility of granting them bail with stringent conditions on one hand, against the consequences that may result in the event of them breaching their bail conditions. In my opinion, to grant them bail which might result in the breach of bail conditions is not a good idea in the circumstances.

In my opinion, the applicants do not qualify for bail by this court.

This application is, accordingly, dismissed.

HB83-09 : BHEKIMPILO KHESWA vs THE STATE
Ruled By: CHEDA J

This is an application for bail pending trial. The allegations against the applicant are that on the 23rd of September 2008, together with his three accomplices, at B5430 Old Pumula, Bulawayo, broke into the complainant's house armed with pistols and robbed him of various property valued at US$3,000= and cash amounting to R1,000=. He was arrested a year ...

HB108-09 : OSCAR BOMA and BUSISANI TSHABANGU and TAWANDA CEPHAS NYANDORO vs THE STATE
Ruled By: NDOU J

This is an application for bail pending trial. The brief facts are that on the 22nd of August 2009, at the corner of Helm and Athlone Roads, Northend, Bulawayo, the applicants, one or more of them, unlawfully and intentionally, attempted to commit robbery (attempted carjacking), that is, they tried to rob Marvellous Gumire of her Toyota ...

HB111-09 : LUKA MISHECK KHUPE and TSHINDU NCUBE and SIPUDAWU NDEBELE and KHANGEZA MOYO and NKOSILATHI NLEYA vs THE STATE
Ruled By: CHEDA J

This is an application for bail pending trial, which application is opposed by the respondent.The genesis and historical background of the case is as stated below.The applicants, whose ages range between thirty-five to seventy-eight, are being charged with murder. They all reside at Makhulela Village in the remote area of Plumtree District. It is alleged that ...

This is an application for bail pending trial, which application is opposed by the respondent.

The genesis and historical background of the case is as stated below.

The applicants, whose ages range between thirty-five to seventy-eight, are being charged with murder. They all reside at Makhulela Village in the remote area of Plumtree District. It is alleged that on the 5^th day of September 2009 at Balisi Sibanda's Homestead, Makhulela, they unlawfully, and wrongfully, assaulted Jele Moyo and Ngwenya Dube, who died two days later.

This is what the respondent stated in its submissions, and is disputed by the applicants.

These, of course, are still allegations which will have to be proved beyond reasonable doubt in court.

The question then, is, should the applicants be admitted to bail or not?

The respondent vigorously opposed this application on the basis that -

(1) They are likely to abscond, even if they have no passports.

(2) They are likely to interfere with witnesses in the village as all of them are villagers; and

(3) Their release will disturb public order, or undermine public peace or security.

The objections raised by the respondent are generally valid, and the provisions of section 117(3)(b) of the Criminal Procedure and Evidence Act [Chapter 9:07] are clear. These, however, are guidelines, and not an end to themselves.

In my considered view, the granting of bail should be arrived at after careful consideration of the real possibility of abscondment and interference with State witnesses. Such considerations must take into account a suspect's personal circumstances, and the circumstances surrounding the commission of the offence.

The submission by the applicants that the deceased died as a result of ingestion of poison, which was forced on them by a mob, stands uncontroverted. If this turns out to be the correct position at the trial, it will, no doubt, have been prejudicial to the applicants who enjoy the operation of the principle of the presumption of innocence until proven guilty.

The question of abscondment has been raised as one of the reasons for the opposition of the granting of bail

It is common knowledge that, in the present day Zimbabwe, people have a tendency to travel in and out of the country without valid travel documents, or no documents at all. While this is a reality, in my view, it is not proper to deny a suspect bail on that basis alone. Each case must be determined on its own merits. If all cases are treated the same, on that basis, it will result in serious prejudice to those who reside near our borders.

The applicants, and other villagers, live on the Botswana border. It is well-known that these villagers are tribally linked to Botswana. They, therefore, travel in and out of Zimbabwe at will, and at times without travel documents. To deprive them of their liberty on that basis alone is, in my view, improper.

They should not be shut out of the benefit of the presumption of innocence because of their accidental geographical location.

In addition thereto, the commission of this offence is hazily linked to them as it appears that either the assault, or the force to take poison, was as a result of over two hundred villagers who were present at Basili Sibanda's funeral. This is confirmed by the investigating officer's statement that more “witnesses” are yet to be arrested.

It is also the respondent's view that they are likely to interfere with State witnesses.

It is trite that in order for this reason to stand, the State should state which witnesses these are. The fact that the applicants live in the same village with some perceived witnesses is not enough for the purposes of this bail application.

It is, further, their argument that their safety in the community is not guaranteed.

This, indeed, may be so where there is evidence that the community is up in arms against the perpetrators.

In casu, that facts point to a scenario where the two deceased died as a result of what over two hundred villagers perceived as a need to administer instant justice. Therefore, the applicants' actions, if at all, are not viewed as wrong, wrongly though of course. It is for this reason that they are likely to receive sympathy, and, as such, fears of reprisals held by the respondent are not justified in the circumstances.

This is a case where the liberty of the applicants cries out loudly for justice, and, accordingly, the following order is made -

Order:

The applicants be and are hereby admitted to bail pending trial on the following conditions -

(1) That the applicants deposit each a sum of US$50= with the Assistant Registrar of the High Court, Bulawayo.

(2) That the applicants must not interfere with any State witnesses, as may be indicated by the State, or the police.

(3) That the applicants report to Khame Police Post, Plumtree, once a week on Wednesdays between 8am and 5pm until finalization of their case.

HB123-09 : HARDSON MHLANGA vs THE STATE
Ruled By: CHEDA J

This is an application for bail pending trial. The applicant is now applying for bail pending trial on the basis that he is presumed to be innocent until proven guilty by a competent court. This is a trite honoured principle in our legal system. The applicant is a businessman based in Beitbridge, together with his two co-accused, ...

This is an application for bail pending trial.

The applicant is now applying for bail pending trial on the basis that he is presumed to be innocent until proven guilty by a competent court. This is a trite honoured principle in our legal system.

The applicant is a businessman based in Beitbridge, together with his two co-accused, and the complainant. It is his legal practitioners' argument that he is unlikely to abscond as he has a lot at stake to lose.

On the other hand, the respondent's argument is that of the seriousness of the offence, and the lengthy prison term which may be imposed on him, in the event of a conviction, will induce him to abscond.

The allegations against him are, indeed, serious, but, that alone, these courts have always stated is not enough reason to deny a suspect bail.

In casu, the applicant is alleged to be deeply involved in the commission of this offence. Not only is it alleged that he invited, but, that he was also present when the complainant was being assaulted, in his naked state, by Kingston and Clayton. The applicant has a tall order in trying to extricate himself out of this matter. It is for this reason that the respondent is of the view that they have overwhelming evidence against him.

In S v Nichas and Another 1977 (1) SA 275..., DIEMONT J stated -

“..., if there is a likelihood of heavy sentences being imposed, the accused will be tempted to abscond.”

The applicant is aware, through his legal practitioners, that, upon conviction, he is likely to be incarcerated for a long time.

He is a businessman living in the border town of Beitbridge, obviously money and contacts are not scarce to him. Therefore, faced with the possibility of his incarceration against his cherished freedom, in my opinion, he is likely to evade justice.

The applicant is the type of person who is likely to abscond if admitted to bail in view of the seriousness of the allegations, the evidence against him, and the likelihood of the length of incarceration he is likely to face - in the event of a conviction.

In my view, it will be folly, therefore, to grant the applicant bail as this will licence him to evade justice.

The application is accordingly dismissed.

HH48-10 : ALBERT MUGOVE MATAPO and NYASHA ZIVUKU and ONCEMORE MADZURAHONA and EMMANUEL MARARA and THREE OTHERS vs THE STATE
Ruled By: MAKARAU JP

Following the handing down of the order by the Supreme Court, the second and fifth applicants filed an application for bail pending trial, citing changed circumstances. This they did on 4 January 2010. The other applicants filed a similar application on 3 February 2010.For convenience, and with the consent of the parties, I consolidated the ...

For convenience, and with the consent of the parties, I consolidated the hearings of both applications.

Central to both applications is the delay that has ensued between the time the applicants were arrested and the anticipated date of their trial. A period in excess of thirty months has since elapsed since their arrest without the applicants being tried.

It was submitted by counsel for the first, third, fourth, sixth and seventh applicants that since the court roll for the first term ending on 2 April had been settled without including the resumption of the trial of the applicants, there will be a further delay in the setting down of the matter for trial, which can only be scheduled for the second term.

In opposing bail, the State denied that it was responsible for the delay that has ensued in the matter between the arrests of the applicants and their possible trial dates.

I have always viewed the procedure of bail pending trial as a system where because the applicant is, at law, innocent, he or he must be admitted to bail unless the due administration of justice will thereby be prejudiced. Indeed, the wording of section 117(1) of the Criminal Procedure and Evidence Act [Chapter 9:07] appears to reinforce my view of bail. It provides -

“Subject to this section and section 32, a person who is in custody in respect of an offence shall be entitled to be released on bail at any time after he or she has appeared in court on a charge, and before sentence is imposed, unless the court finds that it is in the interests of justice that he or she should be detained in custody.”

Where, however, as in casu, the applicant has been denied bail once or twice before, the position changes somewhat.

In denying the applicant bail in the first, or subsequent, instance the court would have, in essence, held that it is not in the interests of justice to admit the applicant to bail. For such an applicant to be admitted to bail thereafter, he or she must perforce demonstrate there has been a change in the circumstances of the matter to such an extent that the threat to the due administration of justice found by the previous court has been removed, and that the due administration of justice is now safeguarded from interference or frustration.

HH189-10 : THE STATE vs WILLIAM CHARAMBA and CLEVER MADZANGA
Ruled By: MAWADZE J

The applicants submitted that they are proper candidates for bail. The first applicant, William Charamba, is thirty years old and a traditional healer (popularly known in Shona as tsikamutanda). He resides with his family at No.407 Chikonohono Township in Chinhoyi. The second applicant, Clever Madzanga, is thirty eight years old and resides at Plot No.9 ...

The following reasons were given by both applicants on why they should both be admitted to bail pending trial -

(a) That they are denying the allegations and that the presumption of innocence operates in their favour.

(b) That the State case (against them) is very weak as investigations which are now complete failed to link both of them in any manner to the commission of both offences as none of the applicants was found in possession of the stolen property or the firearm allegedly used in the commission of the offences.

(c) That they have not exhibited any inclination to interfere with witnesses or investigations and are willing to abide by any bail conditions imposed by the court.

(d) That both applicants are family men of fixed abode without any travel documents hence would not jeopardize the interests or justice by absconding as chances of them being convicted of these offences are virtually non-existent.

(e) That the claim that they will commit further similar offences if released on bail is unfounded as both applicants have no such history and are not facing any other charges.

(f) That investigations were due to be completed by 10 May, some two months ago, and that the applicants have been in custody for about four months.

The respondent strongly opposed this application.

An affidavit filed by Detective Sergeant Collen Zimbudzi outlines the reasons why the applicants should not be admitted to bail. In brief, the respondent submitted the following -

(a) That the applicants are facing very serious offences of robbery committed in aggravating circumstances as they were allegedly armed. Consequently, the applicants, if convicted, would be visited with lengthy custodial sentences as the maximum penalty provided for is life imprisonment. In the circumstances, the risk of absconding is very high.

(b) That the firearm used in the commission of the offences was not recovered and that the two other accomplices are at large. The fear, therefore, is that both applicants would use the firearm to commit further offences and team up with the alleged accomplices still at large.

(c) That the State case is very strong and the chances of securing a conviction in respect of both applicants are very high as both applicants were identified by the complainants.

(d) That the applicants are likely to interfere with the interests of justice if released on bail as the stolen property was not recovered.

(e) That the victims in Count 1 are very young children who are susceptible to interference and intimidation by the applicants if released on bail.

(f) That the applicants have been uncooperative with the police investigations because, upon arrest, they implicated two serving members of the Zimbabwe National Army based at 2:3 Infantry Battalion, one Bigboy Chihambakwe and Calvin Zivanai, as their accomplices. However, further investigations revealed that both applicants were falsely implicating the two soldiers. The applicants are therefore viewed as being keen to put police on a wild goose chase, and, in the process, conceal the real identity of their accomplices for sinister motives. Both applicants have, however, denied implicating any person. In fact, they submitted that such a suggestion is weird as they themselves are denying the charges.

This court has pronounced on a number of occasions the factors to be considered in an application for bail pending trial and how those factors should be assessed See: Attorney General v Phiri 1987 (2) ZLR 33 (H); S v Aitken 1992 (2) ZLR 84 (S); S v Ndlovu 2001 (2) ZLR 261 (H). These factors include, inter alia, the seriousness of the offence; the likelihood of absconding; the likelihood of interfering with the evidence; or to commit further offences among other factors. The court should, in assessing those factors strike a balance between the interest of justice and the liberty of the accused. The onus is on the applicant to show, on a balance of probability, that she /he is a suitable candidate for bail.

While it is accepted that the applicants are facing serious offences, that, on its own, would not persuade me not to admit the applicants to bail. See S v Hussey 1991 (2) ZLR 189 (S) and S v Tsvangirai HH100-03. The likelihood of absconding can be curtailed by appropriate bail conditions.

The applicants have been in custody for about four months and I believe that investigations should be complete by now. The failure by the police to recover the weapon allegedly used in the commission of the offence, or to apprehend the alleged accomplices, cannot be a basis to deny the applicants bail. Bail, by its nature, is not punitive and continued incarceration of the applicants would not, in my view, help police investigations. I am not persuaded, in the absence of objective facts that the fear by the State that the applicants would commit further offences is well-founded.

HH129-10 : SIMBARASHE MABVUDZI vs THE STATE
Ruled By: BHUNU J

The undisputed facts in this case speak for themselves. The applicant, through his own mouth, admits marrying the complainant but disputes sexual intercourse. The veracity of his defence that he opted to wait until the complainant became of age before having sexual intercourse with her is for the trial court to determine. But, at this ...

HH143-10 : GIFT GAMBIZA vs THE STATE
Ruled By: BHUNU J

The applicant is in remand prison on allegations of murder. Acting in consort and common purpose with three others he is alleged to have assaulted and murdered the deceased accusing him of having stolen his money. All along, the applicant has been a fugitive from justice. He has been on the police wanted list after the ...

HH74-11 : ELTON MANGOMA vs THE STATE
Ruled By: KUDYA J

This is an application for bail pending trial. On 11 March 2011, the applicant was indicted by the magistrate sitting at Harare for trial on 28 March 2011 at the High Court. As he was mandated to do by section 66(2) of the Criminal Procedure and Evidence Act [Chapter 9:07], the indicting magistrate committed him ...

View Appeal HH154-11 : TUNGAMIRAI MADZOKERE and LAST TAMAI MAENGAHAMA and LAZARUS MAENGAHANA and OTHERS vs THE STATE
Ruled By: UCHENA J

The applicants are facing a charge of contravening section 47(1)(a) of the Criminal Law (Codification and Reform) Act [Chapter 9:23]. It is alleged that they murdered Petros Mutedza. Petros Mutedza was an Inspector in the Zimbabwe Republic Police. He had been called to disperse MDC-(T) youths who had gathered unlawfully at Glen View 3 Shopping Centre. The same group of MDC-(T) youths, numbering about 50, had earlier on been dispersed by other police officers from Glen View 4 Shopping Centre.

When the deceased and his team of uniformed police officers arrived at Glen View 3 Shopping Centre, he inquired from some of the youths as to where their leaders were. He was informed that they were in Munyarari Night Club after which he and five police officers entered the night club to tell the youth's leaders that they should disperse as their gathering had not been authorised by the police. The group of youths then shouted in shona that (matatya ngaauraiwe). The deceased, and his police officers, were then attacked with various missiles including, stones, bricks and stools. They were forced to run away from the night club with a volley of missiles being thrown at them. The deceased mistook the white Nissan Hardbody which was later driven away by the sixth applicant for their unmarked police motor vehicle. He ran to it and tried to open the door so he could seek refuge in the motor vehicle but the sixth applicant closed the door and drove the motor vehicle a few meters away from the deceased. He was struck the fatal blow and he fell to the ground. He was then kicked and trampled by the mob of MDC-(T) youths until he lost consciousness and died. On seeing the result of their acts, some of the youths jumped into the Nissan Hardbody and the sixth applicant drove them away at high speed. The eleventh applicant also drove her motor vehicle from the scene with some of the youths who had attacked the deceased. Those who remained at the scene quickly removed their MDC-(T) T/shirts and left the scene. The other police officers ran to their police motor vehicle but one of them was seriously injured.

The applicants applied for bail pending trial which the State strenuously opposed.

Counsel for the applicants made detailed submissions on why the applicants should be granted bail. Counsel for the respondent also made detailed submissions on why the applicants should not be granted bail. They both relied on section 117(1) of the Criminal Procedure and Evidence Act [Chapter 9:07] and section 117(2) of the Criminal Procedure and Evidence Act [Chapter 9:07], which provides as follows:

“(1) Subject to this section and s32, a person who is in custody in respect of an offence shall be entitled to be released on bail at any time after he or she has appeared in court on a charge and before sentence is imposed, unless the court finds that it is in the interests of justice that he or she should be detained in custody.

(2) The refusal to grant bail and the detention of an accused in custody shall be in the interests of justice where one or more of the following grounds are established -

(a) Where there is a likelihood that the accused, if he or she were released on bail, will -

(i) Endanger the safety of the public or any particular person or will commit an offence referred to in the First Schedule; or

(ii) Not stand his or her trial or appear to receive sentence; or

(iii) Attempt to influence or intimidate witnesses or to conceal or destroy evidence; or

(iv) Undermine or jeopardise the objectives or proper functioning of the criminal justice system, including the bail system; or

(b) Where, in exceptional circumstances, there is the likelihood that the release of the accused will disturb the public order or undermine public peace or security.”

The section makes it clear that an accused person is entitled to be released on bail unless the court finds that it is in the interests of justice that he or she should be detained in custody. The detention of an accused person in custody can only be in the interest of justice if one or more of the factors mentioned in section 117(2) of the Criminal Procedure and Evidence Act [Chapter 9:07] is or are established against him.

The release of an accused person on bail is aimed at enabling him to attend trial from out of custody. It does not mean he or she has no case to answer. On the other hand, the detention of an accused in custody is to secure his or her attendance to stand trial if there are genuine grounds for believing that the factors mentioned in section 117(2) of the Criminal Procedure and Evidence Act [Chapter 9:07] have been established against him. That is why the seriousness of the charge the accused is facing is not, on its own, enough to deny an accused person bail. The court must therefore endeavour to strike a balance between the interests of justice and the accused's liberty. Section 117(1) of the Criminal Procedure and Evidence Act [Chapter 9:07] leans in favour of the liberty of the accused person hence the use of the words “shall be entitled to be released on bail at any time after he or she has appeared in court on a charge and before sentence is imposed unless the court finds that it is in the interests of justice that he or she should be detained in custody.” The intention of the legislature was obviously to make section 117 of the Criminal Procedure and Evidence Act [Chapter 9:07] consistent with the presumption of the accused's innocence until proved guilty. That proof or lack of it can only be established at the accused's trial.

The factors to be considered in the applicants' bail applications are therefore:

1. Whether if the applicant is released on bail he or she will endanger the safety of the public or any particular person or will commit an offence referred to in the First Schedule; or

2. Whether the applicant will abscond if released on bail; or

3. Whether the applicant will interfere with wittiness's or evidence if released on bail; or

4. Whether the release of the applicant on bail will undermine or jeopardise the objectives or proper functioning of the criminal justice system, including the bail system;

5. Whether or not the release of the applicant on bail will disturb the public order or undermine public peace or security.

In general, counsel for the applicants submitted that the applicants are good candidates for bail and gave each applicant's personal details. He extensively dealt with each of the grounds which the State had in its response advanced as the reasons why the applicants should not be released on bail.

Endangering society and other persons and commission of other offences

Counsel for the applicants submitted that the applicants cannot endanger society as they did not commit the offence and have no previous convictions showing they were ever involved in public violence. He submitted that the offence is merely being thrust upon the MDC-(T) when it could have been committed by an ordinary member of the public who may escape prosecution because the police have devoted their effort on the MDC-(T) party's activists. He submitted that the applicants are not facing other charges which would show they have a propensity towards committing offences.

The State's response

Counsel for the respondent submitted that the applicants will endanger society as they are likely to commit offences involving public violence which offences have, according to Inspector Ntini, the Investigating Officer, become prevalent. He added that the release of the applicants who are political activists will be received by society with shock.

Abscondment

Counsel for the applicants argued that the applicants will not abscond because the State's case against them is weak. He, while admitting that the murder of a police officer during the execution of his duties is a serious offence, argued that the applicants are denying the charge and seriousness of an offence, on its own, is not a ground for refusing an applicant bail. He submitted that the applicants are of fixed abode and that all, except the third applicant, live and have families in this country. Most of them are of limited means and would not be able to start a new life in a foreign country. He said those who have means have strong links to this country through their assets, family ties and businesses. He said those who have travel documents can surrender them to the court, and, in any event, they have already been taken by the police from which they can easily be accessed.

He further submitted that the State's allegations that the applicants will abscond because most of them were arrested away from their homes, or during night raids at their homes, is not an indication that they will abscond, as most people are bound to be away from home especially during the day.

Counsel for the applicants submitted that the State case is not strong because the medical report states that the deceased died of a head injury. He argued that it is impossible for all the applicants to have thrown the half brick which caused that head injury. He submitted that as police intelligence officers observed the attack on the deceased they must have indicated who threw the half brick. He submitted that there is no allegation that there was common purpose which would make the conduct of the person who threw the half brick attributable to the other applicants. He also submitted that the post mortem report states that the deceased died of a head injury due to assault. He argued that the doctor has shown bias because he mentioned that there was an assault.

Counsel for the applicants further submitted that the State's case is not strong because the alibis proffered by the applicants were not investigated by the police.

The State's response

Counsel for the respondent submitted that the applicants are facing a very serious case involving the murder of a police officer who was on duty. He submitted that the applicants face capital punishment if convicted and that will induce them to abscond if granted bail. He submitted that the State's case is very strong as the applicants were seen committing the offence by police intelligence officers who were at the scene and had called the deceased and his reaction team of uniformed police officers. He also submitted that the applicants were seen by members of the public who are assisting the police with the identification and addresses of the offenders. He submitted that the amounts of bail suggested by the applicants are so inadequate that they are an indication that the applicants intend to abscond on their being released on bail.

He further submitted that some of the applicants have behaved in a manner indicative of their intention to abscond. He said some had left their homes avoiding arrest and were arrested at lodges where they were staying hiding from the police who were looking for them at their homes. One had abandoned his home and was staying at his workplace. Others were staying away from their homes avoiding the police and were arrested during police raids during the night. He said the two applicants who drove others from the scene sped off at high speed obviously to avoid arrest.

On the alleged weakness of the State's case, he submitted that there is strong evidence on which the applicants may be convicted because the applicants who were a distinct group, wearing party regalia, were observed by police intelligence officers and members of the public committing the offence. On the alleged failure by the police to investigate the applicants' alibi's he said the police investigated them and found to the contrary.

He submitted that the fact that one half brick struck the fatal blow does not matter as the applicants and others not yet arrested were acting in common purpose. He said that is why they shouted (matatya ngaauraiwe), after which they threw various missiles at the police, and kicked and trampled the deceased as a group.

Interference with witnesses and evidence

Counsel for the applicants submitted that the applicants do not know the witnesses and can, therefore, not interfere with witnesses they do not know. He submitted that the witnesses, who were described as police officers who were in plain clothes, cannot be interfered with by the applicants. He submitted that the exhibits are already in the custody of the police and can no longer be interfered with. He submitted that the investigations are almost complete so there is no fear that the applicants can interfere with investigations.

The State's response

Counsel for the respondent submitted that the applicants will interfere with witnesses for the State and evidence as some members of the public are still slowly coming up with evidence. He submitted that the witnesses are afraid of the applicants and may not continue to come up with further evidence if the applicants are released on bail as their fear will intensify. He explained that though the police witnesses saw the applicants, and others not yet arrested, committing the offence, it is the witnesses, who are members of the public, who are giving the police details like the offenders' names and addresses. He conceded that the exhibits are already in the custody of the police and that such evidence is unlikely to be interfered with. He said it is the evidence that the police are still gathering which may be interfered with.

Undermining or jeopardising the criminal justice system, including the bail system

Counsel for the applicants submitted that the release of the applicants on bail will not undermine the criminal justice system as they have no pending cases in the courts. They do not have previous convictions which would tend to show a propensity towards criminal conduct on their part.

The State's response

Counsel for the respondent said the release of the applicants on bail is likely to cause public outrage as this was a politically motivated public violence related murder. He further submitted that the applicants' ability to influence witnesses will undermine the criminal justice system.

Disturbing public order or undermining public peace or security

Counsel for the applicants submitted that the applicants will not disturb public peace or undermine public peace and security if they are released on bail. He argued that the applicants do not have previous convictions, or pending cases which would show that they can disturb public peace order and security if released on bail. He said their good records show that they are unlikely to disturb public order, peace and security.

The State's response

Counsel for the respondent submitted that the applicants, who are MDC-(T) political activists, will organize public violence related offences using their influence. He used their congregating at Glen View 4, and later at Glen View 3, as proof that they have such a propensity and shows persistence in unlawful behaviour. He further submitted that their attacking police officers and killing one of them was in furtherance of their desire to defy the law.

In response to the applicants' submissions, counsel for the respondent submitted that the applicants are not good candidates for bail.

Applicants' Response

In his response, counsel for the applicants persisted with his earlier submissions and criticised the respondent's counsel for introducing new principles of bail, like the effect of offering low bail amounts. He submitted that the amounts offered is what the majority of the applicants can afford. He argued that bail should not be granted in excessive amounts as that will be equal to denying the applicants bail.

On the State's submission that the applicants had behaved in a manner indicative of an intention to abscond he submitted that most of the applicants were arrested at their homes.

On interference with witnesses, he argued that the identity of the witnesses was not revealed so the applicants cannot interfere with witnesses they do not know. He concluded his reply by submitting that the presumption of innocence is still operating in the applicants' favour and that the applicants had discharged the onus on them of proving that they are proper candidates for bail.

Analysis of submissions and evidence

The submissions made by both parties establish the following general evidence which has to be considered alongside that which is personal to each applicant.

1. The applicants are facing a serious charge of murder of a police officer, during the execution of his duties, committed in circumstances of public violence.

2. None of the applicants were arrested at the scene.

3. Some were arrested at lodges, during night raids by the police, and while travelling in commuter omnibuses within Glen View.

4. That the exhibits were taken by the police and are with the police.

5. That some applicants are holders of travel documents which are now with the police.

6. That the commission of the offence was witnessed by police intelligence officers and members of the public.

7. That about 50 MDC-(T) youths had, on that day previously, gathered at Glen View 4 Shopping Centre from which they had been dispersed by police intelligence officers.

8. That they regrouped and gathered at Glen View 3 Shopping Centre from which the deceased and other uniformed police officers tried to disperse them after having been called to the scene at the instance of police intelligence officers who were at Glen View 3 Shopping Centre.

9. That on arrival, the deceased inquired from some MDC-(T) youths where their leaders were and was advised that they were in Munyarari Night Club.

10. That they entered the night club, after which the group shouted (matatya ngaauraiwe), and the group started throwing various missiles at the deceased and his officers.

11. That the deceased was hit by a half brick on the side of his head, kicked, and trampled by the group.

12. The group then left the scene as follows; some jumped into two motor vehicles which were driven from the scene at high speed by two of the applicants.

13. Those who remained behind removed their T/shirts to avoid being identified and walked away….,.

In this case, the State's strong objection to bail is based on the possibility that the applicants will abscond if granted bail and the possibility that they may interfere with State witnesses who are already assisting the police and those who are likely to come forward with information on the deceased's murder. The State is also concerned about the possibility of the applicants disturbing public order or undermining public peace and security, and undermining or jeopardising the objectives or proper functioning of the criminal justice system.

The last three grounds are not strong, and, in fact, section 117(2)(b) of the Criminal Procedure and Evidence Act [Chapter 9:07], which relates to disturbing peace, order, and security, is only applicable in exceptional circumstances. This, in my view, would apply if the applicants can, on being released on bail, engage in public violence which would disturb public order and undermine public, peace, and security. For this ground to apply, there must be clear evidence establishing the applicants' propensity to disturb public order and undermine peace and security. The respondent's allegation that the applicants can do so is only based on what they are alleged to have done in this case. That does not establish a strong propensity as it is still just an allegation still to be proved at their trial. What would establish a strong propensity is evidence that the applicant has previous convictions for public violence and is facing several similar cases. The use of the words “in exceptional circumstances” in section 117(2)(b) of the Criminal Procedure and Evidence Act [Chapter 9:07] clearly indicates that the legislature was conscious of the remote possibility of this ground ever being ordinarily applicable. Therefore, whenever this ground is advanced it should be carefully considered to ascertain whether that likelihood is present.

I am satisfied that it has not been established in this case.

The undermining or jeopardising of the objectives or proper functioning of the criminal justice system, including the bail system, was also relied on as a ground for denying the applicants bail. An applicant must be proved to have done things which can affect the proper functioning of the criminal justice system or to be likely to do so. If an applicant is likely to interfere with witnesses or evidence he may be denied bail on this ground but only if that interference cannot be restrained by imposition of a bail condition restraining him from doing so. If he is likely to skip bail and abscond he is likely to affect the bail system. This ground will therefore be dealt with together with the State's grounds of abscondment and interference with witnesses and evidence.

The State strongly argued that the applicants are likely to abscond because the State's case against them is strong and that, if convicted, they are likely to face capital punishment or a long term of imprisonment. It was, on the other hand, argued by counsel for the applicants that the State's case is weak and cannot induce the applicants to abscond. The fact that the deceased died at Glen View 3 Shopping Centre after being attacked by a mob is not in dispute.

What is in dispute is who was in that mob.

The applicants say they were not part of that mob while the State says they were. The State says police internal security officers saw the applicants at Glen View 4 and caused their dispersal. They again saw them at Glen View 3 and called the deceased and other uniformed police officers to come and disperse them. The fact that police internal security officers were monitoring the applicants' movements tend to strengthen the State's case. If the officers observed the applicants for a long time their evidence may be strong enough at trial and knowledge of that may have an effect on the applicants. However, the mere fact that the State's case is strong is not, on its own, enough to deny an applicant bail.

The circumstances of each applicant will therefore be considered to determine each applicant's suitability for bail.

It was submitted that most of the applicants have travel documents which can enable them to leave the court's jurisdiction. It was also argued that those without travel documents can leave the country without travel documents or hide within the country. The applicants' counsel's response to that is that the police already have the passports of those who have such documents and they are willing to surrender them to the court. The surrendering of an applicant's travel documents usually satisfies the State's fear of abscondment unless there are other pointers to the applicant's intention to abscond.

The applicants' interference with witnesses was advanced as a reason for not granting the applicants bail. The names of the witnesses were not revealed, leaving the applicants without knowledge of who the witnesses are and therefore unlikely to interfere with unknown witnesses. The real and satisfactory fear is that other likely witnesses may not come forward to assist the police if the applicants are released on bail. However, that fear does not affect the applicants as they have already been identified and arrested. It can be ordered that they do not interfere with State witnesses and evidence.

In an application of this nature, the starting point should be an inclination to grant bail - if it's not in the interests of justice for the applicants to remain in custody. I am satisfied that with stringent conditions, the applicants who have not shown a propensity to abscond can be granted bail. I am, however, also satisfied that those who have shown a propensity to abscond should not be granted bail as they are flight risks. This calls for the assessment of each applicant's circumstances as per the State and the applicant's evidence and submissions.

HB24-11 : TAKAFA VUMBUNU vs THE STATE
Ruled By: NDOU J

The applicant seeks bail pending his trial before a Regional Magistrate. This application was made after the trial date had been set. The bail is opposed on the sole ground of likelihood of abscondment. The brief facts of the case are the following. On 25 October 2010, the complainant parked her Mazda 323 between 2nd and ...

HH221-10 : TITO MWANA vs THE STATE
Ruled By: CHIWESHE JP

On 13 July 2010 the applicant appeared before my brother HLATSHWAYO J seeking bail pending trial. His application was duly dismissed in view of the following factors - (i) That investigations were complete and the State was ready for trial; (ii) That offences of this nature are on the increase and that vulnerable members of society such as ...

HB53-11 : CHARLES THOMAS and JOHN GAZI and PAUL SIWELA vs THE STATE
Ruled By: NDOU J

The applicants seek bail pending trial.

HH224-10 : KAMUDYARIWA TIRIVANGANI vs THE STATE
Ruled By: CHIWESHE JP

The applicant seeks bail pending trial. He is employed by the Zimbabwe Republic Police and is resident at 1207 Muzikanwi Street, Dzivarasekwa, Harare. He is married and supports his family and members of his extended family. He does not hold a passport and, if granted bail, he would be able to report at his nearest police ...

The applicant seeks bail pending trial.

He is employed by the Zimbabwe Republic Police and is resident at 1207 Muzikanwi Street, Dzivarasekwa, Harare. He is married and supports his family and members of his extended family. He does not hold a passport and, if granted bail, he would be able to report at his nearest police station at least once a week.

In a bail application, it is now established that the following factors, among others, should be taken into account, namely -

(i) Whether the applicant is likely to abscond and thereby not stand trial;

(ii) Whether the applicant is likely to interfere with witnesses or investigations if granted bail, and

(iii) Whether the applicant is likely to commit further offences while on bail.

The State is opposed to this application primarily because it is feared the applicant may abscond and thus not stand trial to the prejudice of the due administration of justice.

The applicant is a member of the Zimbabwe Republic Police. He is aged twenty-eight and resides at 1207 Muzikanwi Street, Dzivarasekwa, Harare. His co-accused, Samson Chigwende, is a member of the Police Special Constabulary in Dzivarasekwa, Harare. He is also aged twenty-eight. He resides at 7802 Tynwald South and works for ZESA.

On being searched, the applicant was found in possession of the 1209 Nokia cellphone which was positively identified as belonging to D.G. Neville of 42 Couril Drive, Mount Pleasant, Harare.

In addition, the applicant has a legitimate complaint – that is, it has taken too long for the State to bring him to trial. He has awaited trial since his arrest on 30 January 2010.

Counsel for the respondent, and the trial prosecutor, have advised that trial has since commenced.

The applicant has attempted to convince the court that these two officers of the court are deliberately misleading the court as to the progress made vis-a-vis trial procedures. He maintains that no trial is in sight. In a sworn statement made available to the court, the trial prosecutor, Mr Norman Tsarwe, states that on 17 September 2010 the applicant and his co-accused cross examined the first State witness. It was not possible to call the second State witness as time had run out. The first and second witnesses are both convicts serving prison terms (presumably these would be Eddie Chirwa and Richard Zimba). They have to be conveyed to and from court by Prisons. Sometimes Prisons would inadvertently leave them behind when conveying other prisoners to court. On other occasions, Prisons would not do the court run as they had no fuel. On this particular day, 17 September 2010, it was CID Homicide who had to bring these witnesses to court. Mr Tsarwe further states that trial has been adjourned to 1 October 2010. It is intended to call on that day the second convicted witness and, thereafter, three more State witnesses.

In addition, counsel for the respondent has advised the court that she had physically visited the Magistrate's Court to enquire from officers thereat as to what progress had been made vis a vis the trial.

I have no reason to doubt her integrity in that regard. On the contrary, the applicant's assertions that the State was doing everything to block the commencement of the trial, and the further suggestion that State counsel is deliberately misleading the court, should be dismissed for want of substantiation.

The probabilities of abscondment, in my view, are very high in the present case. The applicant is facing a very serious charge, and, if convicted, will be sentenced to a long term of imprisonment. That, in itself, is likely to induce abscondment on his part. Further, the evidence against him is strong. In addition to the evidence of his alleged accomplices, he has to explain how he came to be in possession of the Nokia cellphone (identified by serial number) belonging to one of the victims of the spate of armed robberies in which it is alleged he took part, directly or indirectly. The prospects, therefore, of conviction on one or more of the five charges preferred against him are good. I therefore share the views of the State that the applicant, faced with such prospects and such consequences, is likely to abscond.

It was for these reasons that I dismissed the application for admission to bail.

HB04-10 : VITALIS SHAMBIRA vs THE STATE
Ruled By: CHEDA J

This is an application for bail pending trial. The applicant is a member of the Zimbabwe National Army based in Plumtree. The brief allegations against him are that he is facing two charges, firstly, that he wrote a threatening letter to a Magistrate who was presiding over a case involving his colleagues who are facing charges ...

This is an application for bail pending trial.

The applicant is a member of the Zimbabwe National Army based in Plumtree. The brief allegations against him are that he is facing two charges, firstly, that he wrote a threatening letter to a Magistrate who was presiding over a case involving his colleagues who are facing charges of attempted murder and discharging a firearm in public. The second charge is that he attempted to kidnap the complainant's daughter when she was at school.

The applicant now applies for bail on the basis that he will not abscond and will not endanger the safety of the public.

The respondent is opposing bail on three grounds, namely-

1) Abscondment;

2) Public safety, and

3) Interference with State witnesses.

These courts' stance towards the granting of bail to suspects is that they should lean in favour of the liberty of suspects unless they are convincing reasons which clearly indicate that the granting of bail is not suitable in the circumstances.

It has been argued by the respondent that the applicant is likely to abscond.

Even if this is a possibility, in some instances, this can be effectively taken care of by the imposition of strict bail conditions to prevent his possible abscondment.

That leaves me with the task of exploring the other two grounds for their opposition.

It is trite that, where possible, a suspect should not be deprived of his liberty unless his release will, and not “may”, interfere with the due process of law and crime control. In the present case, the applicant has positively shown his desire to interfere with both due process and crime control.

The applicant has threatened a Magistrate with death and also attempted to kidnap his daughter. This, to me, is a serious threat to public safety. A person who threatens another with death is a potential danger to society in general and to the individual in particular. The applicant's position is exarcebated by the fact that the threat was directed at the officer who is charged with dispensing justice. This type of conduct runs contrary to the independence of the judiciary in that a judiciary officer's oath of office to dispense justice without fear of favour is highly compromised. A judiciary officer's exercise of a judicial function should never be interfered with by anybody at all.

What the applicant did is unlawful and goes to demonstrate that he is a danger to the proper administration of justice. In view of his determination to frustrate the smooth running of the wheels of justice he is not a person who should be liberated pending trial.

Anyone who has the nerve to take such a bold step to interfere with the maintenance of law and order in the manner described above should not be granted liberty as this will defeat the course of justice.

In light of the above, the applicant is denied bail.

HB112-11 : BONGANI SICELO MBAMBO vs THE STATE
Ruled By: MATHONSI J

This is an application for bail pending trial which was only filed on 3 August 2011 when the applicant and his 3 co-accused were arrested in May 2010. The applicant had not applied for bail until now.The applicant and his co-accused are facing a charge of armed robbery the allegations being that on 27 March ...

HB115-11 : PISI NDLOVU (NEE NXUMALO) vs THE STATE
Ruled By: NDOU J

This is an application for bail pending trial.

HB124-11 : ROPAFADZO MHUNGU vs THE STATE
Ruled By: CHEDA J

This is an application for bail pending trial.The respondent opposed the application on the basis that, if released on bail, the applicant is likely to abscond and that despite the fact that his co-accused has been admitted to bail, his circumstances were different.The applicant is facing an allegation of robbery. It is alleged that on ...

HB47-10 : MORRIS DUWA vs THE STATE
Ruled By: CHEDA J

This is an application for bail pending trial.The applicant is facing a charge of rape. The brief background of this case is that it is alleged that on the 14th March 2010 the accused raped a fifteen (15) year old girl near Magwegwe Secondary School in Bulawayo. The alleged offence was committed while he was ...

This is an application for bail pending trial.

The applicant is facing a charge of rape. The brief background of this case is that it is alleged that on the 14th March 2010 the accused raped a fifteen (15) year old girl near Magwegwe Secondary School in Bulawayo.

The alleged offence was committed while he was on bail for a similar offence.

Our courts' approach on applications for bail pending trial is that suspects should be granted bail as a general rule on the basis of the principle of the presumption of innocence until proven guilty by a competent court. It is on that principle that our courts invariably lean in favour of the granting of bail unless there are compelling reasons against such granting. Bail should be granted as a safeguard to ensure that a suspect should have his day in court as this is his constitutional right. However, even if he will ultimately have his day in court, bail may be denied if it is not in the best interest of justice for him to await trial while out of custody.

A person who, when on bail, commits a similar offence, in my opinion, should not be easily granted bail as his actions would have demonstrated a brazen contempt of the courts that previously granted him bail. Such a person, regardless of the allegations, alone, without more, is not a suitable candidate for bail, as to release him will not be in the best interest of both justice and the society he lives in. Some of the inherent requirements for where a suspect is released on bail is the undertaking that he will not abscond, interfere with State witnesses and most importantly that he will not commit similar offences. Where a suspect is granted bail on the believe that he will not commit a similar offence, but, goes ahead to, thereby breaching that undertaking, should not be granted bail as he would have betrayed the judicial trust bestowed on him. While he is still facing an allegation only, in my view, the court should not ignore the fact that he would have been sailing too close to the wind which he should not have been doing under those circumstances.

In casu, the applicant has abused his right to bail and as such I find no compelling reason to accord him that chance again.

For the above reasons this application is dismissed.

HH76-13 : MATOBO KINGSLEY KASHWEKA vs THE STATE
Ruled By: MWAYERA J

The applicant approached the court with an application for bail pending trial….,. The State opposed the application for bail on the basis that admission of the application to bail will put the interest of administration of justice into jeopardy. The applicant, on the other hand, presented argument through counsel that the applicant is a suitable candidate for bail ...

HH88-13 : THABANI MPOFU and FELIX FINR FANI and WARSHIP DUMBA and METHULI TSHUMA vs THE STATE
Ruled By: BHUNU J

Turning to the other charges, the magistrate, again, gave truncated scanty reasons for denying the appellants bail without laying the factual basis for her decision. In her ruling, this is what she had to say - “Court rules that accused are facing serious offences which interfere with public safety and State security. There is a likelihood ...

“Court rules that accused are facing serious offences which interfere with public safety and State security. There is a likelihood that if granted bail they can interfere with investigations and/or witnesses. The likelihood of absconding court is high considering the seriousness of the offence. For these reasons Court denies all the accused bail.”

Detention pending trial amounts to administrative detention rather than penal detention. It is therefore of utmost importance for judicial officers to always bear in mind that the presumption of innocence still operates in favour of the accused at every stage of the proceedings before conviction. Thus, the arrest and detention of an accused person may constitute a serious infringement of his right to freedom should it turn out that he was innocent after all.

That is, however, not to say that undeserving accused persons should not be denied bail. Judicial officers should by all means deny undeserving applicants bail. The tragedy is, however, that there is no magic wand for determining who is guilty or innocent at this critical bail application stage, hence the development of crucial guidelines developed over the years by our Superior Courts. It is needless to say that judicial officers are duty-bound to meticulously observe laid down judicial safeguards propounded through the cases so as to avoid straying into the wilderness of injustice. A casual perusal of the magistrate's handling of both matters betrays scant regard to the guiding principles laid down by the Supreme Court and this Court. The presiding judicial officer is duty bound to give a cogent, well-reasoned, basis for his decision. The absence of such reasons needlessly creates a situation of impunity and insecurity - even where the ultimate decision may be correct. Failure to adhere to laid down procedures and guidelines in determining bail applications may provide an escape route for unsuitable candidates on the basis of fundamental misdirection.

Had the magistrate looked at the judicial safeguards laid down in the leading cases of S v Hussey 1991 (2) ZLR 187 (SC) and S v Maharaj 1976 (3) SA 205 she would, undoubtedly, have realized the need to back up her conclusions by cogent findings of fact. This she did not do resulting in a serious misdirection and a travesty of justice. That being the case, this court is at large to determine the matter on the merits.

As I have already pointed out, all the appellants are well known public figures who really have nowhere to hide in this country save to skip our borders. Though our borders have been held to be porous our police force has a proven track record of tracking and apprehending fugitives from justice as amply demonstrated in the legendary cases of Masendeke and Chidumo. The nature of the offences charged and the attendant penalties providing the option of a fine are unlikely to provide sufficient incentive for the appellants, who are of fixed abode and have firm roots in this country, to abscond.

I am therefore of the firm view that granting the appellants bail with stringent conditions will meet the justice of the case. The draft orders filed in respect of each case are sufficient to ensure that the ends of justice are not compromised. Each appellant is accordingly granted bail in terms of the draft orders filed of record.

HB80-13 : JEPHIAS MANGISI vs THE STATE
Ruled By: MAKONESE J

The applicant is facing a charge of contravening section 47 of the Criminal Law (Codification and Reform) Act [Chapter 9:23], murder. The allegations are that on the 11th December 2012, and at Stephen Runeta's homestead, at Nkayi, around 2000 hours, the applicant proceeded to the deceased's home armed with a spear. Upon arrival, the applicant forced open ...

The applicant is facing a charge of contravening section 47 of the Criminal Law (Codification and Reform) Act [Chapter 9:23], murder.

The allegations are that on the 11^th December 2012, and at Stephen Runeta's homestead, at Nkayi, around 2000 hours, the applicant proceeded to the deceased's home armed with a spear. Upon arrival, the applicant forced open the door to the deceased's bedroom. The deceased was asleep at the time. The applicant then struck the deceased once on the lower side of the left breast with a spear. He struck the deceased twice on the lower side of the right ear twice with a claw hummer. The deceased died instantly as a result of the injuries sustained. The applicant fled the scene.

The applicant now seeks bail pending trial and has urged the court to accept that he is a suitable candidate for bail. He argues that he will not abscond and will stand trial.

The agreed facts, however, show that the applicant was arrested by Constable Gondo and other police detectives in Gwanda aboard a South African bound Toyota Quantum omnibus. The applicant had paid the driver the sum of R1,400= to be transported to South Africa. Had it not been for an informer who told the police that the applicant was on his way out of the country the applicant would have succeeded in fleeing into neighbouring South Africa.

The Investigating Officer, Maimbo Shingirayi Givemore, swore to an affidavit opposing bail in which he stated as follows:

“5. Accused was later arrested in Gwanda by Police officers from Zimbabwe Republic Police (ZRP) Pumula, Bulawayo on the 27th December 2012. I send him to court in Nkayi Magistrates Court (sic).

6. I now oppose bail because of the following reasons:

(i) The accused person is a flight risk. He was arrested in Gwanda abode a cross-border operator vehicle by Police officers from Zimbabwe Republic Police Pumula in Bulawayo. (See copy marked annexure 1, the Statement from the arresting detail).

(ii) The accused person already interfered with witnesses as he severely assaulted MILIA NCUBE mother to the deceased, using a hammer, soon after committing the murder.

(iii) The accused is already serving at Nkayi Prison for the assault case on MILIA NCUBE. ZRP Gwelutshena C.R13/12/12 and Nkayi Magistrates Court CRB77/03 refers. (See copy marked annexure 2, proof of conviction from Nkayi Magistrates Court.”

Counsel for the applicant did not dispute that the applicant was arrested by police detectives on his way to South Africa. He was, in fact, absconding and leaving the country. He demonstrated that he has the capacity to flee the jurisdiction of these courts in order to avoid trial. The fact that he was apprehended is obviously a result of the swift action taken by the police who managed to track down the applicant before he could make good his escape.

It is now trite, in matters of bail, that where the applicant has actually shown a willingness and determination to abscond then the courts will be slow to grant, let alone consider, bail pending trial. There is no evidence before the court that the applicant's desire to abscond has now somehow evaporated. No cogent reasons have been advanced before the court to show that the applicant will now want to stand trial and not attempt to abscond. I do not consider that any stringent reporting conditions would safeguard the interests of justice. The applicant is facing serious allegations of murder and the propensity to abscond is real under the circumstances.

HH06-14 : LEON MAWONDO vs THE STATE
Ruled By: MATANDA-MOYO J

This is an application for bail pending trial. The applicant is facing a charge of rape as defined in section 65 of the Criminal Law (Codification and Reform) Act [Chapter 9:23] and escaping from lawful custody as defined in section 185(1)(a) of the Criminal Law (Codification and Reform) Act [Chapter 9:23]. The applicant's trial is imminent ...

HB114-11 : MONICA LUBIMBI vs THE STATE
Ruled By: NDOU J

It is alleged that sometime between 27 July and 3 August 2011, the applicant and seven (7) accomplices kidnapped and killed the now deceased, Mgoli Ndlovu Majola. It is alleged that after the murder they removed his tongue, brain, nose, lips and four fingers. It is alleged that the applicant took the now deceased's ...

The application for bail is opposed on two grounds, that is:

(i) Likelihood of abscondment; and

(ii) Likelihood of interference with investigations.

The respondent filed an affidavit deposed to by the Investigating Officer, O. Mudyazvavanhu, of the Criminal Investigations Department, Homicide Squad, Bulawayo. What can be gleaned from the evidence therein is that the applicant was linked to the offence by one Nkosilathi Khumalo; that is Accused 2 in the case.

According to the Investigating Officer, Nkosilathi Khumalo was implicated by his own sister Cecilia Khumalo. After his arrest, Nkosilathi Khumalo indicated that he organised the murder with his aunt, Pisi Nxumalo; that is Accused 1 in the matter. He said that he and Pisi Nxumalo then hired the other six accomplices, including the applicant, to carry out the murder. Xolani Ncube's vehicle was used in the kidnapping of the now deceased from his house. He was taken to a bushy area in Richmond. After the murder, it is alleged that Nkosilathi Khumalo and other accomplices took the tongue to the applicant.

The inference is that the applicant was not at scene where the murder occurred but was aware of it because she “had requested for the parts.” There is no other evidence linking the applicant to the offence of murder other than the statement of the accomplice Nkosilathi Khumalo. It has been brought to my attention by counsel for the applicant that when these ex-curial statements implicating the applicant were taken to the Magistrates Court for confirmation the makers disowned them resulting in them not being confirmed. In a nutshell, the State is relying on these unconfirmed ex-curial statements in linking the applicant with the murder.

This is evinced by the contents of the Request For Remand Form 242 which describes how the applicant's accomplices are alleged to have participated in the murder. There are also allegations that they contacted an Inyanga to assist in the murder. They are also alleged to have made “positive indications at the scene.” All these allegations do not state participation of the applicant save for the implication by Nkosilathi Khumalo. There is also a discrepancy on what was taken to the applicant. In the Form 242, the accomplices took the tongue, fingers and brain to the applicant and yet the Investigating Officer in the sworn statement alludes to the tongue only.

The applicant is a Councillor for Ward 9 of the Bulawayo City Council. She is an elderly woman aged 57. She owns the immovable property that she lives in. She is a mother of four (4) children. The parts allegedly given to her were not found in her possession. As alluded to above, the alleged accomplice who implicated her has disowned the statement before a magistrate resulting in the ex-curial statement not being confirmed. The court should always lean in favour of granting bail provided that the interests of justice are not prejudiced – S v Biti 2002 (1) ZLR 115 (H); Attorney General v Kanoda HH200-90; S v Hussey 1991 (2) ZLR 19 (S); and Aitken and Another v Attorney General 1992 (1) ZLR 255 (S). Although the charge here is serious, looking at all the other relevant factors outlined above, the seriousness of the offence is not likely to induce the applicant to abscond. The applicant is a suitable candidate for bail. The fears raised by the respondent can be addressed by the imposition of stringent conditions.

Accordingly it is ordered that:

(1) The applicant be and is hereby admitted to bail in the sum of US$300=.

(2) The applicant is to reside at Number 3755 Magwegwe North, Bulawayo until the finalisation of the matter.

(3) The applicant shall not interfere with investigations or State witnesses in this matter.

(4) The applicant shall report thrice a week on Mondays, Wednesdays and Fridays between the hours of 6am and 6pm at Magwegwe Police Station until the matter is finalised.

(5) The applicant shall not leave the 40 kilometre radius of the Bulawayo Main Post Office without a written authority of a Bulawayo magistrate.

HH219-14 : NORMAN KONDWANE and SHEPHERD KATIYO and JOSEPH GANYANI and RUSSEL MHUKAYESANGO vs THE STATE
Ruled By: CHIGUMBA J

It was submitted, on behalf of the applicants, that in determining whether the accused persons will stand trial if admitted to bail, the court ought to be governed by the following principles:1. Whether the applicants are likely to stand trial.2. Whether the applicants are likely to interfere with witnesses or investigations.3. Whether the applicants ...

It was submitted, on behalf of the applicants, that in determining whether the accused persons will stand trial if admitted to bail, the court ought to be governed by the following principles:

1. Whether the applicants are likely to stand trial.

2. Whether the applicants are likely to interfere with witnesses or investigations.

3. Whether the applicants are likely to commit similar offences if admitted to bail.

4. Other good and sufficient considerations.

See S v Chiadzwa 1988 (2) ZLR 19 (S); James Chafungamoyo Makamba v The State SC20-04; and Aitken & Anor v Attorney General 1992 (1) ZLR 249….,.

Courts are guided, in their consideration of the suitability of any candidate for bail pending trial, by the provisions of section 117(1) of the Criminal Procedure and Evidence Act [Chapter 9:07] which provides that:

“117 Entitlement to bail

(1) Subject to this section and section 32, a person who is in custody in respect of an offence shall be entitled to be released on bail at any time after he or she has appeared in court on a charge and before sentence is imposed, unless the court finds that it is in the interests of justice that he or she should be detained in custody.”

The question that the court must determine in this matter is whether it is in the interests of justice that the applicants be detained in custody because the concerns raised by the State have merit; that they are likely to interfere with witnesses, and/or that they are likely to abscond and not stand trial, and/or that they are likely to commit similar offences if admitted to bail. In other words, the court must consider the evidence tendered on behalf of the State to substantiate these allegations, and it is only where the court makes a finding that the State's allegations are well-founded, and the applicants fail to discharge the onus on them to establish that they are good candidates to be admitted to bail, that a finding can be made that it is in the interests of justice that the applicants be detained in custody pending trial. Some of the factors that the court ought to consider in establishing whether the State's allegations are well founded are set out in section 117 of the Criminal Procedure and Evidence Act [Chapter 9:07]. In considering whether it will be in the interests of justice to detain the accused in custody on the basis of cogent evidence that if released on bail he is not likely to stand trial, or that he will attempt to influence and intimidate witnesses, the court is enjoined to consider the following factors:

Where it is alleged that the accused will abscond and not stand trial:

“(i) The ties of the accused to the place of trial.

(ii) The existence and location of assets held by the accused.

(iii) The accused's means of travel and his or her possession of, or access to, travel documents.

(iv) The nature and gravity of the offence or the nature and gravity of the likely penalty therefor.

(v) The strength of the case for the prosecution and the corresponding incentive of the accused to flee.

(vi) The efficacy of the amount or nature of the bail and enforceability of any bail conditions.

(vii) Any other factor, which, in the opinion of the court, should be taken into account.”

The applicants have supplied addresses in Highfield, Budiriro, Glen View and Mabvuku where they propose to reside until their trial is finalized. The State has raised fears that since the applicants do not own these places of residence, the transient nature of their occupation raises an inference that they are likely to abscond and find accommodation as lodgers elsewhere.

With respect, I disagree with the inference made by the respondent.

The average Zimbabwean is a lodger. What is material is whether the respondent verified the given addresses and found the information given by the applicants to be correct; that they reside at those addresses. If home ownership was made a pre-requisite to admission to bail, that would be tantamount to a declaration that the average Zimbabwean is not a suitable candidate for admission to bail. The Investigating Officer confirmed that all the addresses supplied by the applicants were verified.

That is the end of the matter….,.

The offence that the applicants are charged with is a grave one, with a penalty of imprisonment for life or any shorter period, if the crime was committed in aggravating circumstances or, in any other case,to a fine not exceeding level fourteen or not exceeding twice the value of the property that forms the subject of the charge, whichever, is the greater; or to imprisonment for a period not exceeding fifty years; or both: Some of the allegations against the applicants contained averments that an iron bar was used, and/or a knife, which constitutes aggravating circumstances, and attracts a possible life sentence. The gravity of the offence and the likely penalty are factors which a court can consider in determining whether an applicant for bail is likely to abscond, especially where the prosecution case is strong, such as in this case. All the applicants were positively identified by the complainants in identification parades. No evidence was placed before the court, by the applicants, to rebut the presumption raised against them by these positive identifications. It was not suggested that the complainants were mistaken, or that the parades were not conducted in a proper manner. In fact, the applicants failed to discharge the onus incumbent on them in bail applications, on a balance of probabilities that the identification parades are of no probative value. They offered no explanations at all as to how all of them could have been positively identified as robbers by the complainants. This is the most damning evidence against them, which links them to the commission of the offences, and they offer no explanation as to how this possibly came about.

All the applicants were arrested in the course of ongoing police investigations. The Investigating Officer told the court that the police were tipped off by the applicants' accomplices. The applicants did not comment on this averment or attempt to discredit it except to question the circumstances in which the police discharged a firearm at the Budiriro 5 turnoff. The applicants made a bald denial of any involvement in the commission of the offences which does not suffice to meet the requirement that they discharge the onus on them by adducing proof on a balance of probabilities….,.

It has been held that the more serious the charge the greater will be the temptation to abscond regard being had to the likely penalty upon conviction. Coupled with the strength of the State case, and on examination of all the circumstances of the case, the court finds that the applicants are likely to abscond if admitted to bail. In S v Hudson 1980 (4) SA 145…, the court stated that:

“Where an accused applies for bail and confirms, on oath, that he has no intention of absconding, due weight has, of course, to be given to this statement on oath. However, since an accused that does have such an intention is hardly likely to admit it, implicit reliance cannot be placed on the mere say-so of the accused. The court should examine the circumstances.”

Where it is alleged that the accused will attempt to interfere with witnesses or tamper with the evidence, or interfere with investigations, the court must consider the following factors set out in section 117 of the Criminal Procedure and Evidence Act [Chapter 9:07]:

“(i) Whether the accused is familiar with any witness or the evidence.

(ii) Whether any witness has made a statement.

(iii) Whether the investigation is completed.

(iv) The accused's relationship with any witness and the extent to which the witness may be influenced by the accused.

(v) The efficacy of the amount or nature of the bail and enforceability of any bail conditions.

(vi) The ease with which any evidence can be concealed or destroyed.

(vii) Any other factor, which, in the opinion of the court, should be taken into account.”

It is this court's view that the State's fears that the applicants will attempt to interfere with witnesses is baseless and without foundation. This is so because insufficient evidence was placed before the court to establish the likelihood of this happening. We are told that all the applicants were positively identified by some of the complainants. The complainants were not identified by name. There is no evidence that the applicants know the complainants or will be able to have access to them. We are told that investigations are ongoing yet we are not told whether trial is imminent. We are told that some of the stolen property has not been recovered yet we are not told whether the applicants are in a position to obstruct police investigations and how they will be able to do so. This court finds, therefore, that there is no real risk that the applicants will interfere with witnesses. See S v Bennett 1976 (3) SA 652 (C).

This court also finds that the imposition of bail conditions in this case is not likely to deter the applicants from absconding for reasons which the court has already canvassed above.

The court is entitled to consider any relevant factor in considering the suitability of the applicants to be admitted to bail pending trial. One of those factors is consideration of whether the admission of the applicants to bail will undermine or jeopardize the public confidence in the criminal justice system {section 117(3)(e)(v) of the Criminal Procedure and Evidence Act [Chapter 9:07] }. The public expects that people arrested on serious charges be kept in custody pending their trial. Sometimes, such people may also be kept in custody for their own protection, to avoid lawlessness, where their release may tempt members of the public to mete out instant justice. The evidence before the court that these offences are now prevalent, that two hundred reports have been made to the police since January this year, that eight people a day are preyed upon by robbers posing as providers of public transport, is a cause for concern. This factor, coupled with the surrounding circumstances of the applicants' arrests after tip offs by their accomplices, their alleged positive identification by the complainants, the recovery of the stolen property, and the fake number plates, the failure to discharge the onus incumbent on them on a balance of probabilities, the strength of the prosecution case; all these factors, combined, point to the interests of justice not being served by the admission of the applicants to bail pending trial.

The court must weigh the interests of justice against the right of the accused to his personal freedom, with particular emphasis on the likely prejudice he would suffer were he to be detained in custody. The court finds that the interests of justice would be prejudiced by the admission of the applicants to bail because there is cogent evidence that the prosecution case against them is strong, and that the likely penalty severe, because the offences were allegedly committed in aggravating circumstances. The applicants have failed to discharge the onus on them, to place sufficient evidence before the court, to satisfy the court that, on a balance of probabilities, they will stand trial if released on bail. This means that they are not a suitable candidate for admission to bail.

The application for bail is dismissed for these reasons.

HH220-14 : MACDONALD S. vs THE STATE
Ruled By: CHIGUMBA J

On the risk of interference with State witnesses, the applicant submitted that none of the State witnesses are known to him, and that, all the evidence from those witnesses has so far been recorded. The applicant contended that most of the witnesses are police detectives, and that it is unlikely that they would be susceptible to his influence if he tried. He submitted that it is not likely that he will interfere with any of the witnesses in these circumstances and relied on the case of S v Ncube & Anor HB27-03 as authority for that proposition.

The applicant submitted that there is no evidence that he will commit other offences if admitted to bail. He contended that there is no evidence that he is a habitual criminal, and that the State has not alleged that he is a person of criminal disposition who has a propensity to commit similar offences. The applicant submitted that the docket is complete, and that the matter is ready for trial but he has not yet been allocated a trial date; so he surmises that the State is not ready to proceed to trial….,.

The applicant filed an affidavit in terms of section 117(6)(a) of the Criminal Procedure and Evidence Act [Chapter 9:07], on 10 April 2014, in response to a challenge by the respondent that his failure to comply with that mandatory provision, coupled with the applicant's failure to provide information which would exculpate him, combined, pointed strongly to the conclusion that applicant was not a suitable candidate for admission to bail pending trial.

Finally, the respondent indicated that the applicant's trial date had been set - it was 23 April 2014….,.

Courts are guided in their consideration of the suitability of any candidate for bail pending trial, by the provisions of section 117(1) of the Criminal Procedure and Evidence Act [Chapter 9:07] which provides that:

“117 Entitlement to bail

The question that the court must determine in this matter is whether it is in the interests of justice that the applicant be detained in custody because the concerns raised by the State have merit; that he is likely to interfere with witnesses, and/or that he is likely to abscond and not stand trial. In other words, the court must consider the evidence tendered on behalf of the State, to substantiate these allegations, and it is only where the court makes a finding that the State's allegations are well-founded, and the applicant fails to discharge the onus on him to establish that he is a good candidate to be admitted to bail, that a finding can be made that it is in the interests of justice that the applicant be detained in custody. Some of the factors that the court ought to consider in establishing whether the State's allegations are well founded are set out in section 117 of the Criminal Procedure and Evidence Act [Chapter 9:07]. In considering whether it will be in the interests of justice to detain the accused in custody on the basis of cogent evidence that if released on bail he is not likely to stand trial, or that he will attempt to influence and intimidate witnesses, the court is enjoined to consider the following factors:

Where it is alleged that the accused will abscond and not stand trial:

“(i) The ties of the accused to the place of trial.

(ii) The existence and location of assets held by the accused.

(iii) The accused's means of travel and his or her possession of, or access to, travel documents.

(iv) The nature and gravity of the offence or the nature and gravity of the likely penalty therefor.

(v) The strength of the case for the prosecution and the corresponding incentive of the accused to flee.

(vi) The efficacy of the amount or nature of the bail and enforceability of any bail conditions.

(vii) Any other factor which, in the opinion of the court, should be taken into account.”…

The offence that the applicant is charged with is a grave one, with a penalty of a fine not exceeding level fourteen or twice the value of the stolen property, whichever is the greater; or imprisonment for a period not exceeding twenty-five years; or both. The gravity of the offence and the likely penalty are factors which a court can consider in determining whether an applicant for bail is likely to abscond, especially where the prosecution case is strong, such as in this case. The registration book of the vehicle in question is in the name of Noel Goves Quta. The applicant's affidavit, deposed to on 24 January 2014, by this gentleman, purports to give him permission to use the motor vehicle for a period of thirty days for purposes of doing business in any SADC country. It would have exculpated the applicant if he had simply supplied information leading to Mr. Quta's whereabouts. There is an original registration book which shows the vehicle as belonging to JG Superb Auto Dealers. The vehicle bore a different number plate when it was presented at Nyamapanda Border post to the one on the original registration book.

The motor vehicle was stolen in South Africa, on 26 January 2014, and a report made to Wierdabrug police station in Pretoria. The applicant initially told the Investigating Officer that the fake registration book and the affidavit of Mr. Quta were given to him by Charles Ogala, a fellow Malawian national living in South Africa. In his affidavit, in terms of section 117(6)(a) of the Criminal Procedure and Evidence Act [Chapter 9:07], filed of record on 10 April 2014, the applicant clearly states, in paragraph 4, that he was engaged as a driver by Charles Phiri, who gave him the affidavit authorizing him to take the vehicle to Malawi. We are not told whether Charles Phiri and Charles Ogala is the same person. Finally, the applicant initially told the police that he had no relatives living in Zimbabwe. He has since discovered that he has a cousin brother here, Wonder Mpita, of Warren Park. The applicant's failure to give a reasonable explanation for all the discrepancies listed above, or to provide Mr. Quta's particulars, is worrying, and raises a rebuttable inference that he is not being candid with the court.

The discrepancies also make the prosecution case against the applicant strong. The court finds that the applicant tendered an affidavit by Mr. Quta as evidence that he was authorized to drive the vehicle. Now he has tendered an affidavit, sworn to by a Zimbabwean national, to the effect that they are related and he can reside in Warren Park until the trial is finalized. The veracity of Mr. Quta's affidavit is doubtful in light of the applicant's failure to provide his particulars. The discrepancy in the name of the person who hired the applicant to drive the vehicle shows clearly that the applicant is not being candid with the court. How then can the court formulate the view that he indeed intends to reside in Warren Park until the trial is finalized in light of all these discrepancies? The court finds that the applicant is likely to abscond and not stand trial. The State's case against him is strong, the likely penalty is severe, which will likely induce him to abscond, which is why he has not been candid with the court in regard to a myriad of issues. It has been held that the more serious the charge the greater will be the temptation to abscond regard being had to the likely penalty upon conviction. Coupled with the strength of the State case, and on examination of all the circumstances of the case, the court finds that the applicant is likely to abscond if admitted to bail. In S v Hudson 1980 (4) SA 145…, the court stated that:

“(i) Whether the accused is familiar with any witness or the evidence.

(ii) Whether any witness has made a statement.

(iii) Whether the investigation is completed.

(iv) The accused's relationship with any witness and the extent to which the witness may be influenced by the accused.

(v) The efficacy of the amount or nature of the bail and enforceability of any bail conditions.

(vi) The ease with which any evidence can be concealed or destroyed.

(vii) Any other factor which, in the opinion of the court, should be taken into account.”

It is this court's view that the State's fears that the applicant will attempt to interfere with witnesses is baseless and without foundation. The witnesses are police officers who are not known to the applicant, who is a foreigner to this country. All witness statements have been recorded, a trial date has been set, which means that investigations are complete. There is no evidence that the applicant has a relationship with any of the witnesses. There is no real risk that the applicant will interfere with witnesses. See S v Bennett 1976 (3) SA 652 (C). The imposition of bail conditions in this case is not likely to deter the applicant from absconding for reasons which the court has already canvassed above.

“(a) The period for which the accused has already been in custody since his or her arrest.

(b) The probable period of detention until the disposal or conclusion of the trial if the accused is not released on bail.

(c) The reason for any delay in the disposal or conclusion of the trial and any fault on the part of the accused with regard to such delay.

(d) Any impediment in the preparation of the accused's defence or any delay in obtaining legal representation which may be brought about by the detention of the accused.

(e) The state of health of the accused.

(f) Any other factor which, in the opinion of the court, should be taken into account.”

The applicant has been in custody since February 2014. The trial date is 23 April 2014….,. The right of the applicant to his personal freedom does not trump the interests of justice in securing his attendance at trial. The trial date is imminent, so there is no likelihood of prejudice caused by a long wait.

The court finds that the interests of justice would be prejudiced by the admission of the applicant to bail because there is cogent evidence that the applicant has not been candid with the court in various material respects, the prosecution case against him is strong, the penalty severe; the court is not satisfied that the applicant intends to reside at the given address in Warren Park until the finalization of the trial, the court is not satisfied that the applicant has sufficient incentives to stay in Zimbabwe until the finalization of the trial, the court is satisfied that, the imposition of bail conditions would not be a sufficient deterrent to keep the applicant in Zimbabwe, he has no ties to the local community, he has access to regional syndicates whose details he deliberately refrained from disclosing. The applicant failed to discharge the onus on him, to place sufficient evidence before the court, to satisfy the court that, on a balance of probabilities, he will stand his trial if released on bail. This means that he is not a suitable candidate for admission to bail.

The application for bail is dismissed for these reasons.

HH221-14 : PARDON CHIGWADA and BRIAN DARRYKEN and BLESSING MAVHUNGA and DOMINIC MASIKA and KUMBIRAI CHAKEZHA vs THE STATE
Ruled By: CHIGUMBA J

On 1 April 2014, at the initial remand hearing, the fifth appellant was represented by his counsel, Mr. Chagwiza. On 2 April 2014, at the hearing of the application for bail pending trial, Mr. Chagwiza submitted that there were no other witnesses other than the complainant so the State's allegation that the appellants were likely to interfere with witnesses was baseless and without foundation. He submitted that there was no real likelihood of interference with the complainant.

On the likelihood that if admitted to bail further offences would be committed, it was submitted that that, in itself, is not a reason to deny bail, especially in the absence of evidence of propensity to commit similar offences….,.

Counsel for the respondent, in opposing the admission of the appellants to bail, relied on the case of S v Biti 2002 (1) ZLR 115, as authority for the proposition that, in deciding the question of admission to bail pending trial, a court must consider the seriousness of the offence, be guided by the character of the charges, the strength or weakness of the State case, the likely penalty in the event of a conviction, and weigh these factors against the assurances by the accused that they will stand trial. It was submitted that the court should strike a balance between the interests of the accused to personal liberty, the presumption of innocence, section 50 of the Constitution which stipulates that unless there are compelling reasons, the accused is entitled to be released pending trial. It was submitted, on behalf of the respondent, that the interests of justice would not be served by the admission of the appellants to bail because:

(i) The offence is serious.

(ii) The likely penalty severe.

(iii) There is overwhelming evidence.

(iv) The appellants were positively identified by the complainant.

(v) No probable defence was offered except by the fifth appellant.

(vi) All five appellants acted in common purpose, and there is a nexus in regard to all five in the commission of the offence.

Counsel for the respondent referred the court to the case of Attorney General v Phiri 1987 (2) ZLR 33 and relied on it as authority for the proposition that:

"The fundamental principle governing the court's approach to the granting of bail is that of upholding the interests of justice. This requires the court, 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. The mere possibility of the accused committing further crimes, standing alone, would not be sufficient to outweigh the accuser's right not to be deprived of his freedom.”

HB192-11 : LINCOLYN TENDAI MUBAKI vs THE STATE
Ruled By: MATHONSI J

I am of the view that the case against the applicant is very strong and the applicant faces serious charges. This application then turns on the risk of abscondment. In S v Jongwe 2002 (2) ZLR 209 (S)…, the Supreme Court stated as follows on judging the risk of abscondment; “…, in judging the ...

HH567-14 : THE STATE vs CLEMENCE MUVAMBWI
Ruled By: BHUNU J

While it is undesirable to turn bail proceedings into a trial of the applicant, as determined in the case of S v Dhlamini and Ors HH57-09, where appropriate, it is necessary to ventilate the credibility of the evidence one way or the other in a bid to assess the strength or otherwise of the ...

View Appeal SC20-17 : THE ATTORNEY-GENERAL vs PAUL SIWELA
Ruled By: CHIDYAUSIKU CJ

The first question that falls for determination is whether the court a quo misdirected itself in concluding that the appellant had failed to establish that the respondent had a propensity to commit similar offences and was therefore likely to commit similar offences if granted bail.The following cases have considered the issue of when ...

The following cases have considered the issue of when bail should be denied on the ground that the accused is likely to commit similar offences whilst on bail.

In R v Phillips 1947 32 CR App R 47, a twenty-three year old accused had a bad record. In addition, it was accepted that he had previously committed nine similar offences whilst on bail. The applicant was granted bail pending an appeal by the court a quo. The appeal court was of the view that the accused should have been denied bail.

I respectfully agree with the conclusion of the Appeal Court.

Nine previous commissions of similar offences while on bail is overwhelming evidence that an accused is likely to commit similar offences while on bail - if bail is granted. The commission of nine similar offences while on bail, coupled with a bad record of previous convictions, clearly shows that an accused has no respect for the rule of law and the administration of justice. Such an accused should not be admitted to bail pending trial.

In S v Fourie 1973 (1) SA 122 (D), it was held that an accused should not be denied bail merely because it appears that he may commit a crime if released from custody. It was held that one previous conviction and an unsubstantiated suspicion against the accused are insufficient evidence that an accused was likely to commit further crimes if released on bail. It was held, further, that an accused's past record and his conduct whilst out on bail on another case are relevant considerations for the granting or refusal to grant bail.

In Attorney-General v Phiri 1987 (2) ZLR 33 (H), the accused was placed on remand on allegations of committing twenty-two crimes involving dishonesty. Whilst on trial, he was arrested for committing more crimes involving dishonesty. The accused was refused bail on the basis that he was likely to commit similar offences whilst on bail. The evidence before the court was that the accused had already committed further offences whilst on bail. It was held that the mere possibility of the accused committing further crimes, standing alone, would not be sufficient to outweigh the accused's right not to be deprived of his freedom. However, when added to a bad criminal record are added allegations, on credible evidence, that the accused committed similar crimes whilst on bail, the matter becomes highly persuasive and cogent and bail should be denied. The reasoning was that a person who commits crimes whilst on bail shows a disregard for the rule of law and contempt for the administration of justice.

Once commission of similar crimes has been established, the onus shifts to the accused to satisfy the court that there is no likelihood of repetition whilst on bail.

The test established by this Court in S v Tsvangirai 2003 (1) ZLR 650 is 'whether there is a real danger or a reasonable possibility that the due administration of justice would be prejudiced by bail being granted.' In that case, the applicant was on remand on allegations of treason. He applied for bail. The State opposed the application on the ground that he might commit a similar offence whilst on bail. It was found that, on the evidence led by the State, the State's fears that the applicant might commit similar offences whilst on bail was totally unfounded and bail was granted.

In S v Rudolph 2010 (1) SALR 262 (SC), the appellant attacked his wife with a carpet knife at her place of employment a month after she had been granted a protection order in terms of the Domestic Violence Act. He cut her throat, poured petrol over her, and attempted to set her alight. When he was restrained by her colleagues he tried to cut his own throat. When this happened, the accused was on bail on charges of rape and attempted murder of his former wife. After the incident, the accused suffered two heart attacks and a stroke. The accused was charged with attempted murder of his wife. Section 60(11)(a) of the Criminal Procedure Act, 51 of 1977, placed the onus on the accused to satisfy the court that exceptional circumstances existed which permitted his release in the interests of justice. The accused failed to place evidence before the court to meet the State case that he had attempted to murder his wife with barbarous violence. He had no explanation for his attack on his former wife. The accused was found to have a propensity for violence and his release on bail was prohibited by section 67(4)(a) of the Criminal Procedure Act.

It is clear from this case that the propensity must be for offences of a similar nature and that the onus shifts to the accused once evidence establishing the propensity is placed before the court.

An analysis of the case law set out above will show that the principles that govern admission to bail of an accused who is alleged to have a propensity to commit similar offences whilst on bail may be summarised as follows –

(a) The credibility and substance of the evidence establishing the propensity to commit similar crimes;

(b) The offences must be of a similar nature in their essential elements;

(d) The accused is incorrigible or unrepentant.

Once the State has established the above, the onus shifts to the accused to show that there is no likelihood of the accused committing similar offences and that the interests of justice would not be prejudiced by his admission to bail.

In casu, as part of its case, the State alleges that contravention of section 20(1)(b) of the Criminal Law (Codification and Reform) Act [Chapter 9:23] is similar to contravention of section 19(1)(c) of the Public Order and Security Act [Chapter 11:17] (hereinafter referred to as 'POSA').

I am not persuaded by this submission for the following reason.

Section 20(1)(b) of the Criminal Law (Codification and Reform) Act [Chapter 9:23] reads:

"20 Treason

(1) Any person who is a citizen of or ordinarily resident in Zimbabwe and who –

(a)…,.

(b) Incites, conspires with or assists any other person to do any act, whether inside or outside Zimbabwe, with the intention of overthrowing the Government;

shall be guilty of treason and liable to be sentenced to death or to imprisonment for life."

Section 19(1)(c) of the Public Order and Security Act [Chapter 11:17] reads:

"Gatherings conducing to riot, disorder or intolerance

(1) Any person who, acting together with one or more other persons present with him in any place or at any meeting –

(a) – (b)…,.

(i) With the intention to engender, promote or expose to hatred, contempt or ridicule any group, section or class of persons in Zimbabwe solely on account of the race, tribe, nationality, ethnic origin, natural or ethnic origin, colour, religion or gender of such group or class of persons; or

(ii) Realising that there is a risk or possibility that such behaviour might have an effect referred to in subpara (1);

shall be guilty of an offence and liable to a fine not exceeding level 12 or to imprisonment for a period not exceeding twelve years or to both such fine and imprisonment."

Section 19 of of the Public Order and Security Act [Chapter 11:17] was repealed by the Code and an offence of a similar genre was introduced in section 42 of the Criminal Law (Codification and Reform) Act [Chapter 9:23]. This new offence was not listed as a permissible verdict to treason under the Fourth Schedule of the Criminal Law (Codification and Reform) Act [Chapter 9:23].

I am satisfied that section 19 of the Public Order and Security Act [Chapter 11:17] is substantially and materially different from the offence of treason as defined in section 20 of the Criminal Law (Codification and Reform) Act [Chapter 9:23]. The essential elements of the two offences are different. Under the Public Order and Security Act, the mens rea is to promote hatred, whereas under treason the mens rea is intending to overthrow the Government of Zimbabwe. Under the Public Order and Security Act, the actus reus is to utter any words or display any writing, whereas under treason the actus reus is not defined. As is noted above, the penalties are substantially different – life imprisonment or death in respect of treason and a fine or twelve years' imprisonment in respect of a contravention of section 19 of the Public Order and Security Act [Chapter 11:17].

The State conceded that the respondent was removed from remand in the case before the Regional Court in which he was alleged to have violated the Public Order and Security Act. That case is no longer pending as alleged in the Remand Form. The appellant advised the Court that the State is unlikely to pursue that case, especially since the section of the Public Order and Security Act under which the respondent was charged has since been repealed and that, due to the effluxion of time, it is unlikely that the charges will be resuscitated.

I find, therefore, that the respondent has no pending case.

I now turn to consider the evidence of propensity to commit a similar offence which the State placed before the Court.

I have found that the two offences of treason and contravening section 19 (the repealed section) of the Public Order and Security Act [Chapter 11:17] are not similar. I have also found that the case against the respondent in the Regional Court, Bulawayo is no longer pending, the respondent having been removed from remand. The respondent has sworn on oath that he has no intention of committing similar offences whilst on bail.

I am satisfied that the evidence in this case does not justify the State's fears that the respondent will pursue his agenda of removing the Government through unconstitutional means….,.

The State failed to establish that its fears could not be catered for by appropriate bail conditions.

In the result, I find no misdirection on the part of the court a quo which warrants interference by this Court. The judgment of NDOU J, of 24 March 2011, is unassailable and is hereby upheld….,.

The judgment of NDOU J, of 24 March 2011, is upheld and the respondent is admitted to bail on the same conditions therein.

HB05-16 : LINDANI CAPHU vs THE STATE
Ruled By: MATHONSI J

It is now a Constitutional imperative that an arrested person be released unconditionally or on reasonable conditions pending trial unless there are compelling reasons for his continued detention: see section 50(1)(d) of the Constitution.

HMA06-17 : COLLEN CHIPETU vs STATE
Ruled By: MAFUSIRE J

The law relating to bail is well settled. There is really nothing new to add. The fundamental aspects are re-stated merely as a route to the final decision. Bail is a right. By it, any person arrested on suspicion of having committed a crime secures his liberty and continues to enjoy his freedom. This is ...

The law relating to bail is well settled. There is really nothing new to add. The fundamental aspects are re-stated merely as a route to the final decision.

Bail is a right. By it, any person arrested on suspicion of having committed a crime secures his liberty and continues to enjoy his freedom. This is enshrined in section 50 of the Constitution. Section 70 is a re-statement of the common law. It says an accused person is presumed innocent until proved guilty.

However, the same Constitution empowers the court to deny bail in appropriate circumstances. Thus, in every bail case, the task is to try and strike a balance between the interests of the accused and the interests of justice: see Attorney-General v Phiri 1987 [2] ZLR 33 [HC] and S v Biti 2002 [2] ZLR 115 [H].

Sometimes it is not easy to reach this equilibrium.

On the one hand, until proved guilty, a person arrested for any crime is still entitled to his freedom. On the other hand, that person must be tried. If he is found guilty, it is in the interests of justice that he be punished and rehabilitated. A trial, being the process by which his guilt or innocence is determined, usually takes time to start or finish. This is due to a number of factors. So the accused should not be prejudiced by the delays. If there is an assurance that he will stand trial; he should be freed on bail. If there is no such assurance; he must stay inside.

Guidelines have been formulated by both case law and legislation to try and help the courts reach this state of equilibrium in any given case. Each case depends on its own set of facts. Some guidelines assume greater importance in some cases than do others in other cases. The legislature, in section 117(2) of the Criminal Procedure and Evidence Act…, has laid down a number of such guidelines. The consideration whether or not the accused will stand his trial is elaborated on in section 117(3). In considering whether, if released on bail, there is a likelihood that an accused will not stand trial, the court is directed to take a number of factors into account. They include the nature of the offence or the nature and gravity of the likely penalty. They also include the strength of the case for the prosecution and the corresponding incentive on the accused to flee.

The legislature did not pretend to have listed all the possible guidelines that may be relevant in any given case. It was left to the courts to develop them further. The court is enjoined to take into account any other factor which, in its opinion, it considers should be taken into account. Taking a cue from this, the courts have said no single factor is considered in isolation. For example, the nature of the offence, the strength of the State case and the gravity of the likely penalty, are all very important but none of them is decisive or conclusive by itself: see Fletcher Dulini Ncube v State SC126-01.

In this case, I have considered that the State case is very strong. I am mindful that this bail application is not the process by which the applicant's guilt or innocence is being determined. But there is no denial that the evidence gathered by the police, so far, is very strong. According to the State, the complainant was deceived by a thief who stole his motor vehicle. The thief unwittingly left a cellphone that provided a valuable lead back to him. The stolen vehicle was recovered in his possession. His explanation for his possession, namely, that he had bought it from someone else, was investigated. It was a wild goose chase. I am conscious that these allegations by the State are not yet proof of any sort. Among other things, witnesses like Freeman Manyika are still to testify and be cross-examined. The applicant himself is yet to testify. But these facts are an important consideration. I have considered another factor which is of relative importance in this matter. In S v Nyengera HB07-15, MAKONESE J said…,;

“While an application for bail is not a trial on the merits of the case itself, an Applicant must, and should, take the court into [his] confidence by at least raising some plausible defence on the charge.”

I agree with that approach.

Where the State has laid out a robust case against an accused person, the heads naturally turn to him for a response. The ball is now in his court. So, if the accused's reply is incoherent or is implausible or is just a bare denial, the court is excused if it concludes that the State case is strong. That has been the position in this case.

But, there is more….,.

The applicant was an ex-policeman. The State case was that he was abusing his former status and the paraphernalia that he had not surrendered on discharge. The applicant said he had surrendered it. But Detective Constable Zachariah Chikwena said part of it had been recovered on him. He had sold the other part to someone whom he named. This had also been eventually recovered from that individual. The major point is, if convicted, the applicant is unlikely to escape a jail term. He is likely to go in for a long stretch. For theft, section 113 of the Criminal Law [Codification and Reform] Act [Chapter 9:23], prescribes a penalty of a fine not exceeding level fourteen [$5,000=], the highest level, or imprisonment for a period not exceeding twenty-five years, or both. Plainly, the Legislature was trying to say theft is a very serious offence. This is a relevant consideration. A lengthy custodial sentence is generally viewed as an inducement to abscond.

The applicant came across as one who was a very itinerant person. Places traversed in this offence alone included Mupandawana–Gutu, Harare, and Ngundu. These are places some of which have great distances between them. In addition, it was common cause that the applicant had been to South Africa. He downplayed the visit to a single, once-off travel. The State portrayed it as some considerable stay. Whatever the case, it had been his right to travel. However, the point about this was that the applicant was not an unsophisticated hermit. Detective Constable Zachariah Chikwena said at one time the applicant had claimed he could easily procure travel documents without being present in person. As a matter of fact, the applicant did have a passport. Detective Constable Zachariah Chikwena said they had failed to recover it. The applicant said he was willing to surrender it as part of the bail conditions if his application was granted. At p 40 in Attorney-General v Phiri 1987 [2] ZLR 33 [HC], the learned judge said:

“In the absence of exceptional circumstances, I believe that it would be irresponsible and mischievous for a judicial officer to allow bail to a person who has given every indication that he is an incorrigible and unrepentant criminal.”

Admittedly, cases such as Attorney-General v Phiri 1987 [2] ZLR 33 [HC], S v Biti 2002 [2] ZLR 115 [H] and Fletcher Dulini Ncube v State SC126-01, and several others on the point, were decided before the advent of the Constitution in 2013. So they should be treated with caution.

Section 50(1)(d) of the Constitution says that any person who is arrested must be released unconditionally or on reasonable conditions, pending a charge or trial, unless there are compelling reasons justifying their continued detention.

In my recent judgments in S v Nemaringa & Anor HMA03-16 and Shava v S HMA08-16, I demonstrated that the Constitution purposefully made bail a right of an accused person the breach of which carries adverse consequences on all concerned, including judicial officers, unless there is a law protecting them in the bona fide discharge of their duties.

The new section 115C of the Criminal Procedure and Evidence Act (it came into operation from 17 June 2016) purports to thrust on the accused the onus to prove compelling reasons for admission to bail in respect of certain offences. But in those two cases, I held that this is manifestly in conflict with the Constitution and that the onus remained on the State.

In this case, I am satisfied that the State has discharged the onerous burden on it to show that compelling reasons exist to deny the applicant bail. Apart from the seriousness of the offence and the strength of the case against the applicant, the improbability of the accused's explanation and the several other factors against him that I have explored above, are such that it would be “…, irresponsible and mischievous…,” to release the accused on bail.

In the premises, the application for bail pending trial is hereby dismissed.

HMA03-16 : THE STATE vs JEALOUS NEMARINGA and PATRICK MARUFU
Ruled By: MAFUSIRE J

In terms of section 117(2) of the Criminal Procedure and Evidence Act, grounds upon which a court may deny bail are the likelihood that if released on bail: 1. The accused will endanger the safety of the public, or of any particular person; or 2. The accused will commit an offence referred to in the First ...

HMA08-16 : TAVONGA SHAVA vs THE STATE
Ruled By: MAFUSIRE J

In my view, there are no compelling circumstances to deny the applicant bail pending trial. Ultimately, the risk of absconding is an ever present concern whenever a person has been arrested for an offence. The likelihood of that actually happening is generally greater where the offence in question is a serious one and the ...

In my view, there are no compelling circumstances to deny the applicant bail pending trial.

Ultimately, the risk of absconding is an ever present concern whenever a person has been arrested for an offence. The likelihood of that actually happening is generally greater where the offence in question is a serious one and the penalty likely to be severe. But this does not constitute compelling circumstances.

That the victim of the alleged offence is a vulnerable witness and/or that the accused is a family member are also relevant factors. But, again, these do not constitute compelling circumstances.

There is no question, especially from the review records from the Magistrate's Courts that the rape of minor girl children by male members of the family is disturbingly far too high, probably calling for extra judicial interventions. But, paradoxically, that makes such cases no more exceptional for purposes of bail applications than other equally serious offences where bail is granted. A bail enquiry is not of a penal nature.

At nineteen years old, the applicant is still relatively young. He is unemployed and is therefore dependent on others for maintenance and support. He has no personal identity document of any kind, let alone a passport. That does not mean he will not run away if released on bail. But having considered all the other surrounding circumstances it is felt that the risk of flight is minimal. The bail will be coupled with stringent conditions.

There has been no supporting statement from the applicant's relatives whom he said live in another village fifty kilometres away and who are allegedly prepared to take him in until his trial. The applicant must file a sworn statement or statements by those relatives affirming their alleged commitment to take him in. Thereupon he will be released into their custody.

In the circumstances, subject to this judgment, the applicant is hereby granted bail pending his trial and shall be released upon the following terms and conditions:

1. The applicant shall deposit with the Clerk of Court, Mwenezi, bail in the sum of fifty dollars ($50=);

2. Upon such payment and the fulfilment of all the other pre-release conditions, the applicant shall be released into the custody of his uncle and aunt at Mubaiwa Village, Chief Chitanga, Mwenezi, where he shall continue to reside until the commencement of his trial;

3. The applicant shall report to the Zimbabwe Republic Police, Mwenezi once every Friday between the hours of 06:00 hours and 18:00 hours;

4. The applicant shall not interfere with any State witnesses.

HB13-16 : TENDAI NKOMO vs THE STATE
Ruled By: MAKONESE J

In considering the application for bail, I am mindful of the provisions of section 117(1) of the Criminal Procedure and Evidence Act [Chapter 9:07] which provide that any person who is in custody in respect of an offence shall be entitled to release on bail unless the court finds that it is in the ...

The court's approach to the question of bail is one of striking a balance between the interests of society, that the applicant should stand trial and that there should be no interference with the proper administration of justice, and the liberty of the applicant, who, pending the outcome of his trial, is presumed innocent.

The onus is on the State to proffer cogent reasons supported by information justifying why the applicant should not be released on bail. See the case of S v Hussey 1991 (2) ZLR 187 (S).

In his affidavit opposing the gravity of bail, the Investigating Officer…, had this to say:

“I am a duly attested member of the Zimbabwe Republic Police stationed at ZRP Hwange. On the 11th day of September 2015, I was assigned to investigate a case of murder in which Tendai Nkomo stabbed Sithembile Luphahla several times with a kitchen knife. I took the accused for indications and did the necessary documentation and later sent him to court for initial remand. Accused was remanded in custody. The accused is still in custody and I wish to oppose bail on the following grounds:

1. When Tendai Nkomo was arrested he made threats to the witnesses who effected citizen arrest that once released he is going to kill them.

2. Accused is a local person and the community where he lives in baying for his blood and his safety once of the custody will be in danger.

3. Accused is likely to interfere with witnesses once released out of custody.

4. The probability of the accused running away is high due to the gravity of the offence.”

It is my view that that the seriousness of the offence, on its own, is not sufficient ground for denying the applicant bail. In this case, however, the applicant threated the witnesses with death upon his release from custody. The case against him is very strong. It is my considered view that the granting of bail is likely to prejudice the administration of justice. In the case of State v Jongwe SC62-02, the learned Chief Justice, CHIDYAUSIKU CJ, stated as follows, at page 5 of the cyclostyled judgment:

“In this case, the evidence against the appellant is very cogent, if not overwhelming. The appellant admits inflicting the wounds found on the deceased. The post mortem report clearly establishes the nature and the multiplicity of stab wounds that he inflicted. The post-mortem report clearly establishes that this was a savage and brutal attack on the deceased…,.”

The court held that the risk of abscondment was high due to the strength of the case against the applicant.

In casu, the knife which the applicant used was found stuck in the back of the deceased's body. The applicant stabbed the deceased three times before fleeing the scene of the crime. He was apprehended by members of the public. The likelihood of a lengthy prison term being imposed against the applicant is high. The possibility of the applicant absconding to avoid trial is therefore quite high.

For these reasons, the application for bail pending trial is dismissed.

HB32-16 : OBED NCUBE vs THE STATE
Ruled By: MAKONESE J

The applicant was arrested on 19th October 2015 on a charge of murder in contravention of section 47 of the Criminal Law (Codification and Reform) Act [Chapter 9:23], it being alleged that on 18th October 2015, at Bemba Primary School, Tsholotsho, the applicant, who is employed as a school teacher, assaulted and hit the ...

The applicant was arrested on 19^th October 2015 on a charge of murder in contravention of section 47 of the Criminal Law (Codification and Reform) Act [Chapter 9:23], it being alleged that on 18^th October 2015, at Bemba Primary School, Tsholotsho, the applicant, who is employed as a school teacher, assaulted and hit the deceased several times with an axe handle and sjambok on suspicion of infidelity.

The deceased was the accused's girlfriend at the material time. The deceased died on the spot as a result of injuries sustained in the assault.

In terms of section 117(1) of the Criminal Procedure and Evidence Act [Chapter 9:07], bail is granted at the discretion of the court where it is satisfied that the release of the applicant will not jeopardize or prejudice of the interests of justice.

It is trite that an accused person is presumed innocent until proven guilty.

The applicant denies the allegations of murder. He admits that he assaulted her with fists and open hands all over the body. He claims, in his bail statement, that he only became aware of the death of the deceased the following day when he was alerted by a fellow teacher.

Bail is opposed by the State, and an affidavit of Patrick Mbengo, the investigating officer, sets out the basis upon which bail is being opposed. The affidavit is in the following terms:

“1. I am a duly attested member of the Zimbabwe Republic Police currently stationed at ZRP, Tsholotsho doing investigation duties.

2. I am the investigating officer in a case of murder which occurred at Bemba Primary School, Tsholotsho on the 18^th October 2015 in which Obed Ncube assaulted Sarudzai Mutuma to death.

3. Allegations are that accused assaulted the now deceased with open hands several times on the face, with a sjambok, and axe handle, after accusing the now deceased of having an affair with an unknown boyfriend.

4. I wish to oppose bail, being that:-

(a) The accused person may interfere with State witnesses. The accused works at the same school with witnesses and investigations are still underway.

(b) He is likely to abscond given that he escaped from the scene after committing the offence.

In S v Makamba SC30-04, the court stated that the primary considerations in a bail application are:-

(i) Whether the applicant will stand trial in due course (likelihood to abscond).

(ii) Whether the applicant will interfere with investigations of the case against him or tamper with prosecution witnesses (likelihood to interfere with witnesses).

(iii) Whether the applicant will commit other offences while on bail (propensity to commit further offences).

(iv) Other considerations which the court may consider good and sufficient.

With regards the first ground (the likelihood to abscond), it has been recognized in our law that it is a fundamental requirement for the proper administration of justice that an accused person should stand trial. If there is an indication that the accused will not stand trial if released on bail, the court will secure the needs of justice by refusing to grant bail.

See the case of S v Fourie 1973 (1) SA….,.

It is not disputed that upon committing the offence, the accused fled the scene.

The investigating officer explained, in a supplementary affidavit, that when he attended the crime scene the accused could not be located. The accused was called on his mobile and indicated to the investigating officer that he was in the vicinity of the school premises and was coming to hand himself over. The accused did not turn up as promised and was arrested later in the day by villagers, who included members of the Neighbourhood Watch Committee - some 15 to 20 kilometres from the school.

It is my view that the conduct of the accused indicates that he was absconding from the scene. It were the villagers who apprehended the accused and handed him over to the police. There exists therefore a strong possibility that the accused, if granted bail pending trial, is likely to abscond to avoid standing trial. The applicant had the tenacity to mislead the police by informing them that he was going to surrender himself and yet, in reality, he was attempting to flee.

In the Form 242 (Request for Remand Form), the applicant gave his address as House Number 16065, Nkulumane, Bulawayo. In his bail statement he states that “…, he ordinarily resides at House Number 1611, New Magwegwe and only went there to visit as the property was owned by a cousin. With regards the Nkulumane address, the investigating officer was told by the owner, one Florence Sithole that the applicant used to reside there but moved out in 2013, purportedly to Pumula suburb.

It stands to reason that the applicant has not been candid with the court.

He is facing a serious offence and his conduct soon after the commission of the offence clearly shows that he is a flight risk. It is my conclusion that the applicant is not a suitable candidate for bail pending trial.

It is for the above reasons that the application for bail pending trial was dismissed.

HB55-16 : FELODY MUNSAKA vs THE STATE
Ruled By: MATHONSI J

The opposition to this bail application graphical demonstrates how officers prosecuting on behalf of the Prosecutor-General, either by design or lack of understanding, have remained rooted in the past without embracing the new Constitutional order when it comes to the issue of bail. It also shows why, what has been roundly referred to ...

It also shows why, what has been roundly referred to as the re-alignment of laws to the new Constitution, should be prioritized in the interest of the smooth administration of justice and good order.

This applicant for bail was arrested on 20 January 2016 by Nyamandlovu police who preferred charges of rape against him….,.

The allegations against him, as appear on the Request for Remand Form 242, are that:

“On 20 January 2016, at Stand 13 Goliths Village, Nyamandlovu, the accused had sexual intercourse with the complainant, twice, without her consent and threatened to assault her if she tells anyone. The accused got into the complainant's bedroom hut whilst she was asleep, closed her mouth, and pinned her down, and…, had sexual intercourse with her twice.”

Upon his initial appearance on these allegations, the applicant was remanded in custody. He has approached this court seeking his admission to bail pending trial. He states that he is a mere suspect who is presumed innocent until proven guilty. Whatever evidence has been lined up against him, it is yet to be tested at the trial. He is therefore entitled to his liberty especially as he is of fixed abode, has no travel documents, has a good defence to the charges, and, as such, he is not a flight risk.

The application is opposed by the State on essentially three grounds, namely, that the applicant is likely to abscond; he is likely to endanger the safety of members of the public; and is likely to interfere with witnesses.

In formulating his opposition, counsel for the State relied on the provisions of section 117(2) and (3) of the Criminal Procedure and Evidence Act [Chapter 9:07].

Therein lies the problem because those provisions cannot be said to be still part of our law. They have been relegated to the annuls of history.

Section 117 provides:

“(1) Subject to this section and section 32, a person who is in custody in respect of an offence shall be entitled to be released on bail at any time after he or she has appeared in court on a charge and before sentence is imposed, unless the court finds that it is in the interests of justice that he or she should be detained in custody.

2. The refusal to grant bail and the detention of an accused person in custody shall be in the interests of justice where one or more of the following grounds are established:

(a) Where there is a likelihood that the accused, if he or she were released on bail will –

(i) Endanger the safety of the public or any particular person or will commit an offence referred to in the First Schedule; or

(ii) Not stand his or her trial or appear to receive sentence; or

(iii) Attempt to influence or intimidate witnesses or to conceal or destroy evidence; or

(iv) Undermine or jeopardise the objectives or proper functioning of the criminal justice system, including the bail system; or

(b) Where, in exceptional circumstances, there is the likelihood that the release of the accused will disturb the public order or undermine public peace or security.”

Subsection (3) of section 117 of the Criminal Procedure and Evidence Act [Chapter 9:07] deals with factors to be taken into account by the court when considering whether the grounds set out in subsection (2) exist.

It is apparent from a reading of the foregoing provisions that the onus was on the applicant for bail to satisfy the court that he or she is a good candidate for bail. He had to show that the interests of justice would not be prejudiced by his release on bail. In terms of section 117A(1) of the Criminal Procedure and Evidence Act [Chapter 9:07], an accused person who is in custody could apply for bail at anytime to a judge or magistrate, whether verbally or in writing. In such bail application, he or she would be compelled to inform the court of any previous convictions any pending charges against him and whether he had been released on bail in respect of those charges.

The lawgiver has now made the admission of arrested persons to bail a Constitutional right. This is by virtue of section 50(1)(d) of the Constitution of Zimbabwe which reads:

“Any person who is arrested must be released unconditionally or on reasonable conditions pending a charge or trial unless there are compelling reasons justifying their continued detention.”…,.

It follows, therefore, that by Constitutional enactment, an arrested person is entitled, as of right, to be released, either unconditionally or on reasonable conditions, pending a charge or trial. It is only where it is shown that there are compelling reasons justifying that person's continued detention that an arrested person can be denied bail. A Constitutional provision can never be more clearer.

All that an arrested person is required to do is to apply for bail.

The onus of showing the existence of compelling reasons for continued detention cannot possibly be his because he desires his release on bail. Therefore, section 50(1)(d) of the Constitution has shifted the onus of proof to the State to establish the existence of compelling reasons why the arrested person should remain in detention….,.

It means that where bail is being opposed without reference to compelling reasons for an arrested person's continued detention there is no basis for opposition. The respondent appears caught in a time warp where it continues, with nolstagia, to cling onto the grounds for denial of bail contained in a provision that has long been rendered ineffectual.

As pointed out in S v Khumalo HB243-15, the State cannot deny a person a fundamental right to admission to bail without satisfying the requirement for denial of bail as set out by the Constitution. It is time that the State seriously applied its mind before venturing to oppose bail because to say that the applicant for bail will abscond, will endanger the public, and will interfere with witnesses remain un-substantiated allegations which do not meet the threshold of compelling reasons set by the Constitution.

For instance, nothing has been placed before me pointing to any possibility of abscondment or interference.

The applicant resides in Binga. He allegedly raped a person in Nyamandlovu and there is nothing to suggest that he will interfere with any witness. I am therefore satisfied that the applicant is entitled to his release on bail.

Accordingly, it is ordered, that;

1. The applicant is hereby admitted to bail on the following conditions; that

(a) He deposits a sum of $100= to the Registrar of the High Court, Bulawayo.

(b) He resides at Mayanda Village, Binga.

(c) He reports once a week, on Fridays, at Tinde Police Station between the hours of 0600 and 1800 until the matter is finalized.

(d) He does not interfere with State witnesses.

HH122-15 : JONATHAN MUALA vs THE STATE
Ruled By: MAWADZE J

This is an application for bail pending trial….,. In dealing with an applicant for bail pending trial, the court should always strive to strike balance between the liberty of the accused person and the interests of justice. In terms of section 50(1)(a) of our Constitution any person who is arrested must be released unconditionally or on reasonable ...

HH133-15 : TATENDA MAREMBO vs THE STATE
Ruled By: TAGU J

The principles which are followed in an application for bail pending trial are set out in section 117 of the Criminal Procedure and Evidence Act [Chapter 9:07]. The same principles were summarized in a number of cases. See Makamba v The State SC30-04; Aitken and Anor v Attorney General 1992 (1) ZLR 249. In the case of Makamba v The State SC30-04, the ...

HH133-15 : TATENDA MAREMBO vs THE STATE
Ruled By: TAGU J

I agree with the respondent's submissions that the applicant's degree of involvement is a fodder for the trial court.

HMA20-18 : DUMISANI MOYO vs THE STATE
Ruled By: MAFUSIRE J

Our new constitutional dispensation stresses the presumption of innocence of an accused person until proved guilty by a trial process: section 70. The right to bail, in the absence of compelling reasons to deny it, has been entrenched as one of the fundamental human rights and freedoms: section 50….,. It is a bail principle that the seriousness ...

SC71-19 : PRISCAH MUPFUMIRA vs THE STATE
Ruled By: GOWORA JA

The relevant provisions of section 32 of the Criminal Procedure and Evidence Act [Chapter 9:07] read as follows: “(3b) Where the person arrested without warrant is charged with any offence referred to in the Ninth Schedule and there is produced to the judge or magistrate before whom the person is brought in terms of this section — (a) A certificate ...

The relevant provisions of section 32 of the Criminal Procedure and Evidence Act [Chapter 9:07] read as follows:

“(3b) Where the person arrested without warrant is charged with any offence referred to in the Ninth Schedule and there is produced to the judge or magistrate before whom the person is brought in terms of this section —

(a) A certificate issued by or on behalf of the Prosecutor-General stating that, in the Prosecutor General's opinion;

(i) The offence in question involves significant prejudice or significant potential prejudice to the economy or other national interest of Zimbabwe; and

(ii) The further detention of the person arrested, for a period of up to twenty-one days, is necessary for any one or more of the following reasons -

A. The complexity of the case; or

B. The difficulty of obtaining evidence relating to the offence in question; or

C. The likelihood that the person arrested will conceal or destroy the evidence relating to the offence in question or interfere with the investigation of the offence or both; and

(b) The following, where the arrest is made in the circumstances referred to in paragraph (b) of subsection (1) of section twenty-five —

(i) Proof that the arresting officer was an officer of or above the rank of assistant inspector at the time of the arrest, or that the arresting officer made the arrest with the prior leave of such an officer; and

(ii) Where the alleged offence was disclosed through an anonymous complaint, a copy of the complaint as recorded in accordance with subparagraph (ii) of the proviso to paragraph (b) of subsection (1) of section twenty-five; the judge or the magistrate shall, if satisfied that there is a reasonable suspicion that the person committed the offence, order that person's detention or issue a warrant for his or her further detention for a period of twenty-one days or the lesser period specified in the certificate.

(3c) A person referred to in subsection (3a) or (3b) shall, unless the charge or charges against him or her are earlier withdrawn, remain in detention for twenty-one days or the lesser period specified in a certificate mentioned in subsection (3b), as the case may be, from the date when an order or warrant for the person's further detention was issued in terms of the relevant subsection, and no court shall admit such person to bail during that period. Provided that the arresting officer or other officer in authority over him or her shall, at intervals of not more than forty-eight hours beginning on the date when the order or warrant for the person's further detention is issued, make a report to the Prosecutor-General on the progress of the investigations into the charge or charges against the person in detention, and if the Prosecutor-General is satisfied, on the basis of any such report, that the person's detention is no longer justified, the Prosecutor-General may order the immediate and unconditional release of the detained person.”…,.

Section 50(1) of the Constitution. It states as follows:

“50 Rights of arrested and detained persons

(1) Any person who is arrested —

(a) Must be informed, at the time of arrest, of the reason for the arrest;

(b) Must be permitted, without delay —

(i) At the expense of the State, to contact their spouse or partner, or a relative or legal practitioner, or anyone else of their choice; and

(ii) At their own expense, to consult, in private, with a legal practitioner and a medical practitioner of their choice; and must be informed of this right promptly;

(d) Must be released unconditionally or on reasonable conditions, pending a charge or trial, unless there are compelling reasons justifying their continued detention; and

(e) Must be permitted to challenge the lawfulness of the arrest in person before a court and must be released promptly if the arrest is unlawful.”…,.

It must be noted that the right to liberty is not an absolute right, therefore, where there are “compelling” circumstances the Courts are at liberty to detain the accused person.

A closer look at section 32(3a) and (3b) of the Criminal Procedure and Evidence Act [Chapter 9:07] would show that the Prosecutor General does not issue such a certificate in every situation but where the situation is one that satisfies the requirements under section 32(3b). This is what would constitute “compelling” circumstances as stated under section 50(1)(d) of the Constitution….,.

In point of fact, a reading of section 117 of the Criminal Procedure and Evidence Act, which provides for the entitlement to bail, puts paid to the assumption by the court a quo that the provisions in the Criminal Procedure and Evidence Act, regarding bail, are unconstitutional. Section 117 provides in relevant part:

“117 Entitlement to bail

(2) The refusal to grant bail and the detention of an accused in custody shall be in the interests of justice where one or more of the following grounds are established —

(a) Where there is a likelihood that the accused, if he or she were released on bail, will —

(i) Endanger the safety of the public or any particular person or will commit an offence referred to in the First Schedule; or

(ii) Not stand his or her trial or appear to receive sentence; or

(iii) Attempt to influence or intimidate witnesses or to conceal or destroy evidence; or

(iv) Undermine or jeopardise the objectives or proper functioning of the criminal justice system, including the bail system; or

(b) Where, in exceptional circumstances, there is the likelihood that the release of the accused will disturb the public order or undermine public peace or security.

(3) In considering whether the ground referred to in —

(a) Subsection (2)(a)(i) has been established, the court shall, where applicable, take into account the following factors, namely —

(i) The degree of violence towards others implicit in the charge against the accused;

(ii) Any threat of violence which the accused may have made to any person;

(iii) The resentment the accused is alleged to harbour against any person;

(iv) Any disposition of the accused to commit offences referred to in the First Schedule, as evident from his or her past conduct;

(v) Any evidence that the accused previously committed an offence referred to in the First Schedule while released on bail;

(vi) Any other factor which, in the opinion of the court, should be taken into account;

(b) Subsection (2)(a)(ii) has been established, the court shall take into account —

(i) The ties of the accused to the place of trial;

(ii) The existence and location of assets held by the accused;

(iii) The accused's means of travel and his or her possession of or access to travel documents;

(iv) The nature and gravity of the offence or the nature and gravity of the likely penalty therefor;

(v) The strength of the case for the prosecution and the corresponding incentive of the accused to flee;

(vi) The efficacy of the amount or nature of the bail and enforceability of any bail conditions;

(vii) Any other factor which, in the opinion of the court, should be taken into account;

(i) Whether the accused is familiar with any witness or the evidence;

(ii) Whether any witness has made a statement;

(iii) Whether the investigation is completed;

(iv) The accused's relationship with any witness and the extent to which the witness may be influenced by the accused;

(v) The efficacy of the amount or nature of the bail and enforceability of any bail conditions;

(vi) The ease with which any evidence can be concealed or destroyed;

(vii) Any other factor which, in the opinion of the court, should be taken into account;

(d) Subsection (2)(a)(iv) has been established, the court shall take into account —

(i) Whether the accused supplied false information at arrest or during bail proceedings;

(ii) Whether the accused is in custody on another charge or is released on licence in terms of the Prisons Act [Chapter 7:11];

(iii) Any previous failure by the accused to comply with bail conditions;

(iv) Any other factor which, in the opinion of the court, should be taken into account;

(e) Subsection (2)(b) has been established, the court shall, where applicable, take into account the following factors, namely —

(i) Whether the nature of the offence and the circumstances under which the offence was committed is likely to induce a sense of shock or outrage in the community where the offence was committed;

(ii) Whether the shock or outrage of the community where the offence was committed might lead to public disorder if the accused is released;

(iii) Whether the safety of the accused might be jeopardised by his or her release;

(iv) Whether the sense of peace and security among members of the public will be undermined or jeopardised by the release of the accused;

(v) Whether the release of the accused will undermine or jeopardise the public confidence in the criminal justice system;

(vi) Any other factor which, in the opinion of the court, should be taken into account.

(4) In considering any question in subsection (2) the court shall decide the matter by weighing the interests of justice against the right of the accused to his or her personal freedom, and, in particular, the prejudice he or she is likely to suffer if he or she were to be detained in custody, taking into account, where applicable, the following factors, namely —

(a) The period for which the accused has already been in custody since his or her arrest;

(b) The probable period of detention until the disposal or conclusion of the trial if the accused is not released on bail;

(c) The reason for any delay in the disposal or conclusion of the trial and any fault on the part of the accused with regard to such delay;

(d) Any impediment in the preparation of the accused's defence or any delay in obtaining legal representation which may be brought about by the detention of the accused;

(e) The state of health of the accused;

(f) Any other factor which, in the opinion of the court, should be taken into account.

(5) Notwithstanding the fact that the prosecution does not oppose the granting of bail, the court has the duty to weigh up the personal interests of the accused against the interests of justice as contemplated in subsection (4).

(6) Notwithstanding any provision of this Act, where an accused is charged with an offence referred to in —

(a) Part I of the Third Schedule, the judge or (subject to proviso (iii) to section 116) the magistrate hearing the matter shall order that the accused be detained in custody until he or she is dealt with in accordance with the law, unless the accused, having been given a reasonable opportunity to do so, adduces evidence which satisfies the judge or magistrate that exceptional circumstances exist, which, in the interests of justice, permit his or her release;

(b) Part II of the Third Schedule, the judge or (subject to proviso (iii) to section 116) the magistrate hearing the matter shall order that the accused be detained in custody until he or she is dealt with in accordance with the law, unless the accused, having been given a reasonable opportunity to do so, adduces evidence which satisfies the judge or magistrate that the interests of justice permit his or her release.

(7) Where a person has applied for bail in respect of an offence referred to in the Third Schedule —

(a) The Prosecutor-General; or

(b) The Minister responsible for the administration of the Public Order and Security Act [Chapter 11:17], in respect of offence referred to in paragraph 6 of Part I of the Third Schedule, may issue a certificate stating that it is intended to charge the person with the offence.

(8) If the Minister responsible for the administration of the Extradition Act [Chapter 9:08] certifies, in writing, that a person who has applied for bail has been extradited to Zimbabwe from a foreign country and that the Minister has given an undertaking to the Government or other responsible authority of that country —

(a) That the accused person will not be admitted to bail while he or she is in Zimbabwe, the judge or magistrate hearing the matter shall not admit the accused person to bail;

(b) That the accused person will not be admitted to bail while he or she is in Zimbabwe except on certain conditions which the Minister shall specify in his or her certificate, the judge or magistrate hearing the matter shall not admit the accused person to bail except on those conditions: Provided that the judge or magistrate may fix further conditions not inconsistent with the conditions specified by the Minister on the grant of bail to the accused person.

(9) A document purporting to be a certificate issued by a Minister or the Prosecutor-General in terms of subsection (7) or (8) shall be admissible in any proceedings on its production by any person as prima facie evidence of its contents.”

As the question of the invalidity of section 32(3b) of the Criminal Procedure and Evidence Act is not an issue for determination in this appeal, I do not intend to dwell on that aspect. I will confine my remarks to the obvious provision of an accused person's entitlement to bail in section 117(1) of the Criminal Procedure and Evidence Act unless there are compelling reasons for his detention in custody.

It is worth noting that the section has made provision for almost every factor that a court should consider in the accused person's favour in order to ensure that detention in custody may be ordered only where compelling reasons for such detention have been established by the State. That this provision accords with section 50(1)(d) of the Constitution is not in dispute.

HH193-15 : WIRIMAI GARURA vs THE STATE
Ruled By: TAGU J

This is an application for bail pending trial. The applicant is facing a charge of robbery as defined under section 126 of the Criminal Law (Codification and Reform) Act [Chapter 9:23]. The applicant appeared at the Magistrates Courts and was denied bail and was referred to this Honourable Court since the robbery which the applicant is facing involved the ...

This is an application for bail pending trial.

The applicant is facing a charge of robbery as defined under section 126 of the Criminal Law (Codification and Reform) Act [Chapter 9:23].

The applicant appeared at the Magistrates Courts and was denied bail and was referred to this Honourable Court since the robbery which the applicant is facing involved the use of a firearm and hence falls under the Third Schedule Offences Part 1 paragraph 3(a) of the Criminal Procedure and Evidence Act [Chapter 9:07].

The circumstances of the case are that on 22 November 2014, and at about 1800 hours, the applicant was driving a commuter omnibus along Upper East, Avondale, Harare, in the company of two accomplices who are at large. The applicant and his accomplices hatched a plan to rob passengers in the commuter omnibus in and around Harare. They were armed with a firearm and knives. The applicant and his accomplices ferried passengers at Coppa Cabbana Rank intending to go to Marlborough East. The commuter omnibus had eighteen passengers. On the way to Marlborough East the driver diverted the route and turned into Upper East towards Mt Pleasant. One of the accused persons produced a knife and shouted at the top of his voice ordering everyone to keep quite. The other accomplice withdrew a pistol and pointed it at the other passengers whilst demanding for all bags. The applicant, who was the conductor, snatched the complainant's handbag and stole USD$440= and her Samsung S4 Galaxy IMEI number 358904050059490. After the robbery, the applicant and his accomplices pushed the complainant out of the moving vehicle. They drove off at high speed along Pendenis Road, Mt Pleasant, Harare.

On 29 January 2015 the police details received information to the effect that the stolen cell phone was being used by Gerald Tarasikirwa. Detectives interviewed Gerald Tarasikirwa who indicated that he bought that cellphone from the applicant but had sold it to one Owen Chinopamba. The cell phone was then recovered and it was positively identified by the complainant as hers. The detectives interviewed the applicant but he failed to give an account of where he obtained it. He was then arrested.

The respondent made a concession that the applicant is a good candidate for bail. The reason being that the cell phone had changed hands hence the evidence against the applicant was weak.

The investigating officer, Detective Sergeant Alice Chirombo, deposed to an affidavit opposing bail. Her basis for opposing bail being that the applicant is likely to interfere with witnesses and investigations. Further, some stolen property has not been recovered, and, if granted bail, the applicant might hinder the arrest of the outstanding accomplices. Furthermore, he might team up with his accomplices and commit other similar offences. In the event of a conviction he is likely to be given a lengthy custodial sentence and this would induce him to abscond if granted bail.

The principles were stated as follows:

(1) Whether the applicant will stand trial in due course;

(2) Whether the applicant will interfere with the investigations of the case against him or temper with prosecution witnesses;

(3) Whether the applicant will commit offences while on bail; and

(4) Other considerations the court may deem good and sufficient.

In casu, the applicant was linked to the robbery by the recovered cell phone which was positively identified by the owner. His accomplices are still at large, and, if granted bail, will not only interfere with investigations, but also may commit further offences.

The concession by the respondent is misplaced given the fact that, although the cellphone exchanged hands, the others were able to explain where they got it. The applicant dismally failed to give an account of where he got it. It follows that the doctrine of recent possession will operate against him.

Wherefore, in the result, the application for bail pending trial is dismissed.

prev 1 2 next

Back Main menu

Law Portal Zimbabwe

Bail re: Bail Pending Trial iro Approach, Constitutional Right to Bail & Denial of Bail in the Interests of Justice

HH47-09 : THE STATE vs KISIMUSI E.DHLAMINI and GANDHI MUDZINGWA and ANDRISON MANYERE Ruled By: BHUNU J

HH168-12 : RONALD ROORAI SAMBO vs THE STATE Ruled By: MATHONSI J

Appealed SC07-12 : TUNGAMIRAI MADZOKERE and LAZARUS MAENGAHAMA and STANFORD MAENGAHAMA and PHINEOUS NHATARIKWA and STANFORD MANGWIRO and YVONNE MUSARURWA and REBECCA MAFUKENI vs THE STATE Ruled By: MALABA DCJ

HB55-09 : MPUMELELO MPOFU vs THE STATE Ruled By: NDOU J

HB70-09 : PRESIDENT MASUKUME and ARTWEL NKALA and THABANI MAZIYA and PRAYER DUBE and GIFT MOYO and COLLEN MURWIRA and SHEPHARD TAVACHERA vs THE STATE Ruled By: CHEDA J

HB80-09 : SWINFUN MADYIWA and VICTOR MUNJAYI and SILENT NCUBE and INNOCENT MUZVONGO and LAW MACHANGANI vs THE STATE Ruled By: NDOU J

HB82-09 : TAWANDA CHIGWEDERE and CLAUDIUS MUNENGE and TENDAI MUSUPAI vs THE STATE Ruled By: CHEDA J

HB83-09 : BHEKIMPILO KHESWA vs THE STATE Ruled By: CHEDA J

HB108-09 : OSCAR BOMA and BUSISANI TSHABANGU and TAWANDA CEPHAS NYANDORO vs THE STATE Ruled By: NDOU J

HB111-09 : LUKA MISHECK KHUPE and TSHINDU NCUBE and SIPUDAWU NDEBELE and KHANGEZA MOYO and NKOSILATHI NLEYA vs THE STATE Ruled By: CHEDA J

HB123-09 : HARDSON MHLANGA vs THE STATE Ruled By: CHEDA J

HH48-10 : ALBERT MUGOVE MATAPO and NYASHA ZIVUKU and ONCEMORE MADZURAHONA and EMMANUEL MARARA and THREE OTHERS vs THE STATE Ruled By: MAKARAU JP

HH189-10 : THE STATE vs WILLIAM CHARAMBA and CLEVER MADZANGA Ruled By: MAWADZE J

HH129-10 : SIMBARASHE MABVUDZI vs THE STATE Ruled By: BHUNU J

HH143-10 : GIFT GAMBIZA vs THE STATE Ruled By: BHUNU J

HH74-11 : ELTON MANGOMA vs THE STATE Ruled By: KUDYA J

View Appeal HH154-11 : TUNGAMIRAI MADZOKERE and LAST TAMAI MAENGAHAMA and LAZARUS MAENGAHANA and OTHERS vs THE STATE Ruled By: UCHENA J

HB24-11 : TAKAFA VUMBUNU vs THE STATE Ruled By: NDOU J

HH221-10 : TITO MWANA vs THE STATE Ruled By: CHIWESHE JP

HB53-11 : CHARLES THOMAS and JOHN GAZI and PAUL SIWELA vs THE STATE Ruled By: NDOU J

HH224-10 : KAMUDYARIWA TIRIVANGANI vs THE STATE Ruled By: CHIWESHE JP

HB04-10 : VITALIS SHAMBIRA vs THE STATE Ruled By: CHEDA J

HB112-11 : BONGANI SICELO MBAMBO vs THE STATE Ruled By: MATHONSI J

HB115-11 : PISI NDLOVU (NEE NXUMALO) vs THE STATE Ruled By: NDOU J

HB124-11 : ROPAFADZO MHUNGU vs THE STATE Ruled By: CHEDA J

HB47-10 : MORRIS DUWA vs THE STATE Ruled By: CHEDA J

HH76-13 : MATOBO KINGSLEY KASHWEKA vs THE STATE Ruled By: MWAYERA J

HH88-13 : THABANI MPOFU and FELIX FINR FANI and WARSHIP DUMBA and METHULI TSHUMA vs THE STATE Ruled By: BHUNU J

HB80-13 : JEPHIAS MANGISI vs THE STATE Ruled By: MAKONESE J

HH06-14 : LEON MAWONDO vs THE STATE Ruled By: MATANDA-MOYO J

HB114-11 : MONICA LUBIMBI vs THE STATE Ruled By: NDOU J

HH219-14 : NORMAN KONDWANE and SHEPHERD KATIYO and JOSEPH GANYANI and RUSSEL MHUKAYESANGO vs THE STATE Ruled By: CHIGUMBA J

HH220-14 : MACDONALD S. vs THE STATE Ruled By: CHIGUMBA J

HH221-14 : PARDON CHIGWADA and BRIAN DARRYKEN and BLESSING MAVHUNGA and DOMINIC MASIKA and KUMBIRAI CHAKEZHA vs THE STATE Ruled By: CHIGUMBA J

HB192-11 : LINCOLYN TENDAI MUBAKI vs THE STATE Ruled By: MATHONSI J

HH567-14 : THE STATE vs CLEMENCE MUVAMBWI Ruled By: BHUNU J

View Appeal SC20-17 : THE ATTORNEY-GENERAL vs PAUL SIWELA Ruled By: CHIDYAUSIKU CJ

HB05-16 : LINDANI CAPHU vs THE STATE Ruled By: MATHONSI J

HMA06-17 : COLLEN CHIPETU vs STATE Ruled By: MAFUSIRE J

HMA03-16 : THE STATE vs JEALOUS NEMARINGA and PATRICK MARUFU Ruled By: MAFUSIRE J

HMA08-16 : TAVONGA SHAVA vs THE STATE Ruled By: MAFUSIRE J

HB13-16 : TENDAI NKOMO vs THE STATE Ruled By: MAKONESE J

HB32-16 : OBED NCUBE vs THE STATE Ruled By: MAKONESE J

HB55-16 : FELODY MUNSAKA vs THE STATE Ruled By: MATHONSI J

HH122-15 : JONATHAN MUALA vs THE STATE Ruled By: MAWADZE J

HH133-15 : TATENDA MAREMBO vs THE STATE Ruled By: TAGU J

HH133-15 : TATENDA MAREMBO vs THE STATE Ruled By: TAGU J

HMA20-18 : DUMISANI MOYO vs THE STATE Ruled By: MAFUSIRE J

SC71-19 : PRISCAH MUPFUMIRA vs THE STATE Ruled By: GOWORA JA

HH193-15 : WIRIMAI GARURA vs THE STATE Ruled By: TAGU J

Categories

Your Donation.

Law Portal
Zimbabwe

HH47-09 : THE STATE vs KISIMUSI E.DHLAMINI and GANDHI MUDZINGWA and ANDRISON MANYERE
Ruled By: BHUNU J

HH168-12 : RONALD ROORAI SAMBO vs THE STATE
Ruled By: MATHONSI J

Appealed SC07-12 : TUNGAMIRAI MADZOKERE and LAZARUS MAENGAHAMA and STANFORD MAENGAHAMA and PHINEOUS NHATARIKWA and STANFORD MANGWIRO and YVONNE MUSARURWA and REBECCA MAFUKENI vs THE STATE
Ruled By: MALABA DCJ

HB55-09 : MPUMELELO MPOFU vs THE STATE
Ruled By: NDOU J

HB70-09 : PRESIDENT MASUKUME and ARTWEL NKALA and THABANI MAZIYA and PRAYER DUBE and GIFT MOYO and COLLEN MURWIRA and SHEPHARD TAVACHERA vs THE STATE
Ruled By: CHEDA J

HB80-09 : SWINFUN MADYIWA and VICTOR MUNJAYI and SILENT NCUBE and INNOCENT MUZVONGO and LAW MACHANGANI vs THE STATE
Ruled By: NDOU J

HB82-09 : TAWANDA CHIGWEDERE and CLAUDIUS MUNENGE and TENDAI MUSUPAI vs THE STATE
Ruled By: CHEDA J

HB83-09 : BHEKIMPILO KHESWA vs THE STATE
Ruled By: CHEDA J

HB108-09 : OSCAR BOMA and BUSISANI TSHABANGU and TAWANDA CEPHAS NYANDORO vs THE STATE
Ruled By: NDOU J

HB111-09 : LUKA MISHECK KHUPE and TSHINDU NCUBE and SIPUDAWU NDEBELE and KHANGEZA MOYO and NKOSILATHI NLEYA vs THE STATE
Ruled By: CHEDA J

HB123-09 : HARDSON MHLANGA vs THE STATE
Ruled By: CHEDA J

HH48-10 : ALBERT MUGOVE MATAPO and NYASHA ZIVUKU and ONCEMORE MADZURAHONA and EMMANUEL MARARA and THREE OTHERS vs THE STATE
Ruled By: MAKARAU JP

HH189-10 : THE STATE vs WILLIAM CHARAMBA and CLEVER MADZANGA
Ruled By: MAWADZE J

HH129-10 : SIMBARASHE MABVUDZI vs THE STATE
Ruled By: BHUNU J

HH143-10 : GIFT GAMBIZA vs THE STATE
Ruled By: BHUNU J

HH74-11 : ELTON MANGOMA vs THE STATE
Ruled By: KUDYA J

View Appeal HH154-11 : TUNGAMIRAI MADZOKERE and LAST TAMAI MAENGAHAMA and LAZARUS MAENGAHANA and OTHERS vs THE STATE
Ruled By: UCHENA J

HB24-11 : TAKAFA VUMBUNU vs THE STATE
Ruled By: NDOU J

HH221-10 : TITO MWANA vs THE STATE
Ruled By: CHIWESHE JP

HB53-11 : CHARLES THOMAS and JOHN GAZI and PAUL SIWELA vs THE STATE
Ruled By: NDOU J

HH224-10 : KAMUDYARIWA TIRIVANGANI vs THE STATE
Ruled By: CHIWESHE JP

HB04-10 : VITALIS SHAMBIRA vs THE STATE
Ruled By: CHEDA J

HB112-11 : BONGANI SICELO MBAMBO vs THE STATE
Ruled By: MATHONSI J

HB115-11 : PISI NDLOVU (NEE NXUMALO) vs THE STATE
Ruled By: NDOU J

HB124-11 : ROPAFADZO MHUNGU vs THE STATE
Ruled By: CHEDA J

HB47-10 : MORRIS DUWA vs THE STATE
Ruled By: CHEDA J

HH76-13 : MATOBO KINGSLEY KASHWEKA vs THE STATE
Ruled By: MWAYERA J

HH88-13 : THABANI MPOFU and FELIX FINR FANI and WARSHIP DUMBA and METHULI TSHUMA vs THE STATE
Ruled By: BHUNU J

HB80-13 : JEPHIAS MANGISI vs THE STATE
Ruled By: MAKONESE J

HH06-14 : LEON MAWONDO vs THE STATE
Ruled By: MATANDA-MOYO J

HB114-11 : MONICA LUBIMBI vs THE STATE
Ruled By: NDOU J

HH219-14 : NORMAN KONDWANE and SHEPHERD KATIYO and JOSEPH GANYANI and RUSSEL MHUKAYESANGO vs THE STATE
Ruled By: CHIGUMBA J

HH220-14 : MACDONALD S. vs THE STATE
Ruled By: CHIGUMBA J

HH221-14 : PARDON CHIGWADA and BRIAN DARRYKEN and BLESSING MAVHUNGA and DOMINIC MASIKA and KUMBIRAI CHAKEZHA vs THE STATE
Ruled By: CHIGUMBA J

HB192-11 : LINCOLYN TENDAI MUBAKI vs THE STATE
Ruled By: MATHONSI J

HH567-14 : THE STATE vs CLEMENCE MUVAMBWI
Ruled By: BHUNU J

View Appeal SC20-17 : THE ATTORNEY-GENERAL vs PAUL SIWELA
Ruled By: CHIDYAUSIKU CJ

HB05-16 : LINDANI CAPHU vs THE STATE
Ruled By: MATHONSI J

HMA06-17 : COLLEN CHIPETU vs STATE
Ruled By: MAFUSIRE J

HMA03-16 : THE STATE vs JEALOUS NEMARINGA and PATRICK MARUFU
Ruled By: MAFUSIRE J

HMA08-16 : TAVONGA SHAVA vs THE STATE
Ruled By: MAFUSIRE J

HB13-16 : TENDAI NKOMO vs THE STATE
Ruled By: MAKONESE J

HB32-16 : OBED NCUBE vs THE STATE
Ruled By: MAKONESE J

HB55-16 : FELODY MUNSAKA vs THE STATE
Ruled By: MATHONSI J

HH122-15 : JONATHAN MUALA vs THE STATE
Ruled By: MAWADZE J

HH133-15 : TATENDA MAREMBO vs THE STATE
Ruled By: TAGU J

HH133-15 : TATENDA MAREMBO vs THE STATE
Ruled By: TAGU J

HMA20-18 : DUMISANI MOYO vs THE STATE
Ruled By: MAFUSIRE J

SC71-19 : PRISCAH MUPFUMIRA vs THE STATE
Ruled By: GOWORA JA

HH193-15 : WIRIMAI GARURA vs THE STATE
Ruled By: TAGU J