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HH254-12 - DAVID CHIMUKOKO and GRACIANO KAZINGIZI and BIGGIE OFFICE and RAPHEL BOBO and PERKINS KARIKOGA and PHILLIP KATSANDE and ERICK CHATIZA vs THE STATE

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Bail-viz bail pending trial re public violence.
Bail-viz co-accused re the principle of equality of treatment.
Bail-viz bail pending trial re murder iro multiple assailants.
Bail-viz bail pending trial re murder iro mob assault.
Bail-viz public violence re politically motivated violence.
Bail-viz public violence re politically-motivated violence.
Bail-viz interference with witnesses.
Bail-viz strength of the prosecution case re inducement to abscond.
Bail-viz strength of the State case re flight risk.
Bail-viz interference with investigations.
Bail-viz seriousness of the offence re sentence upon conviction iro incentive to flee.
Bail-viz public sentiment.
Bail-viz societal reaction.
Bail-viz bail pending trial re section 116 of the Criminal Procedure and Evidence Act [Chapter 9:07].
Bail-viz bail pending trial re section 117 of the Criminal Procedure and Evidence Act [Chapter 9:07].
Bail-viz the presumption of innocence.
Procedural Law-viz rules of construction re peremptory provisions iro use of the word "shall".
Procedural Law-viz rules of interpretation re mandatory provisions iro use of the word "shall".
Procedural Law-viz rules of construction re statutory provisions iro hortatory provisions.
Procedural Law-viz rules of interpretation re statutory provisions iro qualified provisions.
Bail-viz seriousness of the offence re strength of the State case iro likelihood to abscond.
Bail-viz multiple accused re the principle of equality of treatment iro personal circumstances.

Bail re: Approach iro Approach to Bail Hearings and Rules of Evidence in Bail Proceedings


Section 117(1) of the Criminal Procedure and Evidence Act [Chapter 9:07] reads:

“Subject to this section and section 23, a person who is in custody in respect of any offence shall be entitled to be released on bail at any time after he or she had appeared in court on a charge and before sentence is imposed unless the court finds that it is in the interest of justice that he or she be detained in custody.”

The use of the word shall be entitled to bail, in my view, denotes, that, where possible, the court should lean in favour of the liberty of the individual provided the interest of justice is protected by such a decision.

Section 117 of the Criminal Procedure and Evidence Act clearly spells out, that, an accused person is entitled to bail unless the court finds that it is in the interest of justice that an accused person should be detained in custody. The detention can be in the interest of justice if one or more factors mentioned in section 117(2)(a) and (b) of the Criminal Procedure and Evidence Act is or are established against him.

Section 117(2)(a)–(b) of the Criminal Procedure and Evidence Act reads:

“(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 or 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(a)–(e) goes on to outline some factors, among others, which the court may take into account on determining whether or not the applicant is a suitable candidate for bail.

If one or more factors alluded to in section 117(2) of the Criminal Procedure and Evidence Act are established, then, the applicant ought not to be released on bail; if, on the other hand, such factors are not established, then, the applicant ought to be admitted to bail.

The court must therefore endeavour to seek to establish a balance between the interest of administration of justice and the individual liberty.

In Attorney General v Phiri 1987 (2) ZLR 33, REYNOLDS J lucidly underscored that the fundamental principle governing the court's approach to applications for bail is that of upholding the interest of justice.

This requires the court, as expeditiously as possible, to fulfil its function of safeguarding the liberty of the individual while at the same time protecting the interest of justice.

The questions that are to be considered are; whether the applicant will stand or evade trial; whether or not the applicant will interfere with witnesses or investigations; whether or not the applicant will commit other offences; and whether or not release will endanger public peace and security, to name but a few.

Rules of Construction or Interpretation re: Hortatory or Qualified Provisions


Section 117(1) of the Criminal Procedure and Evidence Act [Chapter 9:07] reads:

“Subject to this section and section 23, a person who is in custody in respect of any offence shall be entitled to be released on bail at any time after he or she had appeared in court on a charge and before sentence is imposed unless the court finds that it is in the interest of justice that he or she be detained in custody.”

The use of the word shall be entitled to bail, in my view, denotes, that, where possible, the court should lean in favour of the liberty of the individual provided the interest of justice is protected by such a decision.

Section 117 of the Criminal Procedure and Evidence Act clearly spells out, that, an accused person is entitled to bail unless the court finds that it is in the interest of justice that an accused person should be detained in custody. The detention can be in the interest of justice if one or more factors mentioned in section 117(2)(a) and (b) of the Criminal Procedure and Evidence Act is or are established against him.

Section 117(2)(a)–(b) of the Criminal Procedure and Evidence Act reads:

“(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 or 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(a)–(e) goes on to outline some factors, among others, which the court may take into account on determining whether or not the applicant is a suitable candidate for bail.

If one or more factors alluded to in section 117(2) of the Criminal Procedure and Evidence Act are established, then, the applicant ought not to be released on bail; if, on the other hand, such factors are not established, then, the applicant ought to be admitted to bail.

The court must therefore endeavour to seek to establish a balance between the interest of administration of justice and the individual liberty.

In Attorney General v Phiri 1987 (2) ZLR 33, REYNOLDS J lucidly underscored that the fundamental principle governing the court's approach to applications for bail is that of upholding the interest of justice.

This requires the court, as expeditiously as possible, to fulfil its function of safeguarding the liberty of the individual while at the same time protecting the interest of justice.

The questions that are to be considered are; whether the applicant will stand or evade trial; whether or not the applicant will interfere with witnesses or investigations; whether or not the applicant will commit other offences; and whether or not release will endanger public peace and security, to name but a few.

Evidence of Identification, Identification Parade, Tool Mark Evidence, Alias, Evidence Aliunde & the Defence of Alibi


The seven applicants approached the court on/with an application for bail pending trial.

The applicants are facing one count of public violence as defined in section 36(1) of the Criminal Law (Codification and Reform) Act [Chapter 9:23] and one count of murder as defined in section 47 of the same Act.

It is alleged, that, on 26 May 2012 the applicants, who are Zanu PF supporters, acting with common purposes, teamed up with other five Zanu-PF supporters, and, being armed with logs and stones, went and attacked MDC-T party supporters who were attending a police-sanctioned rally thus disturbing the peace and proceedings; and that on the same day, the applicants, and others, teamed up and assaulted Cephas Maguru with blunt objects resulting in his death.

The respondent opposed the application for bail pending trial.

Counsel for the applicants submitted that all the applicants were suitable candidates for bail. In written submissions, he outlined the personal circumstances of each of the applicants and pointed out that they all voluntarily went to the police station upon being advised to attend.

The applicants counsel submitted, orally, that, the State case was weak as no one had identified the applicants and that they were just implicated since they hold positions of authority in the local district Zanu-PF structures.

He further presented that the applicants would not interfere with the witnesses in any manner because they did not know the witnesses.

He argued, that, the applicants were suitable candidates for bail since there was nothing to induce or tempt them to abscond faced with a weak State case.

Counsel for the respondent buttressed his written submissions in opposition orally.

He highlighted that the State case is strong given that the applicants were positively identified at the scene by the complainants in the public violence and that there was no question of mistaken identity since this was in broad daylight and the complainants and the applicants stay in the same neighbourhood.

He argued that the likelihood of interference with witnesses and investigations was high given the influential positions the applicants held.

These factors, coupled with the nature of allegations, were taken as likely to induce the spirit of abscondment.

The respondent's counsel further argued, that, the applicants should not be granted bail as this would cause public outrage.

It was apparent from submissions by both counsel that they were relying on provisions of section 116 and 117 of the Criminal Procedure & Evidence Act [Chapter 9:07].

The criminal hallmark, that the accused is presumed innocent till proven guilty, is clearly spelt out from the wording of section 117 of the Criminal Procedure and Evidence Act [Chapter 9:07].

Section 117(1) of the Criminal Procedure and Evidence Act reads:

“Subject to this section and section 23, a person who is in custody in respect of any offence shall be entitled to be released on bail at any time after he or she had appeared in court on a charge and before sentence is imposed unless the court finds that it is in the interest of justice that he or she be detained in custody.”

The use of the word shall be entitled to bail, in my view, denotes, that, where possible, the court should lean in favour of the liberty of the individual provided the interest of justice is protected by such a decision.

Section 117 of the Criminal Procedure and Evidence Act clearly spells out, that, an accused person is entitled to bail unless the court finds that it is in the interest of justice that an accused person should be detained in custody. The detention can be in the interest of justice if one or more factors mentioned in section 117(2)(a) and (b) of the Criminal Procedure and Evidence Act is or are established against him.

Section 117(2)(a)–(b) of the Criminal Procedure and Evidence Act reads:

“(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 or 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(a)–(e) goes on to outline some factors, among others, which the court may take into account on determining whether or not the applicant is a suitable candidate for bail.

If one or more factors alluded to in section 117(2) of the Criminal Procedure and Evidence Act are established, then, the applicant ought not to be released on bail; if, on the other hand, such factors are not established, then, the applicant ought to be admitted to bail.

The court must therefore endeavour to seek to establish a balance between the interest of administration of justice and the individual liberty.

In Attorney General v Phiri 1987 (2) ZLR 33, REYNOLDS J lucidly underscored that the fundamental principle governing the court's approach to applications for bail is that of upholding the interest of justice.

This requires the court, as expeditiously as possible, to fulfil its function of safeguarding the liberty of the individual while at the same time protecting the interest of justice.

The questions that are to be considered are; whether the applicant will stand or evade trial; whether or not the applicant will interfere with witnesses or investigations; whether or not the applicant will commit other offences; and whether or not release will endanger public peace and security, to name but a few.

Having been presented with the applicants personal circumstances and argument that they are suitable candidates for bail, on one hand, and the respondent's grounds that the applicants are not suitable candidates for bail, it remains for the court to apply the factors to the applicants.

I propose to start with the aspect of likelihood to interfere with witnesses and investigations first.

The allegations are said to have occurred at a shopping centre in a neighbourhood where all the applicants reside, and, obviously, even if some passers-by and outsiders had come to attend an MDC-T rally some of the witnesses would be members of the local community. It would be stretching one's imagination too far to point out that all the witnesses are not known to the applicants because there is no indication that villagers had, prior, been told not to visit the shopping centre.

Given the applicant's leadership position in their political party, the State's fear that they can exert influence on witnesses is not baseless but real.

Bail re: Murder iro Mob Assault, Multiple Assailants or Murder By a Group


The seven applicants approached the court on/with an application for bail pending trial.

The applicants are facing one count of public violence as defined in section 36(1) of the Criminal Law (Codification and Reform) Act [Chapter 9:23] and one count of murder as defined in section 47 of the same Act.

It is alleged, that, on 26 May 2012 the applicants, who are Zanu PF supporters, acting with common purposes, teamed up with other five Zanu-PF supporters, and, being armed with logs and stones, went and attacked MDC-T party supporters who were attending a police-sanctioned rally thus disturbing the peace and proceedings; and that on the same day, the applicants, and others, teamed up and assaulted Cephas Maguru with blunt objects resulting in his death.

The respondent opposed the application for bail pending trial.

Counsel for the applicants submitted that all the applicants were suitable candidates for bail. In written submissions, he outlined the personal circumstances of each of the applicants and pointed out that they all voluntarily went to the police station upon being advised to attend.

The applicants counsel submitted, orally, that, the State case was weak as no one had identified the applicants and that they were just implicated since they hold positions of authority in the local district Zanu-PF structures.

He further presented that the applicants would not interfere with the witnesses in any manner because they did not know the witnesses.

He argued, that, the applicants were suitable candidates for bail since there was nothing to induce or tempt them to abscond faced with a weak State case.

Counsel for the respondent buttressed his written submissions in opposition orally.

He highlighted that the State case is strong given that the applicants were positively identified at the scene by the complainants in the public violence and that there was no question of mistaken identity since this was in broad daylight and the complainants and the applicants stay in the same neighbourhood.

He argued that the likelihood of interference with witnesses and investigations was high given the influential positions the applicants held.

These factors, coupled with the nature of allegations, were taken as likely to induce the spirit of abscondment.

The respondent's counsel further argued, that, the applicants should not be granted bail as this would cause public outrage.

It was apparent from submissions by both counsel that they were relying on provisions of section 116 and 117 of the Criminal Procedure & Evidence Act [Chapter 9:07].

The criminal hallmark, that the accused is presumed innocent till proven guilty, is clearly spelt out from the wording of section 117 of the Criminal Procedure and Evidence Act [Chapter 9:07].

Section 117(1) of the Criminal Procedure and Evidence Act reads:

“Subject to this section and section 23, a person who is in custody in respect of any offence shall be entitled to be released on bail at any time after he or she had appeared in court on a charge and before sentence is imposed unless the court finds that it is in the interest of justice that he or she be detained in custody.”

The use of the word shall be entitled to bail, in my view, denotes, that, where possible, the court should lean in favour of the liberty of the individual provided the interest of justice is protected by such a decision.

Section 117 of the Criminal Procedure and Evidence Act clearly spells out, that, an accused person is entitled to bail unless the court finds that it is in the interest of justice that an accused person should be detained in custody. The detention can be in the interest of justice if one or more factors mentioned in section 117(2)(a) and (b) of the Criminal Procedure and Evidence Act is or are established against him.

Section 117(2)(a)–(b) of the Criminal Procedure and Evidence Act reads:

“(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 or 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(a)–(e) goes on to outline some factors, among others, which the court may take into account on determining whether or not the applicant is a suitable candidate for bail.

If one or more factors alluded to in section 117(2) of the Criminal Procedure and Evidence Act are established, then, the applicant ought not to be released on bail; if, on the other hand, such factors are not established, then, the applicant ought to be admitted to bail.

The court must therefore endeavour to seek to establish a balance between the interest of administration of justice and the individual liberty.

In Attorney General v Phiri 1987 (2) ZLR 33, REYNOLDS J lucidly underscored that the fundamental principle governing the court's approach to applications for bail is that of upholding the interest of justice.

This requires the court, as expeditiously as possible, to fulfil its function of safeguarding the liberty of the individual while at the same time protecting the interest of justice.

The questions that are to be considered are; whether the applicant will stand or evade trial; whether or not the applicant will interfere with witnesses or investigations; whether or not the applicant will commit other offences; and whether or not release will endanger public peace and security, to name but a few.

Having been presented with the applicants personal circumstances and argument that they are suitable candidates for bail, on one hand, and the respondent's grounds that the applicants are not suitable candidates for bail, it remains for the court to apply the factors to the applicants.

I propose to start with the aspect of likelihood to interfere with witnesses and investigations first.

The allegations are said to have occurred at a shopping centre in a neighbourhood where all the applicants reside, and, obviously, even if some passers-by and outsiders had come to attend an MDC-T rally some of the witnesses would be members of the local community. It would be stretching one's imagination too far to point out that all the witnesses are not known to the applicants because there is no indication that villagers had, prior, been told not to visit the shopping centre.

Given the applicant's leadership position in their political party, the State's fear that they can exert influence on witnesses is not baseless but real.

Given the nature of the charges the applicants are facing, public violence and murder by a group, the time the State has taken to investigate cannot be said to be unreasonable moreso given that there are other accused persons who are said to be still at large.

Paragraph 7.2 of the respondent's response talks of investigating likely to be completed by 16 June 2012 thus opening other avenues to the applicants.

As it stands now, the likelihood of interference with witnesses and investigating is high.

The charges that the applicants are facing, and the manner in which the offences are alleged to have been committed, denotes the seriousness of the offences.

The court is alive to the fact that seriousness, on its own, is not reason for denying bail for the obvious reason the applicants/accused are innocent till proven guilty; but, as correctly observed by the respondent's counsel, that, when viewed in conjunction with other facts, like strength of the State case; that is that all the applicants were at or in the vicinity of the scene of crime and were identified by witnesses neighbours, then, the natural fears that attach to the possible sentence in the event of conviction can induce or tempt the applicants into absconding.

The court is alive to the personal circumstances of all the applicants which are basically what was submitted in writing in the applicants Bail Statement.

They are Zimbabweans of fixed abode, but, the circumstances of this case, that is, the nature of charges, likelihood of abscondment, the likelihood of interference with witnesses, render imposition of bail conditions indecisive.

Further, in considering factors highlighted earlier in section 117(b) of the Criminal Procedure and Evidence Act, the circumstances of the present case are the exceptional circumstances envisaged where it would be contra interest of justice to release the applicants on bail where such is likely to disturb public order and security and undermine public peace.

The allegations, as observed by counsel for the respondent, were politically-motivated, such that, release of the applicants on bail, at this stage, is likely to cause public outrage and thus undermine public order and security while at the same time undermining the objectives or proper functioning of the criminal justice system including the bail system (section 117(iv) of the Criminal Procedure and Evidence Act).

There is no basis for treating the seven applicants differently in the present case.

The principles governing the application for bail pending trial, though bail should be allowed in the interest of the individual liberty unless it is not in the interests of justice, when applied in relation to the applicants, clearly shows that admission of the applicants to bail would jeopardise and not safeguard the proper administration of justice (given the likelihood of interference with witnesses and peace, threat to public security and order, and the likelihood of absondment).

The application for bail pending trial is accordingly dismissed in respect of all the applicants.

Bail re: Public Violence


The seven applicants approached the court on/with an application for bail pending trial.

The applicants are facing one count of public violence as defined in section 36(1) of the Criminal Law (Codification and Reform) Act [Chapter 9:23] and one count of murder as defined in section 47 of the same Act.

It is alleged, that, on 26 May 2012 the applicants, who are Zanu PF supporters, acting with common purposes, teamed up with other five Zanu-PF supporters, and, being armed with logs and stones, went and attacked MDC-T party supporters who were attending a police-sanctioned rally thus disturbing the peace and proceedings; and that on the same day, the applicants, and others, teamed up and assaulted Cephas Maguru with blunt objects resulting in his death.

The respondent opposed the application for bail pending trial.

Counsel for the applicants submitted that all the applicants were suitable candidates for bail. In written submissions, he outlined the personal circumstances of each of the applicants and pointed out that they all voluntarily went to the police station upon being advised to attend.

The applicants counsel submitted, orally, that, the State case was weak as no one had identified the applicants and that they were just implicated since they hold positions of authority in the local district Zanu-PF structures.

He further presented that the applicants would not interfere with the witnesses in any manner because they did not know the witnesses.

He argued, that, the applicants were suitable candidates for bail since there was nothing to induce or tempt them to abscond faced with a weak State case.

Counsel for the respondent buttressed his written submissions in opposition orally.

He highlighted that the State case is strong given that the applicants were positively identified at the scene by the complainants in the public violence and that there was no question of mistaken identity since this was in broad daylight and the complainants and the applicants stay in the same neighbourhood.

He argued that the likelihood of interference with witnesses and investigations was high given the influential positions the applicants held.

These factors, coupled with the nature of allegations, were taken as likely to induce the spirit of abscondment.

The respondent's counsel further argued, that, the applicants should not be granted bail as this would cause public outrage.

It was apparent from submissions by both counsel that they were relying on provisions of section 116 and 117 of the Criminal Procedure & Evidence Act [Chapter 9:07].

The criminal hallmark, that the accused is presumed innocent till proven guilty, is clearly spelt out from the wording of section 117 of the Criminal Procedure and Evidence Act [Chapter 9:07].

Section 117(1) of the Criminal Procedure and Evidence Act reads:

“Subject to this section and section 23, a person who is in custody in respect of any offence shall be entitled to be released on bail at any time after he or she had appeared in court on a charge and before sentence is imposed unless the court finds that it is in the interest of justice that he or she be detained in custody.”

The use of the word shall be entitled to bail, in my view, denotes, that, where possible, the court should lean in favour of the liberty of the individual provided the interest of justice is protected by such a decision.

Section 117 of the Criminal Procedure and Evidence Act clearly spells out, that, an accused person is entitled to bail unless the court finds that it is in the interest of justice that an accused person should be detained in custody. The detention can be in the interest of justice if one or more factors mentioned in section 117(2)(a) and (b) of the Criminal Procedure and Evidence Act is or are established against him.

Section 117(2)(a)–(b) of the Criminal Procedure and Evidence Act reads:

“(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 or 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(a)–(e) goes on to outline some factors, among others, which the court may take into account on determining whether or not the applicant is a suitable candidate for bail.

If one or more factors alluded to in section 117(2) of the Criminal Procedure and Evidence Act are established, then, the applicant ought not to be released on bail; if, on the other hand, such factors are not established, then, the applicant ought to be admitted to bail.

The court must therefore endeavour to seek to establish a balance between the interest of administration of justice and the individual liberty.

In Attorney General v Phiri 1987 (2) ZLR 33, REYNOLDS J lucidly underscored that the fundamental principle governing the court's approach to applications for bail is that of upholding the interest of justice.

This requires the court, as expeditiously as possible, to fulfil its function of safeguarding the liberty of the individual while at the same time protecting the interest of justice.

The questions that are to be considered are; whether the applicant will stand or evade trial; whether or not the applicant will interfere with witnesses or investigations; whether or not the applicant will commit other offences; and whether or not release will endanger public peace and security, to name but a few.

Having been presented with the applicants personal circumstances and argument that they are suitable candidates for bail, on one hand, and the respondent's grounds that the applicants are not suitable candidates for bail, it remains for the court to apply the factors to the applicants.

I propose to start with the aspect of likelihood to interfere with witnesses and investigations first.

The allegations are said to have occurred at a shopping centre in a neighbourhood where all the applicants reside, and, obviously, even if some passers-by and outsiders had come to attend an MDC-T rally some of the witnesses would be members of the local community. It would be stretching one's imagination too far to point out that all the witnesses are not known to the applicants because there is no indication that villagers had, prior, been told not to visit the shopping centre.

Given the applicant's leadership position in their political party, the State's fear that they can exert influence on witnesses is not baseless but real.

Given the nature of the charges the applicants are facing, public violence and murder by a group, the time the State has taken to investigate cannot be said to be unreasonable moreso given that there are other accused persons who are said to be still at large.

Paragraph 7.2 of the respondent's response talks of investigating likely to be completed by 16 June 2012 thus opening other avenues to the applicants.

As it stands now, the likelihood of interference with witnesses and investigating is high.

The charges that the applicants are facing, and the manner in which the offences are alleged to have been committed, denotes the seriousness of the offences.

The court is alive to the fact that seriousness, on its own, is not reason for denying bail for the obvious reason the applicants/accused are innocent till proven guilty; but, as correctly observed by the respondent's counsel, that, when viewed in conjunction with other facts, like strength of the State case; that is that all the applicants were at or in the vicinity of the scene of crime and were identified by witnesses neighbours, then, the natural fears that attach to the possible sentence in the event of conviction can induce or tempt the applicants into absconding.

The court is alive to the personal circumstances of all the applicants which are basically what was submitted in writing in the applicants Bail Statement.

They are Zimbabweans of fixed abode, but, the circumstances of this case, that is, the nature of charges, likelihood of abscondment, the likelihood of interference with witnesses, render imposition of bail conditions indecisive.

Further, in considering factors highlighted earlier in section 117(b) of the Criminal Procedure and Evidence Act, the circumstances of the present case are the exceptional circumstances envisaged where it would be contra interest of justice to release the applicants on bail where such is likely to disturb public order and security and undermine public peace.

The allegations, as observed by counsel for the respondent, were politically-motivated, such that, release of the applicants on bail, at this stage, is likely to cause public outrage and thus undermine public order and security while at the same time undermining the objectives or proper functioning of the criminal justice system including the bail system (section 117(iv) of the Criminal Procedure and Evidence Act).

There is no basis for treating the seven applicants differently in the present case.

The principles governing the application for bail pending trial, though bail should be allowed in the interest of the individual liberty unless it is not in the interests of justice, when applied in relation to the applicants, clearly shows that admission of the applicants to bail would jeopardise and not safeguard the proper administration of justice (given the likelihood of interference with witnesses and peace, threat to public security and order, and the likelihood of absondment).

The application for bail pending trial is accordingly dismissed in respect of all the applicants.

Bail re: Approach iro Accomplices, Co-Accused Persons, Gender Considerations & the Principle of Equality of Treatment


The seven applicants approached the court on/with an application for bail pending trial.

The applicants are facing one count of public violence as defined in section 36(1) of the Criminal Law (Codification and Reform) Act [Chapter 9:23] and one count of murder as defined in section 47 of the same Act.

It is alleged, that, on 26 May 2012 the applicants, who are Zanu PF supporters, acting with common purposes, teamed up with other five Zanu-PF supporters, and, being armed with logs and stones, went and attacked MDC-T party supporters who were attending a police-sanctioned rally thus disturbing the peace and proceedings; and that on the same day, the applicants, and others, teamed up and assaulted Cephas Maguru with blunt objects resulting in his death.

The respondent opposed the application for bail pending trial.

Counsel for the applicants submitted that all the applicants were suitable candidates for bail. In written submissions, he outlined the personal circumstances of each of the applicants and pointed out that they all voluntarily went to the police station upon being advised to attend.

The applicants counsel submitted, orally, that, the State case was weak as no one had identified the applicants and that they were just implicated since they hold positions of authority in the local district Zanu-PF structures.

He further presented that the applicants would not interfere with the witnesses in any manner because they did not know the witnesses.

He argued, that, the applicants were suitable candidates for bail since there was nothing to induce or tempt them to abscond faced with a weak State case.

Counsel for the respondent buttressed his written submissions in opposition orally.

He highlighted that the State case is strong given that the applicants were positively identified at the scene by the complainants in the public violence and that there was no question of mistaken identity since this was in broad daylight and the complainants and the applicants stay in the same neighbourhood.

He argued that the likelihood of interference with witnesses and investigations was high given the influential positions the applicants held.

These factors, coupled with the nature of allegations, were taken as likely to induce the spirit of abscondment.

The respondent's counsel further argued, that, the applicants should not be granted bail as this would cause public outrage.

It was apparent from submissions by both counsel that they were relying on provisions of section 116 and 117 of the Criminal Procedure & Evidence Act [Chapter 9:07].

The criminal hallmark, that the accused is presumed innocent till proven guilty, is clearly spelt out from the wording of section 117 of the Criminal Procedure and Evidence Act [Chapter 9:07].

Section 117(1) of the Criminal Procedure and Evidence Act reads:

“Subject to this section and section 23, a person who is in custody in respect of any offence shall be entitled to be released on bail at any time after he or she had appeared in court on a charge and before sentence is imposed unless the court finds that it is in the interest of justice that he or she be detained in custody.”

The use of the word shall be entitled to bail, in my view, denotes, that, where possible, the court should lean in favour of the liberty of the individual provided the interest of justice is protected by such a decision.

Section 117 of the Criminal Procedure and Evidence Act clearly spells out, that, an accused person is entitled to bail unless the court finds that it is in the interest of justice that an accused person should be detained in custody. The detention can be in the interest of justice if one or more factors mentioned in section 117(2)(a) and (b) of the Criminal Procedure and Evidence Act is or are established against him.

Section 117(2)(a)–(b) of the Criminal Procedure and Evidence Act reads:

“(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 or 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(a)–(e) goes on to outline some factors, among others, which the court may take into account on determining whether or not the applicant is a suitable candidate for bail.

If one or more factors alluded to in section 117(2) of the Criminal Procedure and Evidence Act are established, then, the applicant ought not to be released on bail; if, on the other hand, such factors are not established, then, the applicant ought to be admitted to bail.

The court must therefore endeavour to seek to establish a balance between the interest of administration of justice and the individual liberty.

In Attorney General v Phiri 1987 (2) ZLR 33, REYNOLDS J lucidly underscored that the fundamental principle governing the court's approach to applications for bail is that of upholding the interest of justice.

This requires the court, as expeditiously as possible, to fulfil its function of safeguarding the liberty of the individual while at the same time protecting the interest of justice.

The questions that are to be considered are; whether the applicant will stand or evade trial; whether or not the applicant will interfere with witnesses or investigations; whether or not the applicant will commit other offences; and whether or not release will endanger public peace and security, to name but a few.

Having been presented with the applicants personal circumstances and argument that they are suitable candidates for bail, on one hand, and the respondent's grounds that the applicants are not suitable candidates for bail, it remains for the court to apply the factors to the applicants.

I propose to start with the aspect of likelihood to interfere with witnesses and investigations first.

The allegations are said to have occurred at a shopping centre in a neighbourhood where all the applicants reside, and, obviously, even if some passers-by and outsiders had come to attend an MDC-T rally some of the witnesses would be members of the local community. It would be stretching one's imagination too far to point out that all the witnesses are not known to the applicants because there is no indication that villagers had, prior, been told not to visit the shopping centre.

Given the applicant's leadership position in their political party, the State's fear that they can exert influence on witnesses is not baseless but real.

Given the nature of the charges the applicants are facing, public violence and murder by a group, the time the State has taken to investigate cannot be said to be unreasonable moreso given that there are other accused persons who are said to be still at large.

Paragraph 7.2 of the respondent's response talks of investigating likely to be completed by 16 June 2012 thus opening other avenues to the applicants.

As it stands now, the likelihood of interference with witnesses and investigating is high.

The charges that the applicants are facing, and the manner in which the offences are alleged to have been committed, denotes the seriousness of the offences.

The court is alive to the fact that seriousness, on its own, is not reason for denying bail for the obvious reason the applicants/accused are innocent till proven guilty; but, as correctly observed by the respondent's counsel, that, when viewed in conjunction with other facts, like strength of the State case; that is that all the applicants were at or in the vicinity of the scene of crime and were identified by witnesses neighbours, then, the natural fears that attach to the possible sentence in the event of conviction can induce or tempt the applicants into absconding.

The court is alive to the personal circumstances of all the applicants which are basically what was submitted in writing in the applicants Bail Statement.

They are Zimbabweans of fixed abode, but, the circumstances of this case, that is, the nature of charges, likelihood of abscondment, the likelihood of interference with witnesses, render imposition of bail conditions indecisive.

Further, in considering factors highlighted earlier in section 117(b) of the Criminal Procedure and Evidence Act, the circumstances of the present case are the exceptional circumstances envisaged where it would be contra interest of justice to release the applicants on bail where such is likely to disturb public order and security and undermine public peace.

The allegations, as observed by counsel for the respondent, were politically-motivated, such that, release of the applicants on bail, at this stage, is likely to cause public outrage and thus undermine public order and security while at the same time undermining the objectives or proper functioning of the criminal justice system including the bail system (section 117(iv) of the Criminal Procedure and Evidence Act).

There is no basis for treating the seven applicants differently in the present case.

The principles governing the application for bail pending trial, though bail should be allowed in the interest of the individual liberty unless it is not in the interests of justice, when applied in relation to the applicants, clearly shows that admission of the applicants to bail would jeopardise and not safeguard the proper administration of justice (given the likelihood of interference with witnesses and peace, threat to public security and order, and the likelihood of absondment).

The application for bail pending trial is accordingly dismissed in respect of all the applicants.

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


The seven applicants approached the court on/with an application for bail pending trial.

The applicants are facing one count of public violence as defined in section 36(1) of the Criminal Law (Codification and Reform) Act [Chapter 9:23] and one count of murder as defined in section 47 of the same Act.

It is alleged, that, on 26 May 2012 the applicants, who are Zanu PF supporters, acting with common purposes, teamed up with other five Zanu-PF supporters, and, being armed with logs and stones, went and attacked MDC-T party supporters who were attending a police-sanctioned rally thus disturbing the peace and proceedings; and that on the same day, the applicants, and others, teamed up and assaulted Cephas Maguru with blunt objects resulting in his death.

The respondent opposed the application for bail pending trial.

Counsel for the applicants submitted that all the applicants were suitable candidates for bail. In written submissions, he outlined the personal circumstances of each of the applicants and pointed out that they all voluntarily went to the police station upon being advised to attend.

The applicants counsel submitted, orally, that, the State case was weak as no one had identified the applicants and that they were just implicated since they hold positions of authority in the local district Zanu-PF structures.

He further presented that the applicants would not interfere with the witnesses in any manner because they did not know the witnesses.

He argued, that, the applicants were suitable candidates for bail since there was nothing to induce or tempt them to abscond faced with a weak State case.

Counsel for the respondent buttressed his written submissions in opposition orally.

He highlighted that the State case is strong given that the applicants were positively identified at the scene by the complainants in the public violence and that there was no question of mistaken identity since this was in broad daylight and the complainants and the applicants stay in the same neighbourhood.

He argued that the likelihood of interference with witnesses and investigations was high given the influential positions the applicants held.

These factors, coupled with the nature of allegations, were taken as likely to induce the spirit of abscondment.

The respondent's counsel further argued, that, the applicants should not be granted bail as this would cause public outrage.

It was apparent from submissions by both counsel that they were relying on provisions of section 116 and 117 of the Criminal Procedure & Evidence Act [Chapter 9:07].

The criminal hallmark, that the accused is presumed innocent till proven guilty, is clearly spelt out from the wording of section 117 of the Criminal Procedure and Evidence Act [Chapter 9:07].

Section 117(1) of the Criminal Procedure and Evidence Act reads:

“Subject to this section and section 23, a person who is in custody in respect of any offence shall be entitled to be released on bail at any time after he or she had appeared in court on a charge and before sentence is imposed unless the court finds that it is in the interest of justice that he or she be detained in custody.”

The use of the word shall be entitled to bail, in my view, denotes, that, where possible, the court should lean in favour of the liberty of the individual provided the interest of justice is protected by such a decision.

Section 117 of the Criminal Procedure and Evidence Act clearly spells out, that, an accused person is entitled to bail unless the court finds that it is in the interest of justice that an accused person should be detained in custody. The detention can be in the interest of justice if one or more factors mentioned in section 117(2)(a) and (b) of the Criminal Procedure and Evidence Act is or are established against him.

Section 117(2)(a)–(b) of the Criminal Procedure and Evidence Act reads:

“(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 or 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(a)–(e) goes on to outline some factors, among others, which the court may take into account on determining whether or not the applicant is a suitable candidate for bail.

If one or more factors alluded to in section 117(2) of the Criminal Procedure and Evidence Act are established, then, the applicant ought not to be released on bail; if, on the other hand, such factors are not established, then, the applicant ought to be admitted to bail.

The court must therefore endeavour to seek to establish a balance between the interest of administration of justice and the individual liberty.

In Attorney General v Phiri 1987 (2) ZLR 33, REYNOLDS J lucidly underscored that the fundamental principle governing the court's approach to applications for bail is that of upholding the interest of justice.

This requires the court, as expeditiously as possible, to fulfil its function of safeguarding the liberty of the individual while at the same time protecting the interest of justice.

The questions that are to be considered are; whether the applicant will stand or evade trial; whether or not the applicant will interfere with witnesses or investigations; whether or not the applicant will commit other offences; and whether or not release will endanger public peace and security, to name but a few.

Having been presented with the applicants personal circumstances and argument that they are suitable candidates for bail, on one hand, and the respondent's grounds that the applicants are not suitable candidates for bail, it remains for the court to apply the factors to the applicants.

I propose to start with the aspect of likelihood to interfere with witnesses and investigations first.

The allegations are said to have occurred at a shopping centre in a neighbourhood where all the applicants reside, and, obviously, even if some passers-by and outsiders had come to attend an MDC-T rally some of the witnesses would be members of the local community. It would be stretching one's imagination too far to point out that all the witnesses are not known to the applicants because there is no indication that villagers had, prior, been told not to visit the shopping centre.

Given the applicant's leadership position in their political party, the State's fear that they can exert influence on witnesses is not baseless but real.

Given the nature of the charges the applicants are facing, public violence and murder by a group, the time the State has taken to investigate cannot be said to be unreasonable moreso given that there are other accused persons who are said to be still at large.

Paragraph 7.2 of the respondent's response talks of investigating likely to be completed by 16 June 2012 thus opening other avenues to the applicants.

As it stands now, the likelihood of interference with witnesses and investigating is high.

The charges that the applicants are facing, and the manner in which the offences are alleged to have been committed, denotes the seriousness of the offences.

The court is alive to the fact that seriousness, on its own, is not reason for denying bail for the obvious reason the applicants/accused are innocent till proven guilty; but, as correctly observed by the respondent's counsel, that, when viewed in conjunction with other facts, like strength of the State case; that is that all the applicants were at or in the vicinity of the scene of crime and were identified by witnesses neighbours, then, the natural fears that attach to the possible sentence in the event of conviction can induce or tempt the applicants into absconding.

The court is alive to the personal circumstances of all the applicants which are basically what was submitted in writing in the applicants Bail Statement.

They are Zimbabweans of fixed abode, but, the circumstances of this case, that is, the nature of charges, likelihood of abscondment, the likelihood of interference with witnesses, render imposition of bail conditions indecisive.

Further, in considering factors highlighted earlier in section 117(b) of the Criminal Procedure and Evidence Act, the circumstances of the present case are the exceptional circumstances envisaged where it would be contra interest of justice to release the applicants on bail where such is likely to disturb public order and security and undermine public peace.

The allegations, as observed by counsel for the respondent, were politically-motivated, such that, release of the applicants on bail, at this stage, is likely to cause public outrage and thus undermine public order and security while at the same time undermining the objectives or proper functioning of the criminal justice system including the bail system (section 117(iv) of the Criminal Procedure and Evidence Act).

There is no basis for treating the seven applicants differently in the present case.

The principles governing the application for bail pending trial, though bail should be allowed in the interest of the individual liberty unless it is not in the interests of justice, when applied in relation to the applicants, clearly shows that admission of the applicants to bail would jeopardise and not safeguard the proper administration of justice (given the likelihood of interference with witnesses and peace, threat to public security and order, and the likelihood of absondment).

The application for bail pending trial is accordingly dismissed in respect of all the applicants.

MWAYERA J: The seven applicants approached the court on/with an application for bail pending trial.

The applicants are facing one count of public violence as defined in s36(1) of the Criminal Law (Codification & Reform) Act [Cap 9:23] and one count of murder as defined in s47 of the same Act.

It is alleged that on 26 May 2012 the applicants who are Zanu PF supporters acting with common purposes teamed up with other five Zanu PF supporters and being armed with logs and stones went and attacked MDC T party supporters who were attending a police sanctioned rally thus disturbing the peace and proceedings and that on the same day the applicants and others teamed up and assaulted Cephas Maguru with blunt objects resulting in his death.

The respondent opposed the application for bail pending trial.

Mr Warara for the applicants submitted that all the applicants were suitable candidates for bail. In written submissions he outlined the personal circumstances of each of the applicants and pointed out that they all voluntarily went to the police station upon being advised to attend.

The applicants' counsel submitted orally that the State case was weak as no one had identified the applicants and that they were just implicated since they hold positions of authority in the local district Zanu PF structures.

He further presented that the applicants would not interfere with the witnesses in any manner because they did not know the witnesses.

He argued that the applicants were suitable candidates for bail since there was nothing to induce or tempt them to abscond faced with a weak State case.

Mr Chimbari for the respondent buttressed his written submissions in opposition orally.

He highlighted that the State case is strong given that the applicants were positively identified at the scene by the complainants in the public violence and that there was no question of mistaken identity since this was in broad day light and the complainants and the applicants stay in the same neighbourhood.

He argued that the likelihood of interference with witnesses and investigations was high given the influential positions the applicants held.

These factors coupled with the nature of allegations were taken as likely to induce the spirit of abscondment.

The respondent's counsel further argued that the applicants should not be granted bail as this would cause public outrage.

It was apparent from submissions by both counsel that they were relying on provision of s116 and 117 of the Criminal Procedure & Evidence Act [Cap 9:07].

The criminal hallmark that the accused is presumed innocent till proven guilty is clearly spelt out from the wording of s117 of the CP & Evidence Act.

Section 117(1) reads:

“Subject to this section and s23, a person who is in custody in respect of any offence shall be entitled to be released on bail at any time after he or she had appeared in court on a charge and before sentence is imposed unless the court finds that it is in the interest of justice that he or she be detained in custody.”

The use of the word shall be entitled to bail in my view denotes that where possible the court should lean in favour of the liberty of the individual provided the interest of justice is protected by such a decision.

Section 117 clearly spells out that an accused person is entitled to bail unless the court finds that it is in the interest of justice that an accused person should be detained in custody. The detention can be in the interest of justice if one or more factors mentioned in s117(2)(a) and (b) is or are established against him.

Section 117(2)(a)–(b) reads:

“(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 on offences referred to in the first schedule; or

(ii) Not stand his or her trial or appear or 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(a)–(e) goes on to outline some factors among others which the court may take into account on determining whether or not the applicant is a suitable candidate for bail.

If one or more factors alluded to in s117(2) are established then the applicant ought not to be released on bail, if on the other hand such factors are not established then the applicant ought to be admitted to bail.

The court must therefore endeavour to seek to establish a balance between the interest of administration of justice and the individual liberty.

Attorney Gneral v Phiri 1987 (2) ZLR 33 REYNOLDS J Lucidity underscored that the fundamental principle governing the court's approach to applications for bail is that of upholding the interest of justice.

This requires the court, as expeditiously as possible to fulfil its function of safeguarding the liberty of the individual while at the same time protecting the interest of justice.

The questions that are to be considered are whether the applicant will stand or evade trial, whether or not the applicant will interfere with witnesses or investigations, whether or not the applicant will commit other offences and whether or not release will endanger public peace and security to name but a few.

Having been presented with the applicants' personal circumstances and argument that they are suitable candidates for bail on one hand and the respondent's grounds that the applicants are not suitable candidates for bail it remains for the court to apply the factors to the applicants.

I propose to start with the aspect of likelihood to interfere with witnesses and investigations first.

The allegations are said to have occurred at a shopping centre in a neighbourhood were all the applicants reside and obviously even if some passers-by and outsiders had come to attend an MDC T rally some of the witnesses would be members of the local community. It would be stretching one's imagination too far to point out that all the witnesses are not known to the applicants because there is no indication that villagers had prior been told not to visit the shopping centre.

Given the applicant's leadership position in their political party the State's fear that they can exert influence on witnesses is not baseless but real.

Given the nature of the charges the applicants are facing public violence and murder by a group, the time the State has taken to investigate cannot be said to be unreasonable more-so given that there are other accused persons who are said to be still at large.

Paragraph 7.2 of the respondent's response talks of investigating likely to be completed by 16 June 2012 thus opening other avenues to the applicants.

As it stands now likelihood of interference with witnesses and investigating is high.

The charges that the applicants are facing and the manner in which the offences are alleged to have been committed denotes the seriousness of the offences.

The court is alive to the fact that seriousness on its own is not reason for denying bail for the obvious reason the applicants/accused are innocent till proven guilty, but as correctly observed by the respondent's counsel that when viewed in conjunction with other facts like strength of the State case that is that all the applicants were at or in the vicinity of the scene of crime and were identified by witnesses' neighbours then the natural fears that attach to the possible sentence in the event of conviction can induce or tempt the applicants, into absconding.

The court is alive to the personal circumstances of all the applicants which are basically what was submitted in writing in the applicants bail statement.

They are Zimbabweans of fixed abode but the circumstances of this case that is the nature of charges, likelihood of abscondment, the likelihood of interference with witnesses render imposition of bail conditions indecisive.

Further in considering factors highlighted earlier in s117(b) the circumstances of the present case are the exceptional circumstances envisaged where it would be contra interest of justice to release the applicants on bail where such is likely to disturb public order and security and undermine public peace.

The allegations as observed by Mr Chimbari were politically motivated such that release of the applicants on bail at this stage is likely to cause public outrage and thus undermine public order and security while at the same time undermining the objectives or proper functioning of the criminal justice system including the bail system (s117(iv)).

There is no basis for treating the seven applicants differently in the present case.

The principles governing the application for bail pending trial though bail should be allowed in the interest of the individual liberty unless it is not in the interest of justice when applied in relation to the applicants clearly shows that admission of the applicants to bail would jeopardise and not safeguard the proper administration of justice (given the likelihood of interference with witnesses and peace, threat to public security and order and the likelihood of absondment).

The application for bail pending trial is accordingly dismissed in respect of all the applicants.




Warara & Associates, applicants' legal practitioners

Attorney General's Office, respondent's legal practitioners

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