Adrian Zvivada and Last Mhlatini and Farai Hakamera v The State

The three accused were charged with 5 counts of contravening section 89(1)(a) of the Criminal Law (Codification and Reform) Act. On 8 September 2021 at Lonekop Village, Kadoma, they allegedly jointly assaulted five complainants (Wiseman Mashizha, Patrick Tichareva, Tichaona Mutindi, Jeffrey Chisaka and Blessed Takudzwa Gore) with knives, switches, metal rods, machetes, axes and catapults after forcibly ejecting the complainants from a mine shaft. The assaults were particularly savage and brutal, with some complainants having their ears severed and sustaining stab wounds causing them to fall unconscious from excessive blood loss. All three accused persons had pending cases before the court, with some facing charges while already on bail. The Magistrates Court at Kadoma dismissed their bail applications. The accused appealed to the High Court against the refusal of bail.

• Whether the Magistrate's Court misdirected itself in finding that the appellants had a propensity to commit similar offences based on pending charges without evidence of previous convictions
• Whether the Magistrate's Court properly denied bail on the ground of protecting public safety under section 117(2)(b) read with section 117(3)(e)(v) of the Criminal Procedure and Evidence Act
• Whether the court a quo improperly descended into the arena by denying bail on grounds not pleaded by the prosecution
• Whether the presumption of innocence and alibis raised by some appellants should have been determinative in the bail application

The appeal against the refusal of bail was dismissed. The order of the Magistrate's Court refusing bail to the three appellants was upheld.

The binding legal principles established are: (1) A finding of propensity to commit similar offences cannot be sustained merely on the basis of pending charges or alleged commission of crimes while on bail, without evidence of previous convictions for similar offences; (2) It is irregular for a court to deny bail on grounds that the prosecution did not rely upon in opposing bail, even if the evidence would support such a finding; (3) Public safety concerns under section 117(2)(b) read with section 117(3)(e)(v) of the Criminal Procedure and Evidence Act can properly justify refusal of bail where the nature and circumstances of the alleged offence (particularly involving extreme violence, use of lethal weapons, and gang-like activity) demonstrate an immediate danger to the public; (4) Where a bail application is properly refused on one valid ground, an appeal will not succeed merely because another ground for refusal was found to be irregular or unsustainable; (5) Bail courts are not trial courts and need not make findings on the merits of defences such as alibi raised by applicants in bail proceedings.

The court made several non-binding observations: (1) The court noted that the facts of the case were "very sad" with ears of three complainants cut off and lethal weapons used, describing it as "more of a gang warfare"; (2) The court observed that the alleged commission of crimes while on bail pending trial, though not constituting propensity in the strict legal sense, could constitute "a different ground for denying bail"; (3) The court commented that the fact that the Magistrate did not comment adversely on the prosecution witness's evidence that the alibis had been investigated and found to be false implied that the defence did not weigh with the court in exercising its discretion; (4) The court emphasized the need for courts to restore public confidence in the justice delivery system, suggesting this is a relevant consideration in bail applications involving serious violent crime.

This case is significant in Zimbabwean criminal procedure as it clarifies important principles regarding bail applications: (1) It distinguishes between propensity to commit crimes (which requires evidence of previous convictions for similar offences) and the separate ground of commission of offences while on bail; (2) It confirms that courts should not deny bail on grounds not pleaded by the prosecution, as this constitutes descending into the arena; (3) It reinforces that the protection of public safety, particularly in cases involving extreme violence and use of lethal weapons, can be a proper ground for denying bail under section 117(2)(b) read with section 117(3)(e)(v) of the Criminal Procedure and Evidence Act; (4) It clarifies that bail courts need not determine the merits of defences such as alibi, as these are matters for trial. The case demonstrates that even where one ground for refusing bail is found to be irregular, an appeal will fail if another proper ground supports the refusal.