The applicant was arrested on 2 September 2020 after being shot during a foiled robbery attempt in Borrowdale. He was subsequently charged with two counts of robbery committed in aggravating circumstances (armed robbery). The first count alleged that on 19 July 2019, the applicant and two accomplices committed robbery at a house in Helensvale, Harare, using firearms to threaten victims and stealing property worth US$18,500 and other items. The second count alleged that on 3 August 2020, the applicant and accomplices committed robbery at a house in Avondale, Harare, stealing US$1,800, a shotgun, laptop and other items. Upon arrest, the applicant allegedly implicated his accomplice Mbonisi Ndlovu as owner of a Norinco pistol used in the robberies. The pistol was recovered from Ndlovu, who claimed the applicant had dropped it when shot. Spent cartridges from crime scenes matched test cartridges from the recovered pistol. The applicant also had three other pending robbery cases under investigation. The applicant applied for bail before the High Court after being placed on remand by the magistrate.
Bail refused. The applicant was to remain in custody pending trial.
Where an applicant charged with a third schedule offence applies for bail, the applicant bears the onus under s 115C(2)(a)(ii) of the Criminal Procedure and Evidence Act to prove on a balance of probabilities that it is in the interests of justice to grant bail. The bail judge's function is to determine suitability for bail based on allegations made before the remand court if unchallenged, not to review the propriety of placement on remand. In assessing whether an applicant is likely to abscond, the court must consider the factors set out in s 117(3)(b), and the applicant must provide sufficient detail regarding ties to place of trial, assets, and other relevant factors to enable proper assessment. Where an applicant faces multiple pending serious charges that have not yet been brought to court, this is a material factor against granting bail, as release would undermine the criminal justice system if the applicant would be immediately re-arrested on pending charges. For serious offences carrying mandatory custodial sentences with no option of a fine, the nature and gravity of the likely penalty heightens the risk of abscondment.
The court observed that it is the legislature, not the court, that determines the seriousness of offences through the penalties prescribed. Section 126 of the Criminal Law (Codification and Reform) Act provides that robbery committed in aggravating circumstances is punishable by imprisonment, reflecting legislative intent as to gravity. The court also noted that an accomplice can be a competent state witness in terms of s 267 of the Criminal Procedure and Evidence Act, and it would be wrong at the bail stage to hold that an applicant has no case to answer merely because evidence comes from an accomplice. The court further observed that under s 117A(4)(b), it is permitted to receive sworn and unsworn evidence including hearsay and statements tendered by the prosecutor in bail applications. The court distinguished the case of Mbonisi Ndlovu (B 193/21) where bail was granted, noting that case related to a different robbery charge (the Vainona incident) in which the present applicant was not a co-accused, making comparison inappropriate.
This case is significant in Zimbabwean criminal procedure law as it clarifies the proper scope of bail applications versus remand proceedings. It establishes that a bail judge should not review the propriety of placement on remand where allegations were not challenged before the remand court. The judgment reinforces the principle that for third schedule offences, the applicant bears the onus to prove on a balance of probabilities that it is in the interests of justice to grant bail. It also establishes that where an applicant has multiple pending serious charges not yet brought to court, this is a relevant factor militating against bail, as releasing the applicant would undermine the criminal justice system if they would simply be re-arrested on the pending charges. The case provides guidance on the level of detail required when addressing statutory bail factors such as ties to place of trial, assets, and travel documents.