Anesu Mafokosho v The State

On 24 December 2018, the applicant and the deceased, who were estranged husband and wife, went to shop for clothing items for their 3-year-old daughter. Upon returning home, they proceeded to their bedroom where a misunderstanding ensued. The applicant allegedly picked up an axe from under the bed and struck the deceased five times on the back and neck. After the alleged attack, the applicant closed the door and fled the scene. She notified her sister by text message about what she had done. A police report was made and after follow-ups, the applicant was arrested on 4 January 2019. She had been residing in the forest after fleeing, and when police came to apprehend her, she had to be removed from under a bed. The applicant was charged with murder as defined in section 47(1)(a) or (b) of the Criminal Law (Codification and Reform) Act [Chapter 9:23].

• Whether the applicant should be granted bail pending trial
• Whether the interests of administration of justice would be prejudiced by granting bail
• Whether there were compelling reasons justifying continued detention of the applicant
• How to balance the right to personal liberty under section 49 of the Constitution against the interests of administration of justice
• Whether the applicant's propensity to abscond justified refusal of bail

The bail application was dismissed.

In bail applications, courts must balance the constitutional right to personal liberty (section 49 of the Constitution) and the presumption of innocence against the interests of administration of justice. An applicant has a right to bail unless there are compelling reasons justifying continued detention. When assessing bail applications, courts must consider circumstances cumulatively, including: the nature and seriousness of the allegations, the manner in which the offence was allegedly committed, the strength of the state's case, the likely sentence upon conviction, the applicant's personal circumstances, the nature of the defence, and critically, the applicant's conduct after the alleged commission of the offence. Where an applicant demonstrates a propensity to abscond (through flight from the scene, hiding from police, and evading arrest), and this is considered together with the seriousness of the charge, the strength of the state's case, and the likely lengthy sentence, the risk of absconding is real and constitutes compelling grounds for refusing bail. The likelihood of a lengthy imprisonment sentence can act as an inducement to abscond, particularly where the accused has already demonstrated flight behavior. Admission to bail in such circumstances would prejudice the interests of administration of justice and undermine public confidence in the criminal justice system.

The court made several non-binding observations: (1) The court acknowledged that the seriousness of a charge on its own cannot be ground for denial of bail, citing S v Hussey 1991 (2) ZLR 187; (2) The court noted that courts should always lean in favor of granting bail provided that the interests of justice are not prejudiced; (3) The court observed that the manner in which the murder was allegedly committed connoted premeditation given that the lethal weapon was concealed under the bed; (4) The court commented that the circumstances of the alleged murder depicted a well-orchestrated offence; (5) The court noted that the nature and circumstances under which the offence was committed induced a sense of shock and outrage in the community; (6) The court observed that there appeared to be no motivation for the applicant to stand trial given the line of defence sought to be relied on (mental instability contrary to medical opinion).

This case illustrates the application of the constitutional right to liberty under section 49 of the Constitution in the context of bail applications, particularly in serious criminal matters. It demonstrates how Zimbabwean courts balance individual rights against the interests of administration of justice. The judgment reinforces that while there is a presumption in favor of granting bail and an accused is presumed innocent, compelling circumstances - particularly evidence of propensity to abscond - can justify continued detention. The case is significant for its analysis of multiple cumulative factors in bail decisions, including the nature of the offence, manner of commission, post-offence conduct, strength of the state's case, likely sentence, and the specific conduct demonstrating flight risk. It also emphasizes that admission to bail in certain circumstances could undermine public confidence in the criminal justice system.