Annie Madzima and Linah Machekanyanga v The State

In June 2017, the appellants, together with an accomplice Tendai Nyambuya (still at large), allegedly defrauded potential home seekers. Using a forged national identity document of Mirriam Chikwanda (resident in South Africa), they placed an advertisement in the Sunday Mail of 25 June 2017 purporting to sell property at 3813 Nhoro Road, Windsor Park, Ruwa. In count 1, the first complainant responded to the advertisement, met both appellants at Jameson Hotel on 2 July 2017, viewed the property, and agreed to purchase it for $19,000. On 3 July 2017, the complainant transferred $10,000 into the first appellant's Steward Bank account. The fraud was discovered when the complainant started developing the stand and was informed by the actual owner's son-in-law that the property was not for sale. In count 2, the appellants attempted to sell the same property to Clifford Nhekairo for $19,000 using the same modus operandi. This complainant became suspicious after checking with the Deeds Office, discovered anomalies, and reported the matter. The appellants were arrested on their way to collect the balance from the first complainant. They were charged with two counts of fraud under s136 of the Criminal Law (Codification and Reform) Act [Chapter 9:23] and denied bail by the magistrate's court.

• Whether the magistrate erred in refusing bail to the appellants
• Whether the interests of justice, public protection, and the appellants' right to liberty were properly balanced in the bail determination
• Whether the seriousness of the charges and likelihood of conviction justifies refusal of bail
• Whether the risk of absconding and commission of further offences warranted denial of bail

The appeal against refusal of bail was dismissed.

In bail applications, a judicial officer is not required to investigate and determine the details of evidence proving who committed the offence, as that is a matter for trial. The seriousness of fraud charges involving forged documents, significant financial loss, and sophisticated criminal schemes, combined with factors such as previous relevant convictions, accomplices at large, risk of further offences, and likelihood of absconding, can justify refusal of bail. The balance between constitutional rights to liberty, interests of justice, and public protection must be assessed, and where the latter two significantly outweigh the former due to concrete risks, bail may properly be refused.

The court observed that public resources may be required to secure attendance of appellants for trial should they abscond, and that justice must be seen to be done where a complainant who clearly knows the persons who defrauded him must trust that the justice system will protect him and others from similar plights. The court noted it would send a wrong message to release the appellants on bail in the circumstances of this case.

This case demonstrates the Zimbabwean courts' approach to bail applications in fraud cases involving sophisticated criminal schemes, forged documents, and significant financial loss to complainants. It clarifies that bail hearings are not the appropriate forum for detailed examination of evidence regarding guilt or innocence, but rather focus on factors such as likelihood of absconding, risk to public safety, and seriousness of charges. The case also illustrates how courts balance constitutional rights to liberty against public protection and the interests of justice, particularly where previous convictions exist, accomplices remain at large, and complainants have suffered significant losses.