Ben Gaha and Prince Austin Duwa and Tashididi Alifi and Samuel Butao v The State

The four applicants were arrested on 3 June 2016 and charged with three counts of attempted murder as defined in section 189 read with section 47 of the Criminal Law (Codification and Reform) Act. The offences were committed in the course of attempting to commit acts of robbery. The three counts of attempted murder were committed within a period of one week using the same modus operandi. According to the Form 242, there were witnesses who saw the applicants when they committed the offences. Forensic evidence revealed that the same firearm was used in the commission of all three counts. The second applicant allegedly acquired the firearm from one Sylvia Shamhuyarira at Acturus Mine. Two alleged accomplices were still at large. The applicants applied for bail pending trial, making bald denials and claiming they were not at the three scenes of crime when the offences were committed.

• Whether there were compelling reasons to deny the applicants bail under section 50 of the Constitution of Zimbabwe 2013
• Whether the applicants, if released on bail, would endanger the safety of the public or commit further offences
• Whether the applicants would stand trial if released on bail
• Whether the applicants would attempt to influence or intimidate witnesses or destroy evidence
• Whether the applicants' release would undermine or jeopardise the objectives or proper functioning of the criminal justice system

The bail application was dismissed.

Where an applicant is charged with a serious offence (such as attempted murder committed during robbery) and there is evidence sufficiently connecting the applicant to the offence, there are compelling reasons to deny bail under section 50 of the Constitution. The seriousness of the offence combined with sufficient evidence linking the accused creates a likelihood of absconding. Where multiple serious offences are committed within a short period using the same modus operandi, this demonstrates a propensity to commit further offences, which constitutes a compelling reason to deny bail. Where accomplices remain at large and the applicants fail to explain their connections to each other or to the accomplices, this supports a finding that release would endanger public safety and undermine the criminal justice system. Mere bald denials without explanation are insufficient to rebut evidence connecting accused persons to serious offences for purposes of a bail application.

The court observed that the risk of interference with witnesses exists when applicants have been alerted through the bail application itself to the place of residence of witnesses. The court also noted that the manner in which the three counts were committed within a period of a week shows that the offences were well planned and executed, indicating criminal sophistication.

This case demonstrates the application of the constitutional right to bail under section 50 of the Constitution of Zimbabwe 2013 and the factors a court must consider under section 117 of the Criminal Procedure and Evidence Act when determining whether compelling reasons exist to deny bail. It illustrates how courts balance the constitutional presumption in favour of bail against considerations of public safety, likelihood of absconding, witness interference, and the integrity of the criminal justice system, particularly in cases involving serious, well-planned violent crimes with strong evidence against the accused.