Blessing Luzhi v The State

On 25 November 2021, a Fawcet Security cash-in-transit vehicle traveling from Bulawayo to Harare was allegedly robbed by the applicant and accomplices using firearms. US$305,290.00, three cell phones, and a CZ pistol with six rounds valued at US$450.00 were stolen. The applicant was arrested after his alleged accomplice, Bongani Mapfumo, confessed and implicated him. Upon arrest, the applicant allegedly admitted to the robbery and led police to recover cash amounting to US$18,750.00. The applicant, a businessman who runs a wholesale grocery shop at Renkini, Bulawayo, applied for bail pending trial, denying the allegations. He filed a bail statement and supporting affidavits, including two affidavits from an employee, Endevour Mavhunduse, purporting to provide an alibi. The first affidavit referred to events on 26 November 2021 (filed in error), while the second affidavit referred to 25 November 2021, claiming the applicant was at his shop on the day of the alleged robbery.

• Whether the applicant had discharged the burden of showing, on a balance of probabilities, that exceptional circumstances exist which in the interests of justice permit his release on bail in terms of section 115C(2)(a)(ii) of the Criminal Procedure and Evidence Act [Chapter 9:07]
• Whether the applicant constitutes a flight risk given the seriousness of the charge and the strength of the prima facie case against him
• Whether the applicant's release on bail would undermine the proper functioning of the criminal justice system
• The relevance and weight to be given to the strength of the State's prima facie case in bail applications

The application for bail was dismissed. The applicant was ordered to remain in custody pending trial.

Where an accused is charged with robbery involving the use of a firearm (an offence under Part 1 of the Third Schedule to the Criminal Procedure and Evidence Act), the accused bears the onus of proving on a balance of probabilities that it is in the interests of justice that he or she be released on bail. In determining whether it is in the interests of justice to grant bail, the court must consider all relevant factors holistically, including: (1) the strength of the State's prima facie case against the accused; (2) the seriousness of the offence and the likely penalty upon conviction; (3) whether the accused is a flight risk; and (4) whether the release of the accused would undermine the proper functioning of the criminal justice system. The strength of the State's prima facie case, while not all-decisive, is a relevant factor that must be considered together with other factors. Where there is a strong prima facie case, a serious offence is charged involving use of firearms, and the likely penalty upon conviction is a lengthy custodial sentence, the cumulative effect creates a real temptation for the accused to abscond, justifying refusal of bail.

The court made important observations regarding the role of legal practitioners in bail applications, reminding counsel that they are not mere agents of their clients but officers of the court whose duty is to ensure that the applicant gets a fair hearing and to ensure the efficient and fair administration of justice. The court took a dim view of the attempt to mislead the court through contradictory alibi affidavits. The court also noted that in evaluating the relative strength of the State's case in a bail application, a court must caution itself against making a provisional finding of guilt and turning the hearing into a dress rehearsal for the trial, citing S v Viljoen 2002 (2) SACR 550 (SCA). The court observed that the seriousness of an offence, standing alone, cannot be a ground to refuse bail, as the presumption of innocence operates in favour of the accused regardless of the seriousness of the offence. There must be something more than the mere seriousness of the offence for the court to refuse bail.

This case illustrates the application of section 115C(2)(a)(ii) of the Criminal Procedure and Evidence Act [Chapter 9:07] in Zimbabwe, which places a heightened burden on accused persons charged with robbery involving firearms to demonstrate that it is in the interests of justice for them to be released on bail. The case demonstrates the court's consideration of multiple factors in bail applications for serious offences, including the strength of the prima facie case, the likelihood of flight, the seriousness of the offence, and the potential impact on the criminal justice system. The judgment also reinforces the court's duty to scrutinize evidence presented in bail applications and to take a dim view of attempts to mislead the court. It emphasizes that counsel's duty as officers of the court extends beyond being mere agents of their clients to ensuring fair administration of justice.