Bongani Sibanda and 11 Others v The State

On 14 January 2019, Zimbabwe experienced widespread demonstrations characterized by looting, destruction of property, and acts of hooliganism in major cities during a campaign dubbed "Shutdown Zimbabwe." The twelve applicants, all residents of Gweru, were charged with contravening section 36(1)(a) of the Criminal Law (Codification and Reform) Act (Chapter 9:23) for public violence. The state alleged that the applicants, acting in common purpose, blocked roads using logs, stones, boulders and burning tyres at various locations including Mkoba 5 turn-off road, Choppies Supermarket Complex, and Bristol Road. They were further alleged to have broken into Choppies Supermarket (Mkoba 6) and Chipo Changu Mini Market (Mkoba 10 and 14) using iron bars and looted groceries and commodities valued at over US$40,000. The applicants denied the allegations and claimed they were arrested at their respective homes on 15 January 2019 by military forces who handed them to police. They alleged harassment and asserted they were nowhere near the scenes of violence.

• Whether compelling reasons existed to deny the applicants bail pending trial
• Whether there was a real likelihood that the applicants would abscond if released on bail
• Whether the applicants posed a danger to public safety or would commit further offences if released
• Whether the interests of justice required the applicants' continued detention
• Application of section 50 of the Constitution of Zimbabwe regarding the right to bail
• Application of section 119(1) and (2) of the Criminal Procedure and Evidence Act

The bail application succeeded. All twelve applicants were granted bail in terms of the draft order.

The binding legal principles established are: (1) In bail applications, the onus rests on the state to show compelling reasons to justify continued detention; (2) In cases involving public violence, it is insufficient for the state to make general allegations that applicants may abscond or commit further offences - the allegations must be specifically linked to acts allegedly perpetrated by the applicants; (3) The state may not rely on speculation and conjecture as grounds for opposing bail; (4) The absence of credible evidence linking applicants to alleged offences, combined with applicants being of fixed abode and no cognizable indication of likelihood to abscond, constitutes grounds for granting bail; (5) The constitutional right to bail under section 50 of the Constitution must be upheld unless the state discharges its burden of proving compelling reasons for detention.

The court made observations about the unprecedented scale of the demonstrations that occurred between 14-16 January 2019, describing them as characterized by "looting of shops, destruction of property and widespread acts of hooliganism at a scale never seen before." The court noted that "for a period of four days roads into the major cities were barricaded and motorists were forced to abandon their normal routes" and that "scores of workers stayed indoors in their homes in a campaign dubbed 'Shutdown Zimbabwe'." The court also observed the allegations of harassment by military forces during arrests. Additionally, the court noted the state's submission that demonstrations were likely to continue due to an alleged "regime change agenda," though this submission was not credited as a compelling reason to deny bail.

This case is significant in Zimbabwean jurisprudence as it reinforces the constitutional right to bail under section 50 of the Constitution of Zimbabwe and establishes that even in cases involving serious public violence allegations during politically charged demonstrations, the state must present credible evidence and compelling reasons to deny bail. The judgment emphasizes that general allegations, speculation, and conjecture are insufficient grounds to oppose bail, and that specific evidence linking accused persons to alleged offences is required. The case demonstrates judicial protection of individual liberty rights even during periods of civil unrest and maintains the principle that the onus rests on the state to justify continued detention.