Brighton Masiyambiri and Brian Muwati v The State

On 25 November 2017, the two applicants stopped the complainant who was driving his Mazda X3 motor vehicle (registration number ADN 8937). The first applicant was known to the complainant. When the complainant stopped the car, the applicants launched an attack on him using fists on his face, dragged him out of the motor vehicle, and sped off with it. The applicants abandoned the car after crashing it and took away the complainant's property, most of which was not recovered. The first applicant disappeared and was only arrested on 4 January 2018 (approximately 1.5 months later) after his brother surrendered him to the police. After his arrest, the first applicant divulged the second applicant's identity and he was immediately arrested. Both applicants were charged with contravening section 126(1) of the Criminal Law (Codification and Reform) Act (Chapter 9:23) - robbery. They were remanded in custody and applied for bail.

• Whether the applicants should be granted bail despite being charged with robbery, an offence specified in Part I of the Third Schedule
• Whether the applicants discharged the onus of showing on a balance of probabilities that it is in the interests of justice for them to be released on bail
• Whether there was a likelihood that the accused would not stand trial or appear to receive sentence if released on bail
• The application of section 117 of the Criminal Procedure and Evidence Act and section 115C (introduced by the Criminal Procedure and Evidence Amendment No. 2 of 2016)
• The balancing of the constitutional presumption of innocence and right to bail against the interests of justice

The bail application was dismissed.

Where an accused person is charged with an offence specified in Part I of the Third Schedule (such as robbery), section 115C of the Criminal Procedure and Evidence Act places the burden on the accused to show, on a balance of probabilities, that it is in the interests of justice for them to be released on bail. In determining bail applications, courts must consider: (1) the nature and gravity of the offence and the corresponding sentence, as more severe potential sentences create greater incentive to abscond; (2) the strength of the state's prima facie case, as a strong prosecution case increases the incentive to flee; (3) prior conduct demonstrating flight risk, such as absconding after committing the offence; and (4) ordinary human motives and fears that sway human nature when assessing the risk of abscondment. An accused who has previously absconded and was only arrested after being surrendered by others poses a significant flight risk that militates against the grant of bail.

The court observed that robbery is akin to hijacking and attracts a sentence of imprisonment of up to fifty years or life imprisonment depending on whether it is committed under aggravating circumstances or not. The court noted that it is trite law that in bail applications, the court ought to judiciously strike a balance between the ever conflicting interests of the liberty of the individual on one hand and the interests of the administration of justice on the other, with such an approach being desirable in view of the presumption of innocence constituting the heart of the criminal justice system. The court commented that the legal practitioner's explanation that the applicants simply ended up with the car keys while drinking with the complainant was "somewhat incredible."

This case demonstrates the application of Zimbabwe's amended bail provisions under section 115C (introduced by the Criminal Procedure and Evidence Amendment No. 2 of 2016), which places the burden of proof on accused persons charged with offences listed in Part I of the Third Schedule (including robbery) to show on a balance of probabilities that it is in the interests of justice for them to be released on bail. The case illustrates how courts assess the risk of abscondment based on the severity of potential sentence, strength of the state's case, and the accused's prior conduct (particularly absconding before arrest). It affirms that where an accused has demonstrated flight risk through previous absconding, courts will be reluctant to grant bail despite constitutional guarantees.