Cecil Hondo Madondo v The State

The applicant, a 60-year-old insolvency practitioner, was appointed by the High Court as a corporate rescue practitioner for Redwing Mining Company (Pvt) Ltd under case No HC99/19. He appeared before the Magistrate at Harare on 5 February 2021 on initial remand, facing a charge of fraud as defined in section 136 of the Criminal Law (Codification and Reform) Act. It was alleged that between 15 October and 2 December 2020, the applicant entered into joint venture and tribute agreements with three different companies (Porbadek Investments, Prime Royal, and Betterbrands Mining) for mining operations at Redwing's claims. Probadek Investments alleged fraud, claiming it was misrepresented that it had exclusive mining rights. Probadek paid US$60,000 in corporate rescue fees to the applicant's company Tudor House Consultants and made capital expenditure of US$200,000. The applicant applied for bail, which was opposed by the State on grounds of risk of abscondment and interference with witnesses. The Magistrate dismissed the abscondment contention but refused bail on the ground that the applicant was likely to interfere with witnesses due to his relationship with them as their superior at the workplace.

• Whether the Magistrate misdirected himself in law or fact in refusing bail on the ground that the applicant was likely to interfere with witnesses
• Whether there was sufficient factual basis to establish that the applicant would interfere with witnesses
• What standard of proof is required to establish grounds for refusing bail under section 117(2)(a)(iii) of the Criminal Procedure and Evidence Act

The appeal against refusal of bail succeeded. The order of the Magistrate of 8 February 2021 dismissing the application for bail was set aside. The applicant was granted bail on the following conditions: (a) deposit RTGS $100,000 with the Clerk of Court Harare; (b) continue to reside at No 1446 Beestone Road, Shawasha Hills, Harare; (c) report on Mondays, Wednesdays and Fridays at Zimbabwe Republic Police Highlands between 8:00am and 4:00pm; (d) not interfere with witnesses; (e) barred from visiting Redwing Mine, Penhalonga, Mutare until the matter is finalized.

To refuse bail on the ground of likelihood of interference with witnesses under section 117(2)(a)(iii) of the Criminal Procedure and Evidence Act, the ground must be established on a balance of probabilities with some reasonable factual basis, not merely alleged. The mere fact that witnesses are subordinates of an accused in the workplace does not, on its own, establish the likelihood that the accused will interfere with witnesses. The State must point to concrete evidence suggesting propensity to interfere with witnesses, not rely on speculation or mere workplace relationships. The court must also have regard to the provisions of section 117(3) when determining the adequacy or establishment of grounds for refusing bail.

The court made observations distinguishing between the words "will" and "may" in the context of likelihood of interference, noting that "will" connotes a more definite event with no doubt it will happen, whereas "may" connotes a doubtful eventuality. The court also observed that in cases involving written instruments already in police possession, it is difficult to appreciate what nature of interference could possibly occur. The court commented on the appellant's professional credentials as an accountant appointed by the High Court as a corporate rescue practitioner, his fixed abode, family circumstances, and economic and social interests as factors supporting bail, though these were not strictly necessary to the main legal determination.

This case is significant in Zimbabwean criminal procedure law as it clarifies the evidentiary standard required to refuse bail on grounds of potential witness interference. It establishes that mere allegations or suppositions based on workplace relationships are insufficient - there must be concrete factual evidence to establish on a balance of probabilities that an accused will interfere with witnesses. The judgment reinforces the principle that liberty is the norm and detention the exception, and that courts must guard against refusing bail on speculative or inadequately proven grounds. It also emphasizes the importance of considering section 117(3) factors when determining bail applications.