Charles Thomas and Others v The State

The three applicants were executive members of the Mthwakazi Liberation Front (MLF), a political party launched on 28 December 2010 in Bulawayo. The MLF's stated objective was to create a separate state called the Republic of Mthwakazi through negotiations and a referendum. On 1 March 2011, the MLF held an executive meeting at the 3rd applicant's office in Bulawayo. The 2nd and 3rd applicants attended this meeting where minutes were recorded. The 1st applicant did not attend the meeting but was alleged to be "in the vicinity" performing security duties. The applicants were arrested and charged with treason under section 20(1)(b) of the Criminal Law (Codification and Reform) Act. The state alleged they conspired to influence people to rise and demonstrate against the government to create a separate state. The evidence consisted of MLF fliers and calendars found in the applicants' possession, and minutes of the 1 March 2011 meeting. The fliers contained messages calling on people to rise up like those in Ethiopia, Sudan, Egypt and Tunisia, and appealed to members of the Zimbabwe Armed Forces to defect. The 1st applicant was HIV positive, married with three children, and unemployed. The 2nd applicant was a businessman, war veteran (ZIPRA), married with four children. The 3rd applicant was a businessman, married with four children, and had previously participated in presidential elections. All three held passports.

• Whether the applicants should be granted bail pending trial on a charge of treason
• Whether the seriousness of the treason charge alone justifies refusal of bail
• Whether the applicants posed a risk of absconding
• Whether the applicants were likely to interfere with state witnesses or evidence
• Whether the applicants were likely to continue pursuing their alleged treasonous activities if granted bail
• The strength of the state's case as a factor in bail determination

All three applicants were admitted to bail subject to the following conditions: (1) Each applicant to deposit US$2,000 with the Registrar of the High Court, Bulawayo; (2)-(4) Each applicant to reside at their specified residential addresses until finalization; (5) Each applicant to report at Bulawayo Central Police CID Law and Order three times weekly (Mondays, Wednesdays, Fridays) between 6am-6pm; (6) Surrender of passports to the Registrar; (7) No interference with state witnesses or evidence; (8) Not to leave 40 kilometres radius of Bulawayo Main Post Office without written leave of a magistrate; (9) Not to attend political gatherings.

The binding legal principles established are: (1) In bail applications, the primary question is whether the applicant will stand trial or abscond, and whether they will interfere with the fairness of the trial by intimidating witnesses or tampering with evidence; (2) The approach to bail applications requires striking a balance between society's interest in ensuring the applicant stands trial without interference with justice, and the liberty of the accused who is presumed innocent pending trial; (3) While the seriousness of the offence (such as treason) is a relevant factor and may create an incentive to abscond due to expectation of severe punishment, this must be balanced against the apparent strength or weakness of the state's case; (4) Alleged propensity to commit similar offences is not in itself a valid reason for denying bail, as such concerns can be addressed through appropriate bail conditions; (5) Unsubstantiated and bald allegations of likely interference with witnesses or investigations, without specific evidence showing how such interference could occur, are insufficient grounds to refuse bail; (6) The strength of the state's case is a relevant factor in bail determination - weak evidence may favor granting bail even in serious cases.

The court made several non-binding observations: (1) Whether the contents of the MLF fliers were treasonous is a matter for the trial court to decide, not the bail court; (2) The court noted that the fliers did not expressly advocate for removal of the government by unconstitutional means, though the state had paraphrased and interpreted them as such; (3) The court observed that there were no objective facts showing that any member of the public took the fliers or calendars seriously; (4) The court commented that the bail conditions imposed would "unfortunately limit their aspirations in the political arena" but were necessary given the serious allegations and the applicants' previous brushes with the law; (5) The court noted in passing the 1st applicant's HIV-positive status as part of his personal circumstances, though this did not form part of the legal reasoning.

This case is significant in Zimbabwean bail jurisprudence as it demonstrates the application of bail principles in politically sensitive cases involving treason charges. The judgment emphasizes that even in cases involving serious offences like treason, bail should not be automatically refused. The court affirmed that the strength of the state's case is a relevant factor in bail determination, and that weak evidence may tilt the balance in favor of granting bail. The case also illustrates how courts can balance state security concerns with the presumption of innocence by imposing stringent bail conditions rather than refusing bail entirely. It provides guidance on how to assess allegations of intent to commit treason based on political activities and documents, requiring evidence of express advocacy for unconstitutional action rather than accepting mere interpretation or paraphrasing. The judgment reinforces the principle from S v Tsvangirai that fears of reoffending or continuing allegedly criminal political activities can be managed through appropriate bail conditions, including restrictions on political activities and movement.