Chemunorwa Chikosha v The State

On 1 October 2021 near ZRP Mzilikazi, Bulawayo, the applicant and his co-accused were walking along the pavement heading towards Makokoba bus terminus. The first accused was carrying a satchel. When police stopped them, the first accused dropped the satchel and fled but was caught by police. Upon searching the satchel, police found ivory. After investigations, police determined that the applicant co-owned the ivory with the first accused. The applicant was charged with unlawful possession of raw ivory in contravention of Section 82(1) of the Parks and Wildlife Act. The applicant applied for bail pending trial. He claimed to be a family man with three children of fixed abode. The State opposed the application on the grounds that applicant was likely to abscond and that he had a pending case at Harare Magistrates Court (CRB 1034/21) with a warrant of arrest for absconding. The applicant claimed during oral submissions that the Harare matter was finalized, which the court found to be untrue.

• Whether the applicant was a suitable candidate for bail pending trial
• Whether there were compelling reasons justifying the applicant's continued detention
• Whether the applicant was likely to abscond if granted bail
• The duty of an applicant in a bail application to disclose all material facts to the court

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

An applicant in a bail application has a duty to disclose all material facts to the court, and the court is less likely to exercise its discretion in favor of an applicant who seeks to conceal vital information. Where an applicant has a warrant of arrest for absconding in a pending similar matter, this demonstrates a propensity to abscond and constitutes a compelling reason to refuse bail under section 50 of the Constitution and section 117(2)(a)(ii) of the Criminal Procedure and Evidence Act, as it establishes that the accused is likely not to stand trial if released on bail.

The court observed that it is desirable for an accused person to lay before the court in a bail application what his defense will be at trial, as this has a bearing on the assurances that he will indeed stand trial (citing S v Ndlovu 2001(2) ZLR 26). The court also noted that the seriousness of an offence on its own does not lead to a conclusion that an accused person is unlikely to stand trial. The court remarked that the administration of justice would be compromised if the applicant were granted bail as he may be tempted to flee to avoid trial.

This case reinforces important principles in Zimbabwean bail jurisprudence regarding: (1) the duty of full and frank disclosure by bail applicants, particularly concerning pending cases and warrants of arrest; (2) the assessment of flight risk based on an applicant's history of absconding rather than solely on the seriousness of the charge; (3) the court's discretion to refuse bail where there are compelling reasons, including likelihood of absconding; and (4) the importance of applicants outlining their intended defense when applying for bail. The case demonstrates judicial intolerance for applicants who misrepresent material facts to the court in bail applications.