Chirairo Chiza v The State

The applicant, a 36-year-old unemployed man, was charged with three counts: (1) On 10 May 2012 at 0100 hours, applicant and two accomplices (Shanganai Ndlovu and Sonboy Nkululeko, still at large) allegedly attacked security guards at Botswana Power Corporation premises, assaulted them, stole a cellphone, tied up the guards, and stole an Isuzu RTF800 truck; (2) On the same day at 1230 hours, applicant allegedly assaulted a police officer who was effecting his arrest after he was caught at a roadblock; (3) Driving without a valid driver's licence. When arrested, applicant was found in possession of an agreement of sale for the stolen vehicle, listing himself as buyer and his two at-large accomplices as sellers. The application for bail was filed on 24 May 2012, with the state filing notice of opposition on 12 June 2012, though the state later reversed its position and conceded to bail being granted.

• Whether the applicant should be granted bail despite facing serious charges
• Whether the fact that accomplices are still at large is a ground for refusing bail
• Whether assaulting a police officer during arrest demonstrates such disdain for the rule of law as to warrant refusal of bail
• Whether the constitutional right to bail should be granted where there is a likelihood the accused will not stand trial

The bail application was dismissed.

The binding legal principle is that bail, while a constitutional right based on the presumption of innocence, is not absolute but subjective. Bail should be refused where: (1) the accused is unlikely to stand trial if released; (2) the accused has demonstrated brazen disdain for the rule of law by assaulting police officers during lawful arrest; (3) accomplices remain at large; and (4) the circumstances of the case, including possession of suspicious documentation relating to stolen property and the seriousness of the offence, indicate a high risk of absconding. The court retains final decision-making power in bail matters notwithstanding the state's position.

The court made observations regarding the state's conduct in reversing its position on bail opposition, noting that while the state has every right to shift its position, such shifts should be based on solid legal grounds. The court expressed difficulty in understanding the state's reasoning in conceding to bail under the circumstances presented, particularly given that the supposed sellers of the stolen vehicle (the accomplices) were still at large and the vehicle had been established as stolen. The court also noted that while the state's view on bail matters is paramount, this does not eliminate the court's power to make independent determinations.

This case reinforces the principle that while bail is a constitutional right in Zimbabwe, it is not absolute but subject to judicial discretion. The case demonstrates that courts will refuse bail where there are compelling grounds suggesting the accused will not stand trial, even where the state concedes to bail being granted. It establishes that violent resistance to lawful arrest, particularly assault on police officers, constitutes evidence of disdain for the rule of law that militates against the granting of bail. The case also confirms that the court retains ultimate discretion in bail matters despite the state's position.