Clever Kafero v The State

On 13 September 2016, the applicant was observed by police officers Constables Tapiwanashe Mupfururi and Richard Nandi picking up passengers at an undesignated point along Sam Nujoma Street in Harare while driving a commuter omnibus, a Nissan Caravan with registration numbers ADS 8676. Upon observing the two police officers patrolling the area, the applicant started to drive off. He was signalled to stop but continued driving at high speed towards the police officers. He struck Constable Mupfururi with the front left side of his motor vehicle. The officer was flung onto the pavement and sustained serious head injuries and bruises all over the body. The officer was taken to Parirenyatwa hospital where he was admitted. The applicant did not stop but continued driving at high speed along Sam Nujoma Street. He subsequently abandoned the motor vehicle along Mazowe Street and advised another person to collect it from there. The applicant was arrested on 14 September 2016 and charged with attempted murder as defined in s 89 as read with s 47 of the Criminal Law (Codification and Reform) Act [Chapter 9:23].

• Whether there were compelling reasons justifying the applicant's continued detention pending trial as contemplated in s 50(1)(d) of the Constitution of Zimbabwe
• Whether the seriousness of the offence, strength of evidence, likelihood of absconding, and circumstances of the offence constituted sufficient grounds to deny bail
• Whether the applicant posed a flight risk given that he fled the scene after committing the offence

The application for admission to bail was dismissed.

The binding legal principle established is that under s 50(1)(d) of the Constitution of Zimbabwe, while the seriousness of an offence is not per se a compelling reason for denying bail, it becomes a compelling reason when considered cumulatively with other factors including: (1) the strength of evidence against the accused; (2) the likelihood of a severe penalty; (3) conduct demonstrating a likelihood to abscond (such as fleeing the scene after committing the offence); and (4) the particular circumstances of the offence. A demonstrated inclination to run away to avoid legal consequences is a strong indicator that the accused is likely to abscond if admitted to bail. These factors, when present together, constitute compelling reasons justifying continued detention pending trial.

The court made obiter observations regarding the applicant's counsel's submission that the applicant never saw or realised his motor vehicle had struck the police officer in the commotion. The court noted that this submission was "inherently unconvincing" but observed that the issue of whether the applicant indeed saw the police officer when he struck him is ultimately a matter for the trial court to determine, not the bail court. This suggests that bail courts should not make definitive findings on contested factual issues that go to the merits of the case, though they may assess the apparent strength of evidence for bail purposes.

This case is significant in Zimbabwean jurisprudence for its interpretation and application of s 50(1)(d) of the Constitution of Zimbabwe regarding the right to bail. It demonstrates how courts balance the constitutional right to liberty pending trial against compelling reasons for continued detention. The judgment clarifies that while seriousness of an offence alone is not sufficient to deny bail, when considered together with other factors such as strong evidence, likelihood of absconding (demonstrated by fleeing the scene), and potential severe penalty, these can constitute compelling reasons to refuse bail. The case is particularly relevant to bail applications involving offences against law enforcement officers and cases where the accused has demonstrated a propensity to flee.