Concillia Chinanzvavana and 5 Others v The State

The six applicants were taken to the magistrates' court on 24 December 2008. They challenged their appearance in court before remand proceedings were conducted, arguing they stood released by virtue of an order issued by Justice Hungwe on 11 November 2008 in HC 6420/08. On 25 December 2008, Justice Omerjee granted an order enforcing Hungwe J's earlier order. The State appealed against Omerjee J's order. Meanwhile, the State was pressing for the applicants to be placed on formal remand, but the applicants resisted. In these circumstances, the applicants applied to the High Court for bail pending trial. The applicants had appeared in court but had not been formally placed on remand - the charges had not been read out to them in court, though they had been informed by police of charges relating to section 24(a) of the Criminal Law (Codification and Reform) Act or alternatively section 187(1)(b) read with section 24(a) of the same Act.

• At what point can an application for bail pending trial be properly made before the High Court?
• Whether an application for bail pending trial is properly before the court when remand proceedings against the applicants have not yet been conducted
• What constitutes 'appearing in court on a charge' for purposes of sections 116 and 117 of the Criminal Procedure and Evidence Act?
• Whether formal remand is a prerequisite to applying for bail pending trial

The application for bail pending trial was dismissed on the preliminary point that it was not properly before the court, as the applicants had not been formally placed on remand.

For an application for bail pending trial to be competent under sections 116 and 117 of the Criminal Procedure and Evidence Act, an accused must first have 'appeared in court on a charge', which requires: (1) the presiding judicial officer being apprised of the charges; (2) the accused being informed in court of why he/she has been brought to court; and (3) the allegations being formally put to the accused before the judicial officer. Mere physical presence in a courtroom or notification by police of charges does not constitute 'appearing in court on a charge'. Furthermore, before bail can be considered, the State must first establish reasonable suspicion that the accused committed or was about to commit a criminal offence, as required by section 13 of the Constitution. The initial remand process is a prerequisite to any bail application, and granting or considering bail without first ascertaining legal justification for remand would be incompetent.

The court noted that the cases of In re Mlambo 1991(2) ZLR 339 (SC) and Shumba v Attorney-General 1997(1) 589 (S), while dealing with the interpretation of 'charged', were decided in the context of section 18(2) of the Constitution concerning reasonableness of delay in prosecution, which is a different context from determining when one has 'appeared in court on a charge' for bail application purposes. The court observed that sections 116, 117, and 117A of the Criminal Procedure and Evidence Act must be read in light of the constitutional provisions in section 13 of the Constitution. The court referenced its own earlier decision in J M Mukoko v The State HH24/09, noting that virtually all issues in the present case were the same as in that case.

This case establishes important principles regarding the procedural prerequisites for bail applications in Zimbabwe. It clarifies that formal remand proceedings must be conducted before an accused can properly apply for bail pending trial. The judgment reinforces constitutional protections by requiring that before remand (and consequently before bail can be considered), the State must demonstrate reasonable suspicion of criminal conduct as required by section 13 of the Constitution. It also distinguishes between the constitutional interpretation of 'charged' for delay purposes and 'appearing in court on a charge' for bail application purposes under the Criminal Procedure and Evidence Act.