Davison Majari v The State

The appellant was charged with 5 counts of theft from motor vehicles, allegedly committed with three others, two of whom remained at large. The modus operandi involved breaking into complainants' motor vehicles by smashing door window glasses to steal property such as laptops and mobile phones. On 1 July 2021, the appellant and co-accused allegedly broke into a Nissan Hard Body at a Total Service Station, smashing the rear right door window glass and stealing an HP laptop, charger, identity document and headphones. Police investigations led to the recovery of the stolen laptop and a charcoal grey Toyota Hilux D4D getaway vehicle at the appellant's residence at 8250 Glen Norah C, Harare. The appellant was placed on remand on 9 July 2021 and subsequently applied for bail pending trial, which was refused by the Magistrate's Court. The appellant appealed this refusal.

• Whether the Magistrate's Court erred in refusing bail on the grounds that the seriousness of the offence alone would induce the appellant to abscond
• Whether the court a quo properly considered the risk of absconding based on the available evidence linking the appellant to the offences
• Whether the appellant constituted a flight risk warranting refusal of bail

The appeal against the refusal of bail was dismissed.

When determining whether to grant bail, a court may properly consider the strength of evidence against an accused person in conjunction with the seriousness of the offence and the likely sentence upon conviction in assessing whether the accused constitutes a flight risk. Where compelling evidence links the accused to serious offences that would likely attract custodial sentences, the court is entitled to find that the accused poses a flight risk warranting refusal of bail. This does not constitute an impermissible reliance on seriousness of offence alone, but rather a proper holistic assessment of the risk of absconding.

The court observed that if the trial court establishes that the Toyota Hilux D4D recovered at the appellant's residence is the same vehicle captured on CCTV during the commission of the offence, then conviction of the appellant would follow "like day follows night". This metaphorical expression emphasized the strength of the circumstantial evidence in this particular case. The court also noted that upon conviction on 5 counts of theft from motor vehicles, an imprisonment sentence is "the most probable penalty appellant can expect", though this was not a determination of sentence but rather an assessment of likelihood for bail purposes.

This case is significant in Zimbabwean bail jurisprudence as it clarifies that courts may properly consider the strength of evidence linking an accused to an offence when assessing flight risk. The judgment confirms that where there is compelling evidence of guilt and a likelihood of substantial imprisonment upon conviction, these factors legitimately contribute to a finding that an accused poses a flight risk, without this being characterized as improperly relying solely on the seriousness of the offence. The case demonstrates the distinction between considering seriousness of offence in isolation versus considering it in conjunction with strength of evidence and likelihood of conviction.