Dickson Morosi and Kundai Makwarimba and Fortune Sibanda v The State

The three applicants were officers of the Zimbabwe Republic Police arrested for contravening s 113 of the Criminal Law (Codification and Reform) Act. On 26 July 2016 at about 1430 hours, the applicants and seven accomplices who remained at large allegedly conspired to steal from the complainant. They had inside information that the complainant was carrying large sums of cash from his business premises to his residence in Belvedere, Harare. The applicants, wearing police uniforms and driving two motor vehicles without registration plates, mounted a fake police roadblock. When the complainant arrived, they confronted him about the cash and took the money before driving away in a Toyota Spacio without registration numbers. The complainant initially reported the loss as US$3,555.00 but later changed it to US$56,000.00, explaining that the applicants had told him it was a criminal offence to carry large sums of money. After arrest, the applicants led police to the recovery of money and motor vehicles allegedly purchased from the proceeds of the offence. Three motor vehicles were recovered, all purchased a day after the offence was committed.

• Whether there were compelling reasons to deny bail to the applicants in terms of s 50(1)(d) of the Constitution
• Whether the applicants posed a risk of absconding given the strength of evidence against them
• Whether the applicants posed a risk of interfering with witnesses and evidence if released on bail
• Whether the seriousness of the offence and likelihood of lengthy imprisonment constituted compelling reasons to refuse bail
• The application of s 117 of the Criminal Procedure and Evidence Act in assessing bail applications

The application for bail was dismissed.

Where applicants for bail are law enforcement officers charged with serious offences involving abuse of their authority and uniforms, and there is strong circumstantial evidence linking them to the offence (including recovery of assets purchased immediately after the offence with unexplained sources of funds), compelling reasons exist to deny bail under s 50(1)(d) of the Constitution and s 117 of the Criminal Procedure and Evidence Act. The likelihood of lengthy imprisonment upon conviction, combined with risks of witness intimidation, evidence tampering, and collusion with accomplices who remain at large, constitutes compelling reasons justifying continued detention notwithstanding prosecutorial concession. The prosecution's attitude to a bail application, while a relevant factor, is not decisive and does not bind the court's independent assessment of whether compelling reasons exist to deny bail.

The court made reference to the case of Mahata v Chigumira NO & Anor 2004 (1) ZLR 88 (H) at 92D-E for the principle that the attitude of the prosecution to bail applications, though not necessarily decisive, is a factor which the court takes into account together with all other relevant factors. The court observed that while the seriousness of the offence is not always a bar to the admission of an accused person to bail, the facts in the present case pointed to a well-planned and executed scheme to commit the offence. The court used the proverbial expression about 'the hyena that vomited grey hair a few hours after an old woman went missing' to illustrate the strength of circumstantial evidence against the applicants, suggesting this traditional saying applies where accused persons fail to provide convincing explanations for incriminating circumstances.

This case demonstrates the application of constitutional bail provisions under Zimbabwe's Constitution, particularly s 50(1)(d), and how courts balance the presumption in favour of bail against compelling reasons for continued detention. It is significant in establishing principles for denying bail to law enforcement officers accused of abusing their positions, particularly where there is strong circumstantial evidence, risk of witness interference, and accused persons' accomplices remain at large. The case illustrates that prosecutorial concession on bail is not determinative and courts retain independent discretion to assess all relevant factors. It also demonstrates the court's approach to evaluating unexplained wealth and circumstantial evidence in bail applications, particularly where property is acquired immediately after an alleged offence.