Edson Makamure v The State

The applicant was convicted by the Masvingo Regional Court on two counts of armed robbery as defined in s 126(3) of the Criminal Law (Codification and Reform) Act [Cap 9:23]. He was originally charged together with three co-accused who absconded before trial was finalized, resulting in a separation of trial. The applicant was sentenced to 7 years imprisonment. Evidence showed the applicant was associated with his co-accused at the relevant time when complainants were assaulted and robbed. The applicant was among people who slept at Trust Mupfurutsa's residence. Co-accused were positively identified by Thomas Rwasarira and Trust Mupfurutsa. The applicant was arrested upon investigation and was implicated by his co-accused. Five assailants robbed the complainants. The applicant applied for bail pending appeal on 2 November 2012.

• Whether the applicant should be granted bail pending appeal
• Whether there were prospects of success on appeal against conviction and sentence
• Whether the applicant was likely to abscond if granted bail
• Whether the trial court properly exercised its sentencing discretion
• Whether the conviction was supported by sufficient evidence

The application for bail pending appeal was dismissed.

In applications for bail pending appeal, the court must consider: (1) prospects of success on appeal, (2) likelihood of abscondment, (3) likely delay before appeal is heard, and (4) right to individual liberty. These factors must be considered cumulatively and holistically, not in isolation, to strike a balance between the interest of administration of justice and the right to individual liberty. Where there are no prospects of success on appeal and the nature of the conviction and sentence creates a high likelihood of abscondment, it is prejudicial to the administration of justice to grant bail, notwithstanding the right to liberty and delays in prosecuting appeals.

The court observed that while it is accepted that appeals take long to be prosecuted, that factor alone cannot stand to vitiate the other principles in bail applications. The court also noted that conviction based on common purpose and circumstantial evidence linking the accused to the offense can be sustained even in the absence of direct confession evidence, provided the only reasonable inference from the totality of evidence points to guilt.

This case reinforces the application of established principles for bail pending appeal in Zimbabwean criminal procedure. It demonstrates the court's approach to weighing competing interests between individual liberty and administration of justice, emphasizing that prospects of success on appeal is a critical factor. The case illustrates how courts apply the doctrine of common purpose in armed robbery cases and the sufficiency of circumstantial evidence to sustain convictions. It also shows the proper test for bail pending appeal requires a holistic assessment rather than isolated consideration of individual factors.