Fanuel Musakwa v The State and Kelvin Musakwa v The State

Two applicants, brothers Fanuel Musakwa and Kelvin Musakwa, applied for bail pending trial in connection with a robbery committed in aggravating circumstances (armed robbery) under s 126(1)(a)(b). The robbery occurred on 6 January 2021 at approximately 11:30 am on the Harare-Chinhoyi road involving a cash-in-transit vehicle carrying USD$2,775,000 belonging to ZB Bank. The first applicant, Fanuel, was an employee of ZB Bank and was part of the cash-in-transit crew. The allegations were that he masterminded the robbery by organizing a meeting with accomplices the night before, providing updates on the vehicle's movement via phone, arranging for disguised accomplices to be picked up, and supplying money for fuel. US$48,000 allegedly being his share of proceeds was recovered at his rural home buried under a fowl run. The second applicant, Kelvin, was arrested on 9 January 2021. His only alleged connection was that he led police to recover US$48,000 which he claimed was given to him by Shadreck Njowa (an accomplice at large) for safekeeping for his brother. Neither applicant challenged their remand before the magistrate. The two applications were consolidated for hearing.

• Whether it was in the interests of justice to grant bail to the first applicant who was alleged to be the mastermind of a serious robbery
• Whether it was in the interests of justice to grant bail to the second applicant who was linked to the offence only as an accessory after the fact
• What factors are relevant in determining the likelihood of absconding in bail applications
• Whether the seriousness of an offence alone can justify denial of bail
• Whether the doctrine of parity of treatment applies to co-accused in bail applications
• The proper forum for challenging grounds of remand

1. The application by Fanuel Musakwa for bail (B366/21) was dismissed. 2. The application by Kelvin Musakwa for bail pending trial (B327/21) succeeded and bail was granted on the following conditions: a) deposit of $50,000 with the Clerk of Court, Harare Magistrates Court; b) reside at 5254 Kuwadzana 7 Harare; c) report every Monday, Wednesday and Friday at Kuwadzana Police Station between 6:00 am and 6:00 pm; d) not interfere with witnesses and evidence; e) copies of judgment to be filed in both case numbers.

The binding legal principles established are: (1) The seriousness of an offence, standing alone, does not debar the grant of bail - there must be other factors supporting likelihood of conviction or absconding. (2) Where an accused bears the onus to establish that it is in the interests of justice to grant bail, the burden is discharged by showing that grounds advanced by the State are not tenable or compelling enough to justify denial of bail. (3) A bail application is not the proper forum to challenge the decision of a magistrate to grant remand - such challenges must be brought by appeal or review. (4) In determining likelihood of absconding under s 117(3)(b) of the Criminal Procedure Evidence Act, the court must consider: the strength of the State's case, the likely penalty upon conviction, the nature and gravity of the offence, and the accused's ties to their residence and community. (5) Where the State case is prima facie strong and the offence carries mandatory substantial imprisonment (particularly life imprisonment), it is proper to infer likelihood of absconding. (6) The doctrine of parity of treatment of co-accused in bail applications depends on parity of circumstances - an applicant must demonstrate similarity of circumstances to rely on bail granted to co-accused.

The court made several non-binding observations: (1) The decision to take money to a rural village and hide it raises suspicions of knowledge that the money was tainted with illegality, though the impact of this will be determined at trial. (2) The public expects courts to observe and implement the rule of law, including determining bail applications as guided by law, not public sentiment. (3) There are cases where factual allegations and available evidence are so overwhelming that the presumption of innocence becomes difficult to uphold - in such cases the public would question the bail system if bail were granted. (4) The second applicant's alleged liability would at best be based on the dictum of an accessory after the fact, and the basis of liability will be a matter for legal argument at trial after facts are established. (5) Every bail case must be dealt with on its own facts. The court also observed that an applicant's bare assertion of fixed abode without demonstrating the nature of ties (ownership, lease, etc.) is insufficient to demonstrate residential stability.

This case demonstrates the application of bail principles in Zimbabwe (applicable to South African jurisprudence given similar constitutional frameworks) in the context of serious economic crimes. It affirms that: (1) the seriousness of an offence alone does not justify denial of bail without other compelling factors; (2) the presumption of innocence must be given effect in bail determinations; (3) the strength of the State's case combined with likelihood of severe sentence and weak residential ties can justify denial of bail; (4) accessory liability must be distinguished from principal liability in assessing bail; (5) challenges to remand decisions must be brought in the proper forum, not smuggled into bail applications; and (6) the doctrine of parity in treating co-accused depends on similarity of circumstances. The judgment provides guidance on balancing public confidence in the justice system against individual liberty rights in the bail context.