Freeman Mpofu v The State

On 28 August 2021 at around 2100 hours, the applicant in the company of accomplices allegedly assaulted complainants using booted feet, clenched fists, axes, machetes and a spear, causing injuries all over their bodies. One person died as a result of the injuries inflicted. The applicant and his accomplices also destroyed a motor vehicle and a makeshift zinc cabin belonging to one of the complainants. After committing the offence, the applicant went into hiding until he was arrested on 9 November 2021 (approximately two and a half months later) by members of the community. He resisted arrest until he was subdued. The applicant made a confirmed warned and cautioned statement admitting that he committed the offences, stating he was armed with a rock/stone and a log while accomplices were armed with axes, machetes and a spear, and that he used these weapons during the attack.

• Whether exceptional circumstances existed which in the interests of justice permitted the applicant's release on bail
• Whether the State had a strong prima facie case against the applicant
• Whether the applicant was a flight risk
• Whether the applicant would interfere with witnesses if released on bail
• Whether release on bail would undermine the proper administration of justice

The application for bail was dismissed and the applicant was ordered to remain in custody pending trial.

In bail applications involving murder charges under Part II of Schedule 3 of the Criminal Procedure and Evidence Act, the accused bears the burden of proving, on a balance of probabilities, that exceptional circumstances exist which in the interests of justice permit release on bail. A strong prima facie case against the accused, coupled with the seriousness of the offences, the prospects of a lengthy term of imprisonment upon conviction, evidence of the accused being a flight risk (including evading arrest for an extended period and resisting apprehension), and the potential for release to undermine the proper functioning of the criminal justice system, constitute sufficient grounds to refuse bail where the accused has failed to demonstrate exceptional circumstances justifying release.

The court observed that an applicant's bare assertions (ipse dixit) that they will not abscond carry little persuasive weight when contradicted by the facts of the case and objective evidence. The court also noted that in cases involving serious crimes committed with dangerous weapons (machetes, spears, axes), releasing an accused who evaded arrest undermines not only the administration of justice but also public confidence in the bail institution and criminal justice system.

This case demonstrates the strict application of section 115C(2)(a)(ii)(B) of the Criminal Procedure and Evidence Act in cases involving murder charges under Part II of Schedule 3. It illustrates how Zimbabwean courts approach bail applications in serious violent crimes, emphasizing that the legislature has set a higher bar for granting bail in murder cases by requiring proof of exceptional circumstances. The case shows the weight given to confirmed warned and cautioned statements in assessing the strength of the State's prima facie case, and how conduct post-offence (such as evading arrest and resisting apprehension) is relevant to assessing flight risk. It reinforces that bare assertions by an accused regarding their intention to stand trial carry little weight when contradicted by objective facts and the seriousness of potential penalties.