Garikai Sakala and Others v The State

The applicants (five individuals: Garikai Sakala, Kufakunesu Kembo, Vengai Sakala, Jimmy Kanokora, and Shine Chimuganu) were facing a charge of murder as defined in section 47 of the Criminal Law (Codification and Reform) Act. They were alleged to have caused the death of the deceased by striking him all over the body using weapons such as knobkerries, chains, booted feet and open hands. The applicants were indicted for trial in the High Court with trial set to commence on 23 March 2013. Following the indictment, they were removed from bail in terms of section 66(2) of the Criminal Procedure and Evidence Act. All applicants placed themselves at the scene and vicinity of the crime, disputing only the degree and manner of assault.

• Whether applicants who have been indicted for trial in the High Court and removed from bail are entitled to apply for bail pending trial before the trial court enters a plea
• Whether the termination of bail upon indictment precludes the court from exercising discretion to grant bail before plea
• What standard of proof applies to bail applications for offences listed under Part 1 of the Third Schedule of the Criminal Procedure and Evidence Act
• Whether the applicants satisfied the requirement to adduce evidence of exceptional circumstances warranting bail as required by section 117(6)(b)
• Whether the interest of justice would be prejudiced by granting bail in circumstances of a serious offence with strong state case and likelihood of lengthy or capital sentence

The bail application was dismissed.

The binding legal principles established are: (1) Section 169 of the Criminal Procedure and Evidence Act, which terminates bail upon plea to indictment, does not preclude accused persons from applying for bail pending trial before entering a plea - the court retains discretion to determine bail applications prior to plea. (2) For offences listed under Part 1 of the Third Schedule, applicants must comply with section 117(6)(b) and adduce evidence of exceptional/extraordinary circumstances satisfying the court that the interests of justice permit release on bail - this requires a higher standard of proof than ordinary bail applications. (3) Evidence of such exceptional circumstances can be adduced by affidavit, orally, or in written statement form. (4) In balancing the right to individual liberty against the interests of administration of justice, factors including the strength of the state case, seriousness of the offence, potential sentence, and proximity of trial date are relevant to assessing flight risk and whether bail would prejudice justice.

The court made several non-binding observations: (1) As a matter of policy for expediency purposes, once trial has commenced it is desirable that bail applications be entertained by the trial court, as the trial court is seized with the matter and informed about the circumstances - however, this does not remove the right to apply for bail pending trial. (2) The court noted that applicants' counsel's request for a transcribed record from the Judge was 'obviously misplaced' and should be requested through proper channels. (3) The court observed that the applicants disputed only 'the degree and manner of assault' when viewed against their placement at the scene, implicitly suggesting this was insufficient to constitute exceptional circumstances. (4) The court described the requirement for 'extraordinary evidence' as involving 'value judgment', indicating some flexibility in assessment while maintaining the higher threshold.

This judgment clarifies important procedural and substantive aspects of Zimbabwean bail law. It confirms that the termination of bail upon indictment does not eliminate the court's discretion to grant bail before plea, protecting the accused's right to apply for bail at various stages. The case reinforces the higher standard of proof required for bail applications involving offences under Part 1 of the Third Schedule - that applicants must adduce evidence of exceptional/extraordinary circumstances. It demonstrates the practical application of balancing individual liberty against administration of justice, particularly where serious offences with strong state cases and severe potential sentences create heightened flight risk.