George Kabanda v The State

The applicant, George Kabanda, was charged alongside an accomplice Amos Chingwaru with 4 counts of stock theft contrary to s 114 of the Criminal Code. Between May 19-31, 2016, they allegedly stole cattle from various complainants in the Beatrice area resettlement plots at night, using the same modus operandi: opening cattle pens, driving cattle away, slaughtering them nearby, and transporting the meat in a Honda Fit vehicle belonging to co-accused Chingwaru. The total value of stolen cattle was approximately US$4,200. In one incident, the vehicle was involved in an accident with stolen meat inside. The applicant and accomplices fled the scene but were later arrested. The applicant's co-accused Chingwaru had been granted bail on 17 June 2016. The applicant's trial had already commenced before the Magistrates Court, with two witnesses having testified, when he applied for bail to the High Court.

• Whether the applicant should be granted bail pending completion of his trial
• Whether s 50(d) of the Constitution applies to bail applications made during an ongoing trial or only applies pre-trial
• Whether the High Court has jurisdiction to entertain a bail application when the trial is ongoing before a Magistrates Court
• What procedure should be followed when an accused applies for bail during an ongoing trial before a lower court
• Whether the applicant was forum shopping by applying to the High Court instead of the trial magistrate

The bail application was dismissed. The court clarified that since the dismissal was not on the merits, the applicant was not bound by the rule requiring him to show changed circumstances before making future bail applications.

The binding legal principle is that when an accused person's trial has commenced before a magistrate's court, the proper procedure for applying for bail is to apply to the magistrate conducting the trial in terms of s 116(b) and s 117A(1) of the Criminal Procedure & Evidence Act (unless it is a Third Schedule offence). An accused cannot bypass this procedure by applying directly to the High Court; if bail is refused by the magistrate, the remedy is to appeal or seek review in the High Court. Furthermore, s 50(d) of the Constitution, which requires compelling reasons for detention, applies to pre-trial detention and does not govern bail applications made during an ongoing trial.

The court made several important observations: (1) that assessing a bail application during an ongoing trial would require consideration of the nature and strength of evidence already led, which can only be properly assessed with a transcript of proceedings; (2) that determining bail mid-trial presents challenges as it would require the High Court judge to review ongoing proceedings and potentially anticipate the strength of evidence still to be led by either party; (3) that since the application was dismissed on procedural grounds rather than merits, the applicant would not be bound by the rule requiring changed circumstances before making future bail applications. The judge also noted that State counsel had failed to address the impact of the trial having already commenced on the bail application.

This case clarifies important procedural points in Zimbabwean criminal procedure regarding bail applications made during ongoing trials. It establishes that: (1) s 50(d) of the Constitution applies only to pre-trial detention, not to bail applications made during an ongoing trial; (2) the proper procedure when an accused seeks bail during a trial before a magistrate is to apply to that magistrate first, with appeal or review to the High Court if refused; (3) when bail is sought during an ongoing trial, the strength of evidence already led becomes a critical consideration, requiring trial transcripts to be provided; and (4) an accused cannot bypass the trial court's jurisdiction by forum shopping to the High Court. The case demonstrates judicial concern about High Courts having to review ongoing lower court proceedings to determine bail applications.