Gerald Rutizira and Neverson Mwamuka v The State

On 6 January 2021, the applicants and three accomplices allegedly conspired to rob a ZB Bank cash-in-transit truck transporting USD$2,775,000.00 to various bank branches. The gang, armed with pistols and a knife, arranged for three vehicles. ZB Bank employees Fanuel Musakwa and Shadrek Njowa, who were custodians of the money in the cash-in-transit vehicle, were allegedly involved in the conspiracy. At the 60km peg, accomplices who had posed as passengers disembarked, produced pistols, and with other gang members arriving in two vehicles, fired shots, disarmed the crew, bundled them into the canopy, drove the vehicle 900m off the highway, offloaded seven boxes containing the cash, and shared the loot at farms west of Nyabira. The first applicant was arrested on 9 January 2021 at a girlfriend's house in Amsterdam suburb, Harare, at 0200 hours. Police recovered USD$96,100.00, a white Toyota Hiace, and the Toyota Hilux double cab used in the robbery which had been recently repainted from red to white a day after the robbery. The second applicant was arrested at Goromonzi tollgate after police received intelligence he was fleeing to Mozambique. Police recovered USD$74,844.00 and ZWL$675.00 from various locations in his vehicle and luggage. Both applicants were remanded in custody on 13 January 2021 and subsequently applied for bail pending trial.

• Whether the applicants should be admitted to bail pending trial
• Whether the applicants demonstrated on a balance of probabilities that it was in the interests of justice to grant bail
• Whether the applicants posed a flight risk
• Whether granting bail would undermine the objectives of the criminal justice system and bail institution
• The proper scope of bail proceedings and whether challenges to remand allegations should be entertained in bail applications
• Whether the strength of the State's case and the seriousness of the offence militate against granting bail

Both bail applications (B 152/21 and B 175/21) were dismissed. Both applicants remained in custody pending trial.

1. Where an accused person does not challenge the factual allegations upon initial remand, the accused must be taken as having admitted those allegations for purposes of subsequent bail applications. 2. The bail court does not determine whether an applicant ought to have been placed on remand; challenges to remand decisions must be brought by way of appeal or review, not in bail proceedings. 3. An applicant bears the onus to establish on a balance of probabilities that it is in the interests of justice to be admitted to bail. 4. Where an offence is very serious, carries a heavy sentence on conviction, the State evidence is strong, there is certainty of conviction, and the applicant advances an untenable defence, the risk of absconding is adjudged to be very high. 5. An accessory after the fact under sections 206, 207, and 208 of the Criminal Law (Codification and Reform) Act is liable to the same punishment as the actual perpetrator. 6. Granting bail may be refused where it would undermine the objectives and proper functioning of the criminal justice system and the bail institution, particularly in cases of serious, well-planned offences with strong evidence of guilt.

The court expressed concern about the developing tendency among legal practitioners to mount sustained challenges in bail applications to the grounds or allegations on which the applicant was remanded in custody, stating this is improper. The court noted that occasionally investigating officers are called to give evidence in bail applications and are then asked to justify the arrest and provide evidence of the link between the applicant and the offence, which the court viewed as wrongly turning the bail court into a remand challenge court. The court observed that surrendering a passport will not necessarily cure the risk of absconding, as abscondment is not limited to fleeing to a foreign country but can include going into hiding within Zimbabwe, and borders can be crossed illegally without detection. The court noted that while the presumption of innocence remains a right, it may not likely be realized through a not guilty verdict where the facts and the applicant's own explanation provide no plausible defence. The court commented that applicants should address the factors in section 117(3)(b) of the Criminal Procedure and Evidence Act when addressing flight risk.

This case is significant in Zimbabwean bail jurisprudence for clarifying the proper scope and function of bail proceedings. It establishes that bail courts should not be used as forums to challenge remand decisions, which should instead be challenged through appeal or review mechanisms. The judgment reinforces the principle that where an accused consents to remand without challenging the allegations, those allegations are deemed admitted for purposes of subsequent bail applications. The case also demonstrates the application of established bail principles: that serious offences carrying heavy sentences, coupled with strong State evidence and weak defences, create a high likelihood of absconding. It illustrates how courts assess flight risk based on demonstrated attempts to flee (as with the second applicant) and participation in sophisticated criminal enterprises. The judgment provides guidance on the weight to be given to an applicant's proposed defence in bail applications, clarifying that while the bail court does not determine guilt, it can express a prima facie view on the veracity of defences when assessing whether it is in the interests of justice to grant bail.