Iphithule Mlotshwa and Others v The State

The three applicants are members of the Zimbabwe National Army who were arrested on allegations of robbery in two counts. The applicants denied the allegations in their entirety. At the time of the hearing, the State initially indicated it was opposed to bail but later filed written submissions stating it was not opposed to granting bail. This change of position was never properly placed before the court. The State alleged a strong prima facie case based on the recovery of a cell phone from one of the applicants, which the State claimed linked the applicants to the offence. The applicant in whose possession the phone was found explained that he purchased it from a named individual for USD60. The applicants were all gainfully employed as soldiers and of fixed abode, with no propensity to interfere with witnesses.

• Whether the applicants should be admitted to bail pending trial
• Whether the State's case against the applicants was sufficiently strong to justify refusal of bail
• Whether the grounds for refusing bail had been properly substantiated by the State
• Whether the State's inconsistent position on bail opposition could be maintained

1. Each applicant admitted to bail. 2. Each applicant to pay USD100 as bail recognizance to be deposited with the Registrar High Court Bulawayo. 3. Applicants ordered not to interfere with witnesses or investigations. 4. 1st Applicant to reside at House number 1650 Nkulumane 5, Bulawayo. 5. 2nd and 3rd Applicants to reside at Plot number 8 Gwatemba village, Filabusi. 6. Applicants to report at nearby Police Station once every fortnight on Fridays between 06:00am and 6:00pm until the matter is finalized.

Grounds for refusal of bail must be reasonably substantiated with cogent reasons supported by proper information, not mere bald assertions. The State must present a coherent and consistent position in bail proceedings, and cannot arbitrarily change its stance without properly placing the altered position before the court. Where the State's case is patently weak and rests on evidence that has been reasonably explained, and where accused persons are of fixed abode, gainfully employed, and show no propensity to interfere with witnesses, bail should be granted with appropriate conditions to ensure availability for trial. The constitutional presumption of innocence operates fully in favour of accused persons until guilt is proven at trial.

The court observed that whether or not the applicants committed the offences alleged is a matter for determination at trial, emphasizing the separation between bail proceedings and the merits of the criminal case. The court noted that accused persons in full-time employment are particularly suitable candidates for bail, as their employment status provides stability and accountability. The judgment also reinforced that anticipatory punishment through detention pending trial is impermissible under the constitutional framework, and that the balance in bail applications must be struck between societal interests in ensuring trial attendance and the liberty interests of the presumptively innocent accused.

This case reinforces important principles in Zimbabwean bail jurisprudence that are relevant to South African law, particularly: (1) the constitutional presumption of innocence must operate fully in favour of accused persons; (2) the State cannot merely make bald assertions when opposing bail but must produce cogent reasons supported by proper information; (3) detention pending trial cannot be used as anticipatory punishment; (4) bail should ordinarily be granted unless it would prejudice the ends of justice; (5) the State must maintain a consistent and coherent position in bail proceedings. The case also demonstrates the courts' approach to balancing societal interests in ensuring trial attendance against the liberty of accused persons presumed innocent.