James Chafungamoyo Makamba v The State

The applicant was arrested on 9 February 2004 on allegations of contravening section 5(1)(a)(i) of the Exchange Control Act [Chapter 22:05] as read with section 4(1)(a) and section 11(1)(a) of the Exchange Control Regulation Statutory Instrument 109/96. The applicant had approached the High Court for bail on at least three occasions without success. On his last attempt on 8 March 2004, Chitakunye J dismissed the application but suggested it could be reviewed in 3-4 weeks. On 15 March 2004, the applicant successfully argued before a magistrate that his arrest without a warrant was illegal as the offence was not one listed in the first schedule. The magistrate declared the arrest and detention illegal on 18 March 2004, but the applicant was immediately re-arrested, this time with a warrant. The charges involved alleged misappropriation of substantial foreign currency: US$2,117,444.00, £3,773,650.00, EURO 24,413.29, ZAR 14,977,996.03, DM 16,000.00, and $3,908,038.00. Police indicated they had obtained bank records from South Africa and intended to investigate further in Luxembourg, Switzerland, Germany, London and New York.

• Whether the applicant was entitled to make a fresh bail application following his re-arrest with a warrant after the magistrate declared his initial arrest illegal
• Whether any judge of the High Court could review or reconsider a bail application previously considered by another judge
• Whether bail should be granted considering the factors in section 116(7) of the Criminal Procedure and Evidence Act, particularly the likelihood of absconding, interfering with evidence, or committing further offences
• Whether the substantial amounts of foreign currency involved and the mandatory imprisonment provisions under section 5(7)(b) of the Exchange Control Act constituted good and sufficient reason to refuse bail

The application for bail was dismissed.

The binding legal principles established are: (1) Where an initial arrest is declared illegal by a magistrate and the accused is re-arrested with a warrant, this constitutes a new detention that entitles the accused to make a fresh bail application. (2) Any judge of the High Court has jurisdiction to review or reconsider bail applications, not only the judge who previously dealt with the matter - this is the established practice. (3) In cases involving Exchange Control Act violations with substantial foreign currency amounts, the mandatory imprisonment provisions of section 5(7)(b) and the quantum of hard currency involved (particularly where far exceeding the $200 threshold) constitute 'good and sufficient reason' under section 116(7) of the Criminal Procedure and Evidence Act to refuse bail on grounds of likelihood of absconding, notwithstanding the presumption of innocence.

The court made several obiter observations: (1) That the procedure for arrest prescribed by law ought to be followed, and an arrest for contravention of section 5(1)(a)(i) of the Exchange Control Act can only be done with a warrant unless the offender commits the offence in the presence of the police officer. (2) The court criticized the State's apparent bad faith in claiming investigations were complete and the matter ready for trial while simultaneously stating investigations were far from complete and requiring the applicant to remain in custody. The court observed: 'The State does not seem to be acting bona fide. One moment it says the investigations are complete and the matter is ready to go to trial as early as April. In the next breath it says investigations are still far from completion.' (3) The court commented that normal practice requires investigations to be completed before a matter is set down for hearing. (4) The court noted the practical difficulties in obtaining evidence from multiple foreign jurisdictions, observing that if it took 21 days to obtain documents from neighboring South Africa, it would likely take much longer for four other foreign countries.

This judgment is significant in Zimbabwean criminal procedure law as it clarifies important principles regarding bail applications, particularly: (1) that a fresh bail application may be made following re-arrest even on the same charges where the initial arrest was declared illegal and regularized; (2) that any judge of the High Court has jurisdiction to review or reconsider bail applications previously heard by another judge; and (3) that in Exchange Control Act cases involving substantial foreign currency, the mandatory imprisonment provisions and the amounts involved can constitute 'good and sufficient reason' under section 116(7) to refuse bail based on the likelihood of absconding. The case also demonstrates judicial criticism of prosecutorial conduct where the State's position on readiness for trial appears inconsistent with ongoing investigations.