Jephat Chaganda v The State

The applicant was on trial in the High Court for theft of 28kgs of gold from Plumtree Police station Armoury on 15 August 2018. While on bail in that trial (HC 118/18), he was charged with defeating or obstructing the course of justice in contravention of section 184(1)(e) of the Criminal Law (Codification and Reform) Act. The State alleged that during investigations, the applicant approached two potential witnesses, Simangaliso Mpala and Sambo Magutshwa (owners of a locksmith shop where a duplicate key used in the theft was allegedly cut), and tried to persuade them to close shop, change cellphone numbers, and relocate to make it impossible for police to locate them. The applicant allegedly offered them large sums of money. The applicant denied the allegations, claiming they were malicious and designed to frustrate him in the ongoing trial, especially after he had been successfully acquitted at the Regional Court in a related matter involving 14.7kgs of gold.

• Whether compelling reasons existed to deny the applicant bail under section 50 of the Constitution of Zimbabwe (Amendment No. 20) 2013
• Whether the applicant's alleged interference with witnesses while on bail in another matter justified refusal of bail
• Whether releasing the applicant on bail would undermine the proper functioning of the criminal justice system under section 117(6)(a) of the Criminal Procedure and Evidence Act

The application for bail was dismissed.

An accused person who allegedly interferes with witnesses or police investigations while on bail in another matter is not a suitable candidate for bail. Where the State demonstrates compelling reasons supported by evidence that releasing an accused on bail would likely compromise the administration of justice through witness interference or undermining the criminal justice system, bail must be refused notwithstanding the constitutional presumption in favour of bail. A bare denial without a plausible defence does not place the court in sufficient confidence to grant bail where there are allegations of interference with the course of justice.

The court observed that the seriousness of the charge on its own is not a ground for denying bail pending trial, and the presumption of innocence still operates in favour of the applicant. The court noted that the fact that witnesses may not ultimately be called by the State in court does not absolve an accused of the offence of obstruction of justice, as the gravamen of the offence is the attempt to obstruct justice itself, not the success or failure of such attempts. The court also commented that an applicant need not prove his defence in a bail application, but must proffer a plausible defence that allows the court to assess the merits.

This case reinforces the principle in Zimbabwean criminal procedure that alleged interference with witnesses while on bail in another matter constitutes compelling reasons to deny bail. It demonstrates the application of the constitutional right to bail balanced against the protection of the criminal justice system. The case emphasizes that applicants for bail must provide plausible defences beyond bare denials and place the court in their confidence in all material respects. It also illustrates the court's application of section 117(6)(a) of the Criminal Procedure and Evidence Act in assessing whether bail would undermine the proper functioning of the criminal justice system.