Jim Kunaka v The State

The appellant was charged with incitement to participate in a gathering with intent to promote public violence, breach of peace or bigotry as defined in section 187(1)(a) as read with section 37(1)(a) of the Criminal Law (Codification & Reform) Act. Alternatively, he was charged with incitement of gathering of more than fifty people without permission under COVID-19 regulations (S.I. 110 of 2020). The charge related to a video clip allegedly showing the appellant inciting people to participate in a gathering to promote public violence on 31 July 2020. The appellant had a pending case for subverting constitutional government (CRB 762/19) and had previously defaulted court on 7 August 2020 when he was due to appear on routine remand. A warrant of arrest was issued but was later cancelled after a default enquiry, and his bail was allowed to stand. On 30 December 2020, a provincial magistrate denied him bail in the current matter (CRB 12218/20).

• Whether the magistrate erred in finding that there were compelling reasons to deny the appellant bail
• Whether the magistrate properly considered the reasonableness of the appellant's explanation for his previous court default
• Whether the magistrate was misdirected in concluding that the appellant was a flight risk
• Whether the magistrate properly applied section 117(2)(a)(1) of the Criminal Procedure and Evidence Act regarding propensity to commit offences
• Whether the magistrate erred in revisiting the default enquiry matter after it had already been dealt with by the court

The appeal was allowed. The decision of the magistrate made on 30 December 2020 to deny bail in case CRB 12218/20 was set aside and substituted with an order granting bail on the following conditions: (a) The accused shall deposit $15,000 with the Clerk of Court of Harare Magistrate Court; (b) The accused shall reside at 1468 Mainway Meadows Waterfalls, Harare; (c) The accused shall not interfere with State witnesses or investigations; (d) The accused shall report at Waterfall Police Station every Friday between 6:00 a.m. - 6:00 p.m.

When considering bail refusal based on propensity to commit offences under section 117(2)(a)(1) of the Criminal Procedure and Evidence Act, a court must make specific findings about the nature of the offences the accused is likely to commit, and such offences must either be First Schedule offences or similar offences to those charged. A generalized finding that an accused has a "propensity to commit more offences" without specification is insufficient and constitutes a misdirection. Once a court has dealt with a default enquiry and made a determination on bail, the matter is functus officio and cannot be revisited in a subsequent bail application. An accused person who is on bail and brought to court on another charge is not automatically disqualified from bail; bail will be granted if it is in the interests of justice to do so.

The court made critical observations about the conduct of the prosecutor, Mr. Chikosha, noting that despite accepting the misdirections by the magistrate, he refused to make a concession and stammered to advance his points without proper legal ammunition. Chitapi J stated that such an attitude is not expected of the office of the Prosecutor General, and reminded counsel that under section 260(1)(b) of the Constitution, the Prosecutor General is required to exercise functions impartially and without fear, favour, prejudice or bias. The court observed that fear could be read in the prosecutor's demeanor. The court also noted that it was illogical for the same magistrate to find the appellant a good candidate for bail in one case after a default enquiry but not bailable in relation to current charges when both matters were dealt with simultaneously.

This case is significant in Zimbabwean criminal procedure law as it clarifies the proper application of bail refusal grounds under section 117(2)(a)(1) of the Criminal Procedure and Evidence Act. It establishes that when denying bail based on propensity to commit offences, courts must specify the nature of the offences and ensure they fall within First Schedule offences or are similar offences to those charged. The case also reinforces the principle that courts cannot revisit matters already determined (functus officio doctrine) and that previous court defaults, once dealt with through default enquiry proceedings, cannot be used as grounds to deny bail in subsequent matters if bail was allowed to stand after the enquiry. The judgment emphasizes that bail decisions must be based on proper legal grounds and not on generalized concerns, and that the cornerstone of bail is to ensure the smooth administration of justice by ensuring attendance at trial, not punishment.