Jimstone Regiment v The State

On 22 April 2022 at around 2030 hours, detectives from the Minerals Flora and Fauna Unit received information that the applicant was in possession of ivory and was using a Toyota Gaia Registration Number ABP 0075. A police team conducted surveillance around Hwange town and spotted the applicant and his co-accused near OK shop, Hwange. The applicant was found seated at the back seat of the vehicle with a bag, while his co-accused was behind the steering wheel. Upon search, police recovered one piece of ivory from the bag and two ivory pieces behind the rear seat of the vehicle. The ivory pieces weighed 2.295 kilograms. Applicant and his co-accused could not produce a permit for possession of the ivory and were arrested. The applicant claimed he was asked by a friend called 'Matters' to deliver a parcel at OK Hwange and was unaware of the ivory contents, alleging he was trapped by state agents.

• Whether the applicant should be granted bail pending trial
• Whether there are compelling reasons for the applicant's continued detention
• Whether the applicant has tendered a reasonably probable defence at law
• Whether the interests of justice would be endangered by the applicant's release on bail
• Whether the applicant's prospects of conviction and potential lengthy sentence create a risk of absconding

The application for bail pending trial was dismissed.

In a bail application, an applicant must tender a reasonably probable defence that is recognized at law - a defence that would appear probable to an ordinary right-thinking person. A bare denial or far-fetched explanation does not constitute a probable defence. Where an applicant is found in physical possession of prohibited items (such as raw ivory), the State establishes a strong prima facie case. When there is a high probability of conviction and the accused faces a mandatory lengthy prison sentence, there are compelling reasons to deny bail as the prospects of a severe sentence create an irresistible temptation to abscond, thus endangering the interests of justice.

The court observed that if the person called 'Matters' actually existed and had lawful possession of the ivory, he would have laid claim to it. The court also noted that it is highly unlikely that Matters would come to court and implicate himself in the unlawful possession of raw ivory, if he exists at all, particularly given that the police failed to locate him. The court further commented that the absence of a supporting affidavit from Matters significantly undermined the applicant's defence, and the suggestion that bail should be granted so the applicant could locate Matters was unpersuasive.

This case reinforces the principles governing bail applications in Zimbabwe, particularly in cases involving serious wildlife offences. It emphasizes that an applicant for bail must tender a reasonably probable defence recognized at law, not merely a bare denial. The case demonstrates the court's approach to bail applications where the applicant faces a mandatory lengthy sentence upon conviction, holding that such circumstances create compelling reasons for continued detention due to the risk of absconding. The judgment applies constitutional and statutory provisions on bail, balancing the right to liberty against the interests of justice.