Joana Phiri v The State

The applicant, Joana Phiri, was arrested on 28 May 2021 together with her husband (the first accused) and charged with robbery as defined in section 126(1)(a) of the Criminal Law (Codification and Reform) Act. It was alleged that on 25 May 2021 at around 0100 hours, the applicant and co-accused persons armed themselves with a 303 rifle, two pistols, machetes, knives and iron bars and robbed three complainants of their vehicles, cash and cell phones after threatening to shoot them. The applicant was arrested three days after the alleged offence at her homestead. Police recovered groceries from her home and a 303 rifle registered in her husband's name. The applicant testified that on 25 May 2021, her husband came home around 0430 hours, told her he had been robbed of groceries, took his 303 rifle from the gun cabinet, and left while she remained home with the children. She is a mother of four minor children and has no passport or travel documents.

• Whether the applicant discharged the onus under section 115C(2)(a)(ii)(A) of the Criminal Procedure and Evidence Act to prove on a balance of probabilities that it is in the interests of justice for her to be released on bail
• Whether the applicant posed a flight risk
• Whether the applicant's continued detention was justified for investigative purposes
• Whether there was sufficient evidence linking the applicant to the commission of the robbery

The applicant was granted bail on the following conditions: (i) deposit of RTGS $10,000 with the Registrar of the High Court, Bulawayo; (ii) reside at her homestead at Mapolobele Village, Ward 5, Headman Chinoni, Chief Staudze, Beitbridge until finalization of the matter; (iii) not interfere with state witnesses and/or police investigations; (iv) report at Beitbridge Police Station every Monday and Friday between 6am and 6pm.

In bail applications involving Schedule 3 Part 1 offences under section 115C(2)(a)(ii)(A) of the Criminal Procedure and Evidence Act, the applicant must prove on a balance of probabilities that it is in the interests of justice to be released on bail. The State is not entitled to detain an accused person in custody merely to complete an investigation, as this would be contrary to constitutional imperatives. Where the only evidence connecting an accused to a robbery charge is their relationship to a co-accused and the recovery of allegedly stolen property from their shared home, and where there is no evidence of flight risk or other compelling factors, the applicant may discharge the onus of showing it is in the interests of justice to grant bail. The seriousness of an offence alone cannot justify continued incarceration.

The court observed that counsel for the applicant initially had not familiarized himself with the statutory provisions upon which the matter turned, and failed to file evidence as required for the applicant to discharge the burden under section 115C(2)(a)(ii)(A). The court noted that the bar for granting bail in robbery cases involving firearms is 'lifted a bit higher by the legislature.' The court also commented that in general, and in view of constitutional imperatives, the State is not entitled to detain an accused person in custody in order to complete an investigation, though this principle was not extensively developed in the judgment.

This case illustrates the application of section 115C(2)(a)(ii)(A) of the Criminal Procedure and Evidence Act in Zimbabwe, which places a higher burden on applicants charged with Schedule 3 Part 1 offences (robbery involving firearms) to prove on a balance of probabilities that it is in the interests of justice to grant bail. The judgment reaffirms that the State is not entitled to detain an accused person merely to complete investigations, which aligns with constitutional imperatives. It demonstrates that where the only connection to the offence is the applicant's relationship to a co-accused and circumstantial evidence (groceries found at home), this may be insufficient to justify continued detention. The case emphasizes that mere seriousness of the offence alone cannot justify continued incarceration, and that courts must conduct a balanced assessment of all relevant factors.