Johannes Tomana v The State

The appellant was facing charges of criminal abuse of duty as a public officer under s 174(1)(a) of the Criminal Law (Codification and Reform) Act, alternatively defeating or obstructing the course of justice under s 184(1)(a)(e). On 7 July 2016, while leaving court after a routine remand on other charges, he was invited to CID Law and Order where he was informed of additional charges dating back to 2009. A warned and cautioned statement was recorded and he was advised he was free to go. On 12 July 2016, he was invited to court where the State intended to marry the new charges with existing ones. The appellant came to court from his home (not in custody). The magistrate admitted him to bail with conditions including: US$2,000 deposit, surety of US$250,000, surrender of travel documents, reporting three times weekly, and non-interference with witnesses. The appellant had already been on bail for previous charges (CRB 1837/16) with existing conditions. The magistrate imposed the new bail conditions without hearing submissions from the appellant's counsel, despite counsel's protest. The appellant appealed against the bail order.

• Whether an accused person who is not in custody can be subject to bail conditions under s 117(1) of the Criminal Procedure and Evidence Act
• Whether the appellant had the right to appeal against the admission to bail under s 121(1)(b) of the Criminal Procedure and Evidence Act as amended
• Whether the magistrate erred in imposing bail conditions mero motu without a request from the State
• Whether the magistrate violated the audi alteram partem rule (right to be heard) by imposing bail conditions without hearing submissions from the appellant's counsel
• Whether the magistrate erred in determining bail conditions without holding an enquiry as provided in s 117A of the Act
• Whether the bail conditions imposed were excessive in contravention of s 120 of the Act

1. The decision of the Magistrate Court under CRB 9563/16 admitting the appellant to bail is set aside. 2. The appellant is remanded out of custody under CRB 9563/16. 3. The appellant shall continue to observe conditions set in CRB 1837/16 (the previous case). 4. The Clerk of Court, Harare Magistrates Court shall refund the sum of US$2,000.00 paid as bail under CRB 9563/16 and return the recognizance surrendered to the court to the appellant.

The binding legal principles established are: (1) Section 121(1)(b) of the Criminal Procedure and Evidence Act (as amended by the Criminal Procedure and Evidence Amendment Act of 2016) grants an accused person the right to appeal against the admission to bail, the amount fixed as bail, or any conditions imposed in connection with bail at any time. (2) The audi alteram partem rule (right to be heard) is a fundamental requirement in bail proceedings. A magistrate cannot impose bail conditions without hearing submissions from the accused person's legal representative. (3) Failure to afford an accused person the opportunity to be heard before determining bail conditions constitutes a gross misdirection and procedural irregularity that vitiates the bail proceedings. (4) A decision on bail conditions reached without hearing the accused risks being arbitrary and capricious, as the court cannot properly assess the accused's circumstances or balance the interests of justice without such submissions. (5) While s 117(1) of the Criminal Procedure and Evidence Act refers to persons "in custody," a court has authority to consider bail when placing an accused on remand, even if the accused is not physically detained at that moment.

The court made several non-binding observations: (1) Had the magistrate heard the appellant's submissions, it would likely not have been necessary to set new bail conditions, but rather the court could have ordered the appellant to continue observing already existing bail conditions from the previous case (CRB 1837/16), since the charges were to be married and there would be a single trial. This would not have prejudiced the interests of justice. (2) The court noted that the appellant had never been detained on the new charges, came to court from his home, and had already surrendered his passport, paid $1,000 bail, and was reporting to CID Law and Order Harare - facts that could easily have been placed before the court had the magistrate allowed parties to address him. (3) Regarding excessive bail, the court observed that while surety from third parties is acceptable, if bail conditions are set beyond the reach of an applicant it equates to denial of bail. However, the court indicated the more pertinent issue was that conditions were arrived at without hearing the appellant. (4) The court emphasized that the right to be heard is "the central pillar that supports the right of access to justice" and described it as "sacro sanct" and "the cradle of justice and fairness in all legal proceedings." (5) The court noted that denial of the opportunity to present one's case in any proceedings (criminal, civil, administrative, or disciplinary) that affect a person's rights means "the outcome thereof cannot be in accordance with real and substantial justice."

This case is significant in Zimbabwean criminal procedure law for several reasons: (1) It clarifies that an accused person has an independent statutory right to appeal against the granting of bail and the conditions imposed, not just the State, under s 121(1)(b) of the Criminal Procedure and Evidence Act as amended in 2016. (2) It reinforces the fundamental importance of the audi alteram partem rule (right to be heard) in bail proceedings, holding that judicial officers cannot impose bail conditions without hearing submissions from the accused, even when considering bail mero motu. (3) It demonstrates that procedural irregularities in bail proceedings, particularly violations of natural justice, will vitiate the court's decision regardless of whether the accused ultimately complied with the conditions. (4) It provides guidance on the court's discretion to impose bail conditions when an accused is not physically in custody but is being placed on remand. (5) It emphasizes constitutional protections of liberty under s 50(1)(d) of the Constitution, which favors unconditional release unless compelling reasons justify detention. The case serves as an important reminder to magistrates of the procedural requirements and fairness principles that must be observed in bail proceedings.