Jonasi Musekiwa v The State

The applicant, aged 40, faced charges of armed robbery (section 126(1) of the Criminal Law (Codification and Reform) Act) and attempted murder (sections 47 and 189 of the same Act). On 7 March 2021 around 2100 hours, the applicant and four accomplices allegedly proceeded to the complainant's house in Zambezi Park, Gweru. They manhandled a security guard, disarmed him, confronted the complainant and two others at the car park, threatened them with pistols, and assaulted them. The victims were force-marched into the house where two other individuals were present. All were forced to lie down and assaulted with a baton stick. The accused ransacked the house and stole US$5 and ZW$4,570. When police arrived at the scene while the robbery was in progress, an exchange of gunfire ensued resulting in injuries to two police officers and a third individual. The applicant and his accomplices also sustained gunshot injuries but escaped. The applicant was later arrested when he sought medical treatment for his gunshot wounds. He applied for bail pending trial.

• Whether the applicant discharged the onus to show on a balance of probabilities that it would be in the interests of justice to release him on bail in respect of Third Schedule offences
• Whether the applicant was a flight risk
• Whether the applicant was likely to interfere with or intimidate witnesses
• Whether the applicant's release on bail would undermine the proper functioning of the criminal justice system including the bail system
• How to balance the presumption of innocence and the applicant's right to liberty against the interests of the proper administration of justice

The application for bail pending trial was dismissed.

In applications for bail pending trial involving Third Schedule offences, the onus is on the applicant to show on a balance of probabilities that it is in the interests of justice to release him on bail. While there is a presumption of innocence and courts should lean in favor of liberty where possible, bail must be refused where the State establishes cogent reasons (not bald assertions) showing that: (1) the applicant is likely to abscond; (2) the applicant is likely to interfere with witnesses; or (3) the release would undermine the proper functioning of the criminal justice system including the bail system. The court must strike a balance between the individual's liberty and the proper administration of justice, considering the particular circumstances of each case, including the seriousness of the charges, the strength of the State's case, the likely penalty upon conviction, the manner in which the alleged offence was committed, and whether the applicant will stand trial if released. Where evidence shows determination to evade arrest (such as through armed confrontation with police), this supports findings of flight risk and likelihood of witness interference.

The court observed that identification parades serve a specific purpose - to identify suspects - but where identification occurs at the scene of the crime in the circumstances as presented in this case, the need to hold an identification parade may not be necessary. The court also commented on the societal context, noting that armed robberies using firearms are on the increase as evidenced by daily press reports, and that citizens have been warned to be wary of armed robbers and are fearful because of the rate at which such robberies are occurring. The judge noted that while suitable bail conditions may be imposed to address concerns of abscondment and witness interference, not every case can be addressed through conditions - the circumstances of each case must be considered in deciding whether the imposition of conditions suffices. The court warned that courts ought not to pay lip service to well-grounded State opposition to bail and must properly weigh the competing interests rather than routinely granting bail.

This case demonstrates the application of bail principles in Zimbabwe in cases involving serious violent crimes, particularly armed robbery with firearms. It illustrates how courts balance the presumption of innocence and individual liberty against societal interests in the administration of justice. The judgment emphasizes that opposition to bail must be substantiated with cogent reasons beyond bald assertions, and that each case must be assessed on its particular circumstances. The case also reflects judicial concern about the increasing prevalence of armed robberies and the need to maintain public confidence in the bail system. It shows that even though bail is an entitlement, compelling circumstances related to flight risk, witness interference, and undermining the justice system can justify refusal of bail for Third Schedule offences.