Justice Marufu v The State

The appellant was charged with eleven counts of unauthorised use of password or pin number under s 168 of the Criminal Law Codification and Reform Act. The appellant applied for bail pending trial on 14 September 2018, which was refused by the magistrate. The State alleged that the appellant was positively identified by the complainant and witnesses, a photo of the password belonging to the complainant's corporate CBZ account was found on the appellant's Samsung handset, and money amounting to US$105 and $2,259 bond notes was recovered from his house (out of a total US$13,000 stolen). At the time of arrest, the appellant was found hiding naked in the ceiling of his house. The appellant had other pending similar charges at Mbare and Harare magistrates courts for theft and theft of trust property and was on bail for those matters. The appellant appealed to the High Court against the refusal of bail.

• Whether the magistrate erred in refusing bail on the basis of a shift of onus to the appellant when the State allegedly failed to adduce credible evidence linking the appellant to the offence
• Whether the magistrate erred in applying the wrong standard of proof (balance of probability) instead of the constitutional requirement of 'compelling reasons' under s 50(1)(d) of the Constitution
• Whether the magistrate erred in refusing bail on the basis of propensity to commit offences when no evidence allegedly linked the appellant to the offence
• Whether the magistrate erred by not properly considering the impact of the defence or explanation raised by the appellant

The appeal against refusal of bail was dismissed.

A magistrate does not misdirect himself in refusing bail where: (1) there is evidence linking the accused to the offence (such as possession of stolen items, passwords, and recovery of proceeds); (2) the accused's conduct demonstrates flight risk (such as hiding from police in a ceiling); and (3) the accused has a demonstrated propensity to commit similar offences while on bail for other pending matters. The presence of these factors justifies refusal of bail to protect the administration of justice and the public from further offending.

The court observed that grounds of appeal should be concise and to the point, separate from submissions or arguments supporting those grounds. Mixing grounds with submissions constitutes a defect that could result in an appeal being struck off for failure to comply with Rules of Court. However, courts may exercise discretion to consider such defective appeals on merits out of abundance of caution. The court also noted that it found no evidence in the record that the magistrate applied a 'balance of probability' standard, suggesting that appellants should ensure their grounds are supported by the actual record.

This case illustrates the approach Zimbabwean courts take in bail appeals, emphasizing that bail refusal will be upheld where there is evidence linking the accused to serious offences, demonstrated flight risk (such as hiding from police), and propensity to reoffend (evidenced by committing similar offences while on bail for other matters). It also demonstrates the importance of properly formulating grounds of appeal separately from supporting submissions, and clarifies that courts will examine whether there was a misdirection by the lower court rather than rehearing the bail application de novo.