Kainos Maphosa and Takudzwa Nyakudya and Freedom Mutakwa v The State

On 28 November 2020 around 2350 hours, the appellants allegedly approached the complainant armed with machetes and catapults, demanded gold ore, and dragged the complainant to a mine shaft threatening him to disclose where gold ore was. The complainant screamed for help, causing the appellants and others to flee. The appellants were subsequently arrested and charged with attempted robbery as defined in section 189(1)(a) or (b) as read with section 126 of the Criminal Law (Codification and Reform) Act. They applied for bail in the Magistrate Court and were denied bail primarily on the basis of the seriousness of the offence, the likely sentence inducing abscondment, and fears of interference with state witnesses.

• Whether the Magistrate Court misdirected itself in refusing bail to the appellants
• Whether the seriousness of the offence alone is sufficient grounds to deny bail
• Whether the State case was sufficiently strong to justify refusal of bail
• Whether there was evidence of likelihood of abscondment or interference with witnesses
• Whether the balance between the right to liberty and the interests of justice was properly struck

The appeal against bail refusal was upheld. Each appellant was admitted to bail upon depositing $20,000.00 with the Clerk of Court Mutare Magistrate Court, residing at their specified addresses, reporting once weekly on Fridays at designated police stations between 6am and 6pm, and not interfering with any state witnesses including the complainant.

In bail applications, the seriousness of an offence alone does not justify refusal of bail. A finding that the State case is strong must be supported by concrete evidence placed before the court; such a finding cannot be made in the abstract or based solely on a co-accused's confession which is inadmissible against other accused persons under section 259 of the Criminal Procedure and Evidence Act. Fears of abscondment or witness interference must be substantiated with evidence rather than speculation. The court must balance the constitutionally guaranteed right to liberty (anchored on the presumption of innocence) against the interests of justice, considering all relevant factors cumulatively. Where any potential prejudice to the administration of justice can be adequately addressed through the imposition of appropriate bail conditions, bail should be granted.

The court observed that the fact that appellants do not reside in the local court's jurisdiction does not make them flight risks or remove them from the jurisdiction of the High Court, as they are Zimbabwean citizens of fixed abode within the jurisdiction of the High Court of Zimbabwe. The court noted that there was no evidence that the appellants had evaded arrest or attempted to flee from law enforcement agents. The court also commented that in determining whether to admit an applicant to bail, factors should not be considered in isolation but cumulatively, and thereafter a balance must be struck between competing interests.

This case reaffirms important principles in Zimbabwean bail jurisprudence that are applicable to South African law, particularly: (1) the seriousness of an offence alone is insufficient to deny bail; (2) a finding that the State case is strong must be supported by concrete evidence, not mere speculation; (3) confessions by co-accused are not admissible against other accused persons and cannot form the sole basis for concluding the State has a strong case; (4) fears of abscondment or witness interference must be substantiated with evidence rather than speculation; and (5) the constitutional right to liberty must be balanced against the interests of justice, with proper consideration of bail conditions as a means of protecting both interests. The case demonstrates the appellate court's role in scrutinizing whether lower courts have properly applied bail principles and considered all relevant factors cumulatively rather than in isolation.