Kudakwashe Jongwe v The State

The applicant was charged with robbery in contravention of s 126(1)(a) of the Criminal Law (Codification and Reform) Act, jointly with two co-accused. On 14 August 2019, the applicant and his accomplices allegedly approached the complainant Tendai Mangwende at her Epworth residence, posing as police officers. They forced entry into her house using a pistol, searched the premises, and robbed her of US$1,500. The applicant was arrested two months later in Chitungwiza with one of his co-accused while allegedly selling a carpet. The complainant positively identified the applicant at the police station. The applicant denied the allegations, claiming he was arrested while in Chitungwiza and could not have committed the offence. He argued that he and the complainant knew each other from prior business dealings involving the sale of a television. The investigating officer revealed that the applicant had previously been admitted to bail in 2016 on four counts of unlawful entry (CRB MBR6174/16), absconded, and was on a warrant of arrest for that matter. His accomplice in that matter, Blessing Majuru, was convicted and sentenced to 70 months imprisonment.

• Whether the applicant had discharged the onus to show that it was in the interests of justice to be admitted to bail
• Whether the applicant constituted a flight risk warranting the refusal of bail
• The weight to be attached to the applicant's previous absconding on bail and outstanding warrant of arrest

The bail application was dismissed.

An applicant for bail bears the onus to satisfy the court on a balance of probabilities that it is in the interests of justice to be released on bail. This onus is not discharged by mere say-so or bold statements, but requires substantive evidence under section 117(6) of the Criminal Procedure and Evidence Act. Where an applicant has a demonstrated history of absconding on bail and has an outstanding warrant of arrest for previous offences, such applicant constitutes a flight risk and has failed to discharge the onus of showing it is in the interests of justice to grant bail. Each bail application must be assessed on its individual merits based on the particular circumstances of the applicant, even where co-accused in the same matter have been granted bail.

The court noted that the matter was "almost on all fours" with that of co-accused Tawanda Marimira whom the same judge had granted bail under case number B1922/19, but distinguished the cases based on the applicant's criminal history. The court observed that there were inconsistencies regarding when and why the trial had been postponed, with the defence and prosecution blaming each other, though this did not form part of the ultimate determination. The court also noted that the charge had been upgraded to armed robbery upon realization that a firearm was used in the commission of the offence.

This case illustrates the application of bail principles in Zimbabwean criminal procedure, particularly regarding flight risk assessment. It demonstrates that each bail application must be considered on its individual merits, even where co-accused have been granted bail. The case reinforces that an applicant's history of absconding on bail and outstanding warrants of arrest are material factors that justify refusing bail, notwithstanding that co-accused in the same matter may have been granted bail. The judgment emphasizes that the onus on bail applicants requires substantive evidence and meaningful engagement with the State's opposition, not mere denial or bold assertions.