Liason Mudimbwa v The State

On 27 April 2022 at around 15:00 hours, police officers received information that six suspects, including the applicant, were in possession of ivory and firearms in bushes along the Dete-Binga road near Gwayi bridge. A crack team comprising police detectives from the Minerals, Flora and Fauna Unit and Parks Intelligence Officers conducted surveillance. At around 18:00 hours, the applicant and his associates were spotted along the Dete-Binga road, each carrying elephant tusks. When approached and asked to produce permits authorizing them to possess raw ivory, they failed to do so. The applicant and his co-accused were found in possession of unlicensed firearms (an AK 47 and a point 375 rifle) as well as 25 rounds of ammunition. A total of 10 elephant tusks were recovered. The applicant was arrested and charged with one count of possession of raw ivory without a permit in contravention of section 82(1) of the Parks and Wildlife Regulations SI 362/1998 as read with section 128(1)(8) of the Parks and Wildlife Act (Chapter 20:14), and a further count of possession of a firearm without a licence in violation of section 4(1) of the Firearms Act (Chapter 10:09). The applicant denied the allegations, claiming he had gone to the Zambezi River on a fishing expedition, where Zambian nationals crossed the river and off-loaded ivory, and that he was forced to carry the ivory against his will.

• Whether the applicant should be granted bail pending trial
• Whether there were compelling reasons for the applicant's continued detention in terms of section 50(1)(d) of the Constitution of Zimbabwe
• Whether the state had established a strong prima facie case against the applicant
• Whether the applicant was a flight risk
• Whether the applicant had proffered a recognizable defence at law

The bail application was dismissed. The applicant remained in custody pending trial.

When determining bail applications, the court must balance individual liberty against the interests of justice. Where the state has established a strong prima facie case and there is a high probability of conviction, coupled with the prospect of a lengthy mandatory minimum sentence, this constitutes compelling reasons for continued detention under section 50(1)(d) of the Constitution of Zimbabwe. An applicant must proffer a recognizable defence at law, and a fanciful or implausible defence will not weigh in favor of granting bail. The possibility of facing a lengthy mandatory prison term upon conviction creates a substantial flight risk that justifies the refusal of bail.

The court made observations about the quality of the defence proffered by the applicant, stating that it "sounds more like a fiction story from a movie set than a real defence." The court noted that there is a need for an applicant to proffer a recognizable defence at law in bail applications. The court also observed that when in all probability an applicant's release on bail is likely to pose a real and substantial threat to the interests of justice, bail will not be granted. The court cited Jongwe v The State SC-62-02 for the proposition that in instances where the applicant's conviction is almost certain, the court is less likely inclined to grant bail to an accused person.

This case illustrates the application of constitutional bail provisions under section 50(1)(d) of the Constitution of Zimbabwe, which requires compelling reasons for continued detention. It demonstrates the court's approach in wildlife crime cases where mandatory minimum sentences apply, showing that the severity of potential sentences and the strength of the prima facie case are significant factors in assessing flight risk. The case also highlights the court's willingness to reject defences that are implausible or fanciful when determining whether to grant bail. It reinforces the principle that where conviction is almost certain and a lengthy mandatory sentence likely, bail will be refused to prevent absconding.