Life Hahlani and Mqondisi Akim Sibanda and Ardonia Mashonga and Loswita Joyce Ndarova v The State

The four applicants together with Vusumuzi Reynold Dube (who was granted bail separately) appeared before the magistrate at Bindura on 12 January 2021 charged with robbery in aggravating circumstances. It was alleged that on 20 December 2020, the five accused connived to rob complainant Daniel Chigwada at his residence in Chigonda village, Chiweshe. The fourth applicant allegedly masterminded the robbery by informing the others that her uncle (the complainant) had lots of cash at his house. The four Bulawayo-based accomplices drove to meet the fourth applicant in Harare, then proceeded to the complainant's homestead. Armed with a pistol, machetes, iron bars and wheel spanners, they cut through the security fence around 23:00 hours, confronted the complainant and his family, assaulted them, threatened to rape the complainant's daughter, and forced him to surrender US$9,410 from his safe. They also stole a Honda Fit vehicle, laptop, groceries, four cellphones and two bags. Police tracked the applicants to Bulawayo using the stolen cellphones which they were using. The investigating officer testified that each applicant made indications of participation, the first applicant led police to recovery of the Honda Fit, and that the first, second and third applicants were wanted on warrants for robbery cases in Mazowe, Gweru, Kwekwe and Lupane. All applicants were lodgers at their residences with uncertain tenure.

• Whether the applicants, charged with a Part 1 Third Schedule offence under section 115C(2)(a)(ii)A of the Criminal Procedure and Evidence Act, discharged the burden to show that it is in the interests of justice to admit them to bail pending trial
• Whether the applicants were flight risks given the seriousness of the charges, strength of evidence against them, and likely sentence upon conviction
• Whether the principle of equality of treatment of co-accused requires that the applicants be granted bail because co-accused Vusumuzi Reynolds Dube was granted bail

The application for bail pending trial in regard to each of the four applicants was dismissed.

In applications for bail pending trial for Part 1 Third Schedule offences under section 115C(2)(a)(ii)A of the Criminal Procedure and Evidence Act, the applicant bears the burden to show it is in the interests of justice to admit them to bail. The principle of equality of treatment of co-accused requires establishing factors of similarity between co-accused in both the circumstances of commission of the offence and personal circumstances - it is not automatic merely because one co-accused was granted bail. The more serious the offence coupled with prima facie evidence making conviction likely and a heavy sentence to be imposed, the greater the likelihood of abscondment and the stronger the case against granting bail.

The court observed that where allegations, if unanswered, leave no doubt on the probability of the applicants being the ones who committed the actus reus, the effect of the presumption of innocence is watered down. The court also noted that applicants were not guided to refer to provisions of section 117(3) of the Criminal Procedure and Evidence Act as may be applicable in addressing factors to be taken into account when a ground of appeal in section 117(2) is alleged by the state. The court expressed sympathy for applicants' counsel, acknowledging the difficulty in advancing the bail application given the compelling unchallenged allegations and evidence against the applicants.

This case illustrates the application of the reverse onus provision in section 115C(2)(a)(ii)A of the Criminal Procedure and Evidence Act for Part 1 Third Schedule offences in Zimbabwe. It demonstrates how courts assess bail applications where applicants face serious charges with strong prima facie evidence, and clarifies that the principle of equality of treatment of co-accused is not automatic but requires establishing parity of circumstances. The case also shows how unchallenged allegations that strongly suggest guilt can diminish the practical effect of the presumption of innocence in bail proceedings.