Lincolyn Tendai Mubaki v The State

The applicant and his co-accused Mcniel Mbombi were charged with robbery in breach of section 126 of the Criminal Law (Codification and Reform) Act. It was alleged that on 20 December 2010 at around 0230 hours they robbed Total Garage in Entumbane, Bulawayo. They allegedly attacked two security guards using logs and iron bars, overpowered them, tied their hands and legs with wire, broke into the premises, used explosives to blast open a safe, and stole US$15,000.00 and ZAR 10,000.00 in cash. They allegedly escaped in the applicant's Toyota Hiace minibus (registration AAZ 9823). The applicant was arrested on 18 October 2011, approximately 10 months after the incident, following the arrest of his co-accused who implicated him. The applicant applied for bail, arguing he was a family man with two minor children, of fixed abode, with no previous or pending cases.

• Whether the applicant should be granted bail pending trial
• Whether there was a risk that the applicant would abscond if granted bail
• The factors to be considered in assessing the risk of abscondment in bail applications

The bail application was dismissed.

In bail applications, where the state presents strong evidence of guilt in a serious criminal matter carrying a severe sentence, and the applicant fails to provide evidence to rebut the state's allegations, the court may properly conclude there is a substantial risk of abscondment. The factors to be considered in assessing risk of abscondment are: (i) the nature of the charge and severity of likely punishment; (ii) the apparent strength or weakness of the state case; (iii) the accused's ability to reach another country and absence of extradition facilities; (iv) the accused's previous behaviour; and (v) the credibility of the accused's assurances of intention to remain and stand trial. An applicant who fails to file supporting affidavits to rebut the state's factual allegations cannot succeed in a bail application where those allegations demonstrate a strong case and high risk of abscondment.

The court observed that although the applicant's counsel argued that the applicant's wife was present when recoveries were made and could provide evidence, the failure to file an affidavit from the wife or applicant was fatal to the applicant's case. The court noted that the entire case for the applicant was premised upon a bail statement which said nothing about the serious allegations made by the investigating officer, implicitly suggesting that a more thorough evidential response would have been expected in a properly prepared bail application.

This case is significant in Zimbabwean criminal procedure jurisprudence as it demonstrates the application of the established principles for assessing bail applications, particularly the risk of abscondment. It illustrates how courts weigh the strength of the prosecution's case, the seriousness of the offense, and the severity of potential punishment in determining bail. The case also emphasizes the importance of applicants providing evidential support for disputed factual allegations in bail proceedings, showing that mere assertions by counsel without supporting affidavits are insufficient to rebut the state's evidence.