Lovemore Madziyayo v The State

The applicant was in remand prison on allegations of armed robbery in terms of section 126 of the Criminal Law (Codification and Reform Act) [Cap 9:23]. He allegedly acted in consort and common purpose with four others to rob ZB Bank at gunpoint on 18 March 2010. He was alleged to have supplied the firearm used in the robbery. The gang allegedly stole USD114,724.00, ZAR14,332.00, one pistol and six cell phones using force and violence. Following the armed robbery, the applicant's gang had a shootout with police in which a police officer was shot and killed. The applicant had previously been denied bail by the High Court. He applied for bail again on the basis of changed circumstances, namely: (1) tendering additional security in the form of surrender of title deeds and travel documents; and (2) the death of one of his alleged accomplices, John Taranayi, which he claimed weakened the State case. The applicant had already been convicted of possession of an unlicensed firearm.

• Whether the applicant established changed circumstances warranting the granting of bail after a previous refusal
• Whether the tender of additional security and surrender of travel documents constituted sufficient guarantee against absconding
• Whether the death of a co-accused weakened the State case sufficiently to warrant bail
• Whether releasing the applicant on bail would jeopardize the ends of justice or investigations
• Whether the applicant was a flight risk
• Whether there had been unreasonable delay in bringing the applicant to trial

The application for bail pending trial was dismissed.

In a bail application based on changed circumstances following a previous refusal: (1) The tender of additional security and surrender of travel documents alone does not constitute sufficient guarantee against absconding where the offence is serious; (2) Where a police officer was killed by the accused's gang during investigations, this militates against bail as it demonstrates that releasing the accused might jeopardize the ends of justice and ongoing investigations; (3) The death of a co-accused does not necessarily weaken the State case where independent evidence exists implicating the applicant; (4) An accused cannot complain of unreasonable delay where only 3 months have passed since the alleged offence, particularly where the investigation involves serious, complex and dangerous matters; (5) Flight risk must be assessed considering the gravity of the offence, porous borders, and the accused's foreign contacts.

The court observed that it is not for the accused to determine whether investigations are complete. The court also noted that evidence showing the applicant had possession of the firearm used in the robbery, led to its recovery, and had been convicted of possession of an unlicensed firearm would, if proved at trial, tend to strengthen rather than weaken the State case against him.

This case illustrates the strict approach Zimbabwean courts take in bail applications involving serious offences such as armed robbery, particularly where violence has been used and law enforcement officers have been killed during investigations. It demonstrates that changed circumstances must be substantive and not merely formal (such as tendering additional security), and that courts will consider factors such as flight risk, seriousness of the offence, danger to investigations and the administration of justice, and the strength of the State's case when determining bail applications. The case also confirms that the death of a co-accused does not automatically weaken the State's case where independent evidence exists against the applicant.