Marlvin Magumura and Tonderai Nyamukondiwa v The State

On 28 May 2025, the applicants and their accomplices allegedly robbed Ellis Robins High School in Harare. They confronted and assaulted a security guard, tied him up, and used iron rods, bolt cutters, grinders, and explosives to break into the headmaster's office and strong room. They stole cellphones, cash (US$685), airtime (US$25), and groceries ($74). The security guard was kicked unconscious. On 10 July 2025, accomplice Jeremiah Makaza was arrested with various implements. He led police to the applicants at Masimbi intersection. When police approached the vehicle containing the applicants, they attempted to flee. A shootout occurred. The applicants were arrested and a search of the vehicle revealed a .38 revolver (erased serial number) with spent cartridge, a BT4 Combat Gas rifle, 10 detonator fuses, 6 dynamites, gloves, cutters, a catapult, and other implements. Two occupants were injured in the shootout. The applicants applied for bail, denying the allegations and claiming they were mere passengers waiting to meet Makaza (allegedly first applicant's uncle). They denied knowledge of firearms/explosives and denied the shootout.

• Whether the applicants discharged the onus to prove it is in the interests of justice to be released on bail in a Third Schedule offence
• Whether the applicants are a flight risk
• Whether the applicants pose a danger to public safety
• Whether the applicants will interfere with witnesses or commit further offences
• Application of s 50(1)(a) and s 70 of the Constitution of Zimbabwe (2013) regarding bail as a right
• Application of s 115C and s 117 of the Criminal Procedure and Evidence Act

The application for bail pending trial was dismissed.

In Third Schedule offences, the onus is on the accused to prove it is in the interests of justice to be released on bail. Where accused persons are found in possession of dangerous instruments (firearms and explosives), have engaged in violent conduct during arrest (shootout with police), face serious charges (robbery, unlawful possession of firearms and explosives), and the State has a strong case against them (possession of instruments of crime, implicated by co-accused), bail will be denied as they constitute a flight risk and a danger to public safety. The likely lengthy sentence in such serious cases creates an inducement to abscond. Section 117 of the Criminal Procedure and Evidence Act provides that it shall be in the interests of justice to deny bail where there is a likelihood that the applicant will endanger public safety, not stand trial, or commit further offences.

The court noted that while one of the firearms recovered (the BT4 Combat Gas rifle) is mainly used for paintball and "to a layman it looks like a real gun," this observation did not affect the seriousness of the charges as a functional .38 revolver with spent cartridge was also recovered and ballistics evidence showed it had been fired. The court also observed that further investigations into the motor vehicle's registration revealed irregularities, though ownership initially appeared to belong to Kudakwashe Nyamukondiwa. The court commented that Jeremiah Makaza died in a separate incident after his arrest and cooperation with police.

This case illustrates the application of constitutional and statutory bail provisions in Zimbabwe, particularly the heightened burden on accused persons charged with Third Schedule offences. It demonstrates how courts balance the constitutional right to bail against public safety concerns, the strength of the State's case, and the risk of flight or further offending. The judgment emphasizes that possession of instruments of violence (firearms and explosives), violent conduct during arrest (shootout with police), and the seriousness of offences are critical factors that can outweigh an accused's right to bail. The case also highlights the importance of credible evidence and how implausible explanations by applicants can undermine bail applications.