Mehluli Ndlovu and Peter Dube v The State

The appellants appeared before the magistrate's court on initial remand on 16 January 2021, charged with assault and robbery arising from two separate incidents in July 2019. In the first incident on 26 July 2019, they allegedly assaulted Siambale Muzamba with logs, axes and knives, causing serious injuries. In the second incident on 4 July 2019, they allegedly assaulted Tumene Surichiri with an iron bar and axe and robbed him of ZW$80.00. The Investigating Officer attempted to arrest them from August 2019 but could not locate them at their homes despite multiple visits. Warrants of arrest were issued on 27 September 2019. The appellants were eventually arrested on 15 January 2021, approximately 1½ years after the alleged offences. The magistrate's court denied them bail on the grounds that they were a flight risk. The appellants denied being on the run, claiming they never left their homes, and appealed the refusal of bail.

• Whether the magistrate's court misdirected itself in refusing bail to the appellants
• Whether the appellants were flight risks justifying refusal of bail in terms of section 117(2)(a) of the Criminal Procedure and Evidence Act
• Whether an affidavit from an Investigating Officer could be relied upon without the officer testifying and being cross-examined
• Whether the court a quo properly exercised its discretion in denying bail

The appeal against the refusal of bail was dismissed.

In bail proceedings, courts may properly rely on affidavit evidence from investigating officers without requiring oral testimony or cross-examination, as section 117A(4) of the Criminal Procedure and Evidence Act permits receipt of affidavits, written reports and hearsay evidence. Where there is evidence that an accused evaded arrest over an extended period, including multiple failed attempts to locate them and the necessity of obtaining warrants of arrest, a court is justified in finding them to be a flight risk under section 117(2)(a)(ii) and refusing bail in the interests of justice. An appellate court will only interfere with a magistrate's exercise of discretion in bail matters where there has been a misdirection, irregularity or such unreasonable exercise of discretion as to vitiate the decision.

The court observed that the grant or refusal of bail involves a balancing act between individual liberty and the interests of proper administration of justice. The court noted that bail proceedings are fundamentally different from criminal trial proceedings in their evidentiary standards and procedures. The judgment also commented that the manner of arrest (by raid) and the timing (1½ years after the alleged offences) "speaks volumes" about the appellants' conduct and intentions. The court remarked that whether the appellants would ultimately be found guilty or innocent was not the sole issue, but rather whether they would allow the wheels of justice to turn unimpeded.

This case is significant in Zimbabwean criminal procedure law as it clarifies the evidentiary standards applicable in bail proceedings, particularly: (1) that affidavit evidence from investigating officers may be relied upon without requiring oral testimony and cross-examination; (2) that hearsay evidence is admissible in bail proceedings under section 117A(4); (3) the proper approach to assessing flight risk based on conduct evading arrest; and (4) the limited circumstances in which an appellate court may interfere with a lower court's exercise of discretion in bail matters. The judgment reinforces that bail proceedings differ from criminal trials in their evidentiary requirements and that the interests of justice and proper administration of justice must be balanced against individual liberty.