Meng Dong and Legwan Mavhunga v The State

The appellants were charged with bribery in contravention of s 170 of the Criminal Law (Codification and Reform) Act. On 12 May 2021, the second appellant contacted the investigating officer in a fraud case involving the first appellant, requesting a meeting. On 13 May 2021, the second appellant visited the investigating officer at his workplace and offered money to destroy evidence and ensure the first appellant's removal from remand. The investigating officer confirmed this with the first appellant telephonically and informed his superiors, who set a trap. On 16 May 2021, the appellants handed over USD1480 to the investigating officer and were immediately arrested. On 19 May 2021, the magistrate's court denied them bail, citing that they had a case to answer, were on bail in other matters, had a strong case against them, and their conduct suggested they could commit further First Schedule offences. The magistrate conducted no inquiry into whether appellants would interfere with investigations or witnesses but concluded their conduct "speaks volumes".

• Whether the magistrate misdirected himself in denying bail
• Whether having 'a case to answer' is a valid ground for denying bail
• Whether the magistrate properly considered the presumption of innocence
• Whether the magistrate properly applied the factors for granting or denying bail under s 117 and s 117A of the Criminal Procedure and Evidence Act
• Whether pending cases in unrelated matters constitute compelling reasons to deny bail
• Whether the magistrate's failure to conduct an inquiry into likelihood of interference with witnesses constituted an irregularity

The decision of the magistrate was set aside. The appellants were admitted to bail pending trial on the following conditions: (1) deposit RTGS$5000 with the Clerk of Court, Harare; (2) first appellant to reside at 408 Borrowdale Brooke, Harare; (3) second appellant to reside at 14513 Unit O Seke, Chitungwiza; (4) first appellant to report once weekly every Friday at Borrowdale Police Station between 6:00 am and 6:00 pm; (5) second appellant to report once weekly every Friday at St Mary's Police Station between 6:00 am and 6:00 pm; (6) appellants not to interfere with state witnesses and investigations.

A court commits a misdirection when it denies bail on the basis that the accused has 'a case to answer', as this is not a ground for denying bail under s 117 and s 117A of the Criminal Procedure and Evidence Act. A court commits an irregularity when it concludes that an accused will interfere with investigations or witnesses without conducting a proper inquiry into this issue. Pending criminal cases in unrelated matters do not constitute compelling reasons to deny bail, particularly where there is no evidence that the accused is likely to commit further First Schedule offences. The factors for granting or denying bail must be applied strictly in accordance with the statutory provisions in s 117 and s 117A of the Criminal Procedure and Evidence Act. An appeal against refusal of bail can only succeed where the court a quo committed an irregularity or misdirection, or exercised its discretion so unreasonably as to vitiate its decision.

The court noted that while it is true that the alleged offence was committed while appellants were already on bail for other offences and amounts to an attempt to interfere with witnesses, this does not automatically mean they will interfere if released, especially given that state witnesses are now on alert to guard against further transgressions. The court also observed that on appeal, it cannot act as a court of first instance and must confine its decision to issues raised and findings made by the court a quo. Therefore, issues raised by the respondent on appeal (such as abscondment) that were never raised or dealt with by the magistrate could not be considered. The court reaffirmed the principle from Attorney General v Phiri that courts must safeguard the liberty of a person while protecting the interests of justice.

This case reinforces important principles in Zimbabwean bail jurisprudence, particularly that: (1) whether an accused has 'a case to answer' is not a valid ground for denying bail; (2) courts must conduct proper inquiries before making findings on likelihood of interference with witnesses or investigations; (3) the presumption of innocence must be given proper weight in bail applications; (4) pending cases in unrelated matters do not constitute compelling reasons to deny bail; (5) courts must strictly apply the statutory factors prescribed in s 117 and s 117A of the Criminal Procedure and Evidence Act when considering bail; and (6) courts must safeguard liberty while protecting the interests of justice. The case demonstrates the narrow grounds on which bail can be denied and the importance of procedural fairness in bail determinations.