Nesbert Musana and Kiven Dzikamai and Tinashe Saungweme v The State

Three applicants were arrested in January 2010 and charged with murder under s 47 of the Criminal Law (Codification and Reform) Act, jointly with two other accused (Valentine Mupotole and Robin Ndlovu). The charges arose from the death of Eric Chaora on 20 January 2010 at Ushewokunze Housing Co-operative office, Waterfalls, Harare, allegedly caused by the accused striking him with open hands, hosepipe and sjambok. The applicants were initially granted bail pending trial by the High Court and had been abiding by their bail conditions. At some point, for unstated reasons, they were removed from remand. On 12 October 2015, they appeared at Harare Magistrates Court where they were indicted for trial before the High Court in terms of sections 65 and 66 of the Criminal Procedure and Evidence Act and were remanded in custody. The trial failed to commence on the scheduled date and was postponed to 25 November 2015. The applicants then applied for bail pending trial, seeking to be remanded out of custody or on $100.00 bail each. The State opposed the application, stating that previous trial dates had failed because the applicants could not be located, and they were only arrested following a tip-off from relatives of other accused persons.

• Whether the applicants had been properly removed from remand in terms of s 320 of the Criminal Procedure and Evidence Act
• Whether the Magistrate erred in remanding the applicants in custody upon their indictment, allegedly contrary to s 322 of the Criminal Procedure and Evidence Act
• Whether the applicants should be admitted to bail pending trial

The application for bail pending trial was dismissed. The applicants were to remain in custody until their trial scheduled for 25 November 2015.

An accused person claiming to have been improperly removed from remand under s 320 of the Criminal Procedure and Evidence Act must substantiate that claim with evidence showing the prosecutor failed to appear on the court day appointed for trial. Section 320 does not apply where accused persons were never previously indicted. Where an accused's conduct demonstrates a pattern of evading arrest and hindering the finalization of a matter, this constitutes sufficient grounds to deny bail pending trial. Co-accused persons should be treated consistently regarding bail applications absent compelling reasons for differentiation.

The court observed that what the applicants should have done was simply apply for bail pending trial without invoking the provisions of s 322, focusing on whether they were proper candidates for bail. The court noted the applicants' vacillating attitude towards finalization of the matter created uncertainty about whether they would avail themselves for trial if admitted to bail. The court also commented that the attack on the magistrate's decision to remand them in custody was unwarranted, as it was proper for the magistrate to indict them in custody in terms of s 66 of the Code.

This case clarifies the proper application of sections 320 and 322 of the Criminal Procedure and Evidence Act in the context of bail applications. It demonstrates that accused persons who claim they were improperly remanded in custody must substantiate their claims with evidence. The case also illustrates the court's discretion to refuse bail where an accused's conduct (such as evading arrest and causing trial delays) suggests they may not appear for trial. It reinforces the principle that co-accused in similar circumstances should generally be treated consistently regarding bail, absent compelling reasons for differentiation.