Nyamutata Moreblessing Anesu v The State

The applicant, a 28-year-old female resident of Epworth, Harare, applied for bail pending trial on charges of 4 counts of robbery and 1 count of attempted robbery as defined in s 126 of the Criminal Law (Codification and Reform Act). The alleged offences were committed between 19 April 2018 and 14 May 2018, acting in concert with two accomplices, Thulani Ndlovu and Last Sithole. The robberies involved robbing complainants of their motor vehicles using threats and violence around Harare and Chitungwiza. In two counts, the applicant allegedly drove away the stolen vehicles. She was arrested whilst driving one of the stolen vehicles. The applicant had previous convictions from 2014 for 3 counts of robbery, for which she received a total sentence of 21 years imprisonment (with 5 years suspended), and had been released on presidential amnesty in 2016. The applicant failed to disclose these previous convictions in her bail application. The state also initially made false allegations that the applicant had been released under the March 2018 presidential amnesty, which was later retracted.

• Whether the applicant should be granted bail pending trial considering the seriousness of the charges and previous convictions
• Whether the court should summarily convict and sentence the applicant for willful non-disclosure of previous convictions contrary to s 117A(5) read with s 117A(8) of the Criminal Procedure and Evidence Act
• The procedural requirements for prosecuting non-disclosure of previous convictions in bail applications
• The weight to be given to previous convictions and non-disclosure in bail determinations

The bail application was refused. The state's application for the court to summarily deal with the applicant for contravention of s 117A(5) as read with s 117A(8) of the Criminal Procedure and Evidence Act was non-suited for procedural irregularity.

A bail court does not have jurisdiction to summarily convict and sentence an applicant for wilful non-disclosure of previous convictions contrary to s 117A(5) read with s 117A(8) of the Criminal Procedure and Evidence Act. While these sections impose a duty to disclose and create an offence for non-disclosure, they do not authorize summary determination by the bail court. Such an offence must be prosecuted separately by the state with the normal burden of proof beyond reasonable doubt. However, the bail court is entitled to consider the non-disclosure adversely against the applicant in determining whether to grant bail. Where an applicant has previous convictions for the same serious offences for which bail is sought, fails to disclose those convictions, and the evidence strongly links them to the new offences, compelling reasons exist to deny bail as admission would bring the administration of justice into disrepute.

The court made several obiter observations: (1) Police conduct in providing false information to courts is "despicable and abhorrent" and undermines judicial confidence in police testimony, potentially resulting in dangerous suspects being released on bail; (2) While female suspects are ordinarily considered less likely to abscond due to familial ties, this generalization does not apply where facts reveal the female accused has shown tendencies toward serious crime; (3) The seriousness of an offence, while not solely determinative of bail, is a factor of great impact because the prospect of heavy penalty creates incentive to abscond; (4) Courts have a duty to assist unrepresented litigants to ensure they are not prejudiced by inability to properly present their case; (5) Limited circumstances exist for courts to suspend main proceedings to summarily determine ancillary criminal matters, such as contempt in facie curiae, but bail proceedings do not fall within these circumstances.

This case provides important guidance on the procedural requirements for dealing with non-disclosure of previous convictions in bail applications under Zimbabwean criminal procedure law. It clarifies that bail courts cannot summarily convict and sentence applicants for wilful non-disclosure under s 117A(5) and s 117A(8) of the Criminal Procedure and Evidence Act, but must leave such prosecution to the state through separate proceedings. The case also demonstrates how courts approach bail applications involving repeat offenders charged with serious crimes, and emphasizes the duty of bail applicants to disclose previous convictions as a peremptory requirement. It further addresses the court's responsibility to assist unrepresented litigants and highlights concerns about police providing false information to courts.