Panashe Dean Tarubinga v The State

The applicant, a 22-year-old employed at a car wash in Hillside, Bulawayo, was charged with theft of a motor vehicle. On 20 April 2021, a complainant left his vehicle at the car wash to be cleaned. The applicant, who was in possession of the car keys, drove away the vehicle unnoticed. He was arrested on 27 April 2021 in Harare in possession of the vehicle. He had removed the third number plate from the windscreen and disposed of it. The applicant was initially convicted on a plea of guilty and sentenced to five years imprisonment (with one year suspended). On 8 September 2021, the High Court reviewed and set aside the conviction, ordering a trial de novo. The applicant was in custody awaiting trial and applied for bail pending trial. His father offered to stand surety and ensure compliance with bail conditions.

• Whether the applicant should be granted bail pending trial
• Whether section 115C(2)(a)(ii)A of the Criminal Procedure and Evidence Act, which shifts the burden of proof to an accused charged with offences in Part II of the Third Schedule, is ultra vires the Constitution of Zimbabwe
• Whether exceptional circumstances exist to warrant the applicant's release on bail in the interests of justice
• Whether the applicant poses a flight risk

The application for bail pending trial was dismissed. The applicant was ordered to remain in custody.

The binding legal principles established are: (1) Legislative provisions that place the burden of proof on an accused person in bail applications for offences specified in Part II of the Third Schedule to the Criminal Procedure and Evidence Act remain valid and enforceable until declared constitutionally invalid by a competent court through the proper constitutional procedure. Courts must give full effect to such provisions until they are struck down. (2) In assessing whether a bail applicant will abscond, the court is entitled to consider the nature and gravity of the offence, the likely penalty upon conviction, the strength of the prosecution's case, and the corresponding incentive of the accused to flee. (3) Where there is a cognisable indication that an accused person would evade trial if released from custody, the bail court serves the interests of justice by refusing bail, and the liberty of the accused must give way to the proper administration of justice. (4) Previous conviction and sentencing (even if set aside on review) is a relevant factor in assessing flight risk, as it makes the accused aware of the reality and likely penalty of conviction, creating an incentive to abscond.

The court made non-binding observations regarding the efficacy of surety undertakings by family members. The court observed that a father's undertaking to ensure compliance with bail conditions is "inconsequential" where the applicant is an adult, as the father cannot place the applicant under 24-hour guard or surveillance and "there is absolutely nothing that his father will do if applicant decides to abscond." This reflects judicial skepticism about the practical value of family surety arrangements in preventing absconding by adult accused persons. The court also noted, obiter, that the State does not need to show a "water tight case" against an applicant in bail proceedings, but rather must demonstrate a "strong prima facie case." The court's discussion of the applicant's proposed defense (that he only intended to enjoy himself with the vehicle and would plead guilty to the lesser charge of driving without consent) was not determinative of the bail decision, but the court implicitly rejected this as undermining the strength of the case against him.

This case is significant in Zimbabwean criminal procedure law for several reasons: (1) It affirms the validity and enforceability of statutory provisions that reverse the onus of proof in bail applications for serious offences listed in Part II of the Third Schedule to the Criminal Procedure and Evidence Act, even in the face of constitutional challenges, until such provisions are formally declared invalid by a competent court. (2) It demonstrates the court's approach to assessing flight risk in bail applications, particularly where an accused has previously been convicted and sentenced (even if set aside on review) and is therefore aware of the likely penalty. (3) It illustrates the limitations of surety undertakings, particularly from family members, in satisfying bail conditions for adult accused persons facing serious charges. (4) It reinforces the principle that the liberty of an accused person must give way to the proper administration of justice where there is a cognisable indication that the accused would evade trial if released.