The applicants were charged with two counts of contravening section 126 of the Criminal Law (Codification and Reform) Act [Chapter 9:23] (armed robbery). On 27 April 2012, the applicants and two others allegedly proceeded to TZ Supermarket, Emakhandeni, Bulawayo, fired a warning shot, ordered complainants to lie down, and stole US$600 in cash. On 1 May 2012, the applicants and co-accused allegedly went to Macy Line Lodge, pretended to be clients, produced a pistol, threatened employees, stole US$311 and four mobile phones, locked employees in a room, fired one shot and attempted to flee in a taxi before escaping on foot. The applicants, both married commuter omnibus drivers, denied the allegations and claimed they were wrongly implicated. Their co-accused Michael Bhekinkosi Ndiweni provided an affidavit stating he only implicated the applicants after being assaulted by police and forced to confess.
The application for bail pending trial was dismissed.
In bail proceedings involving serious offences such as armed robbery with firearms, the court must consider: (1) the nature and gravity of the offence; (2) the strength of the case for the prosecution; (3) the likelihood of absconding based on potential lengthy sentences; and (4) the substantive nature of the defence raised. Where applicants face multiple counts of armed robbery with strong evidentiary links (including ballistic evidence, positive identification, and voluntary indications at crime scenes), and offer only bare denials as defence, they are not suitable candidates for bail. The court may consider a wide range of information in bail proceedings, including hearsay evidence, affidavits, and written reports, as provided under section 117A(4) of the Criminal Procedure and Evidence Act.
The court observed that affidavits from co-accused persons attempting to exonerate other accused are of little weight and value, particularly where they fail to provide reasonable explanations for their conduct (such as why only certain individuals were implicated). The court noted that bail proceedings differ fundamentally from criminal trials in terms of the types of evidence that may be considered, citing Attorney General v Mapanga Nhachi 2009(2) ZLR 150(S) for the proposition that courts have a wide range of information sources available, including hearsay evidence, when determining bail applications.
This case illustrates the application of bail principles in Zimbabwe (applicable to South African context through similar common law principles) regarding serious violent crimes involving firearms. It demonstrates how courts weigh the seriousness of armed robbery offences, the strength of prosecution evidence, and the risk of absconding when determining bail applications. The judgment reinforces that bare denials without substantive defence are insufficient to overcome strong State evidence in bail proceedings, particularly for offences carrying substantial potential sentences.