Peter Mushipe and Master Katsanza and Killian Shonhiwatagarira and Vestor Maretekwa v The State

Four applicants were charged with robbery as defined in s 126 of the Criminal Law (Codification and Reform) Act. In count one, on 2 January 2015, the applicants and accomplices allegedly attacked Verbena Freight Company using a pistol, forced security guards into a container, stole their cellular phones, removed wheels and batteries from motor vehicles, and stole a computer and workshop tools. In count two, on 14 February 2015 at around 0130 hours, the applicants allegedly raided premises at 6548-50 Southlea Park, held a security guard at gunpoint, and stole wheels, batteries, fuel, and the guard's cellular phone. The first applicant was arrested first, leading to the arrest of the others. Some stolen tyres and tools were recovered following police action with the first and second applicants. The third and fourth applicants were arrested after being lured to Machipisa by police using the first and second applicants. The first and second applicants allegedly evaded arrest for about five months by changing residences before being arrested in July 2015.

• Whether the applicants should be granted bail pending trial under section 117 of the Criminal Procedure and Evidence Act
• Whether there was a risk that the first and second applicants would abscond if released on bail
• Whether the applicants would interfere with investigations or witnesses if released on bail
• How to balance the constitutional rights of accused persons (sections 50(6) and 70(1)(a) of the Constitution) with the need to ensure the administration of justice
• Whether different applicants charged in the same case should be treated differently for bail purposes based on their individual circumstances

1. The application for bail by the first and second applicants was dismissed. 2. The third and fourth applicants were admitted to bail pending trial on conditions including: depositing US$100 each with the Clerk of Court; residing at specified addresses; reporting weekly at Waterfalls Police Station on Fridays between 0600 and 1800 hours; and not interfering with State witnesses or evidence.

In determining bail applications under section 117 of the Criminal Procedure and Evidence Act, courts must balance the constitutional rights of accused persons (particularly those under sections 50(6) and 70(1)(a) of the Constitution) against the need to uphold the administration of justice. Co-accused persons may be treated differently for bail purposes based on their individual circumstances, including the strength of evidence against each of them and their individual risk profiles. In assessing risk of abscondment, courts must consider: the seriousness of the charge and likely punishment; the strength of the State's case; the accused's previous conduct (including any attempts to evade arrest); and whether the accused has demonstrated stable residential circumstances. Where an accused facing serious charges involving firearms has allegedly evaded arrest by changing residences, has not shown title to their claimed residence, and there is strong evidence linking them to the offence, there is a genuine risk of abscondment that justifies refusing bail to protect the administration of justice.

The court noted that while the State's attitude toward bail is not binding on the court, it is a relevant consideration to be taken into account. The court also observed that given the seriousness of the allegations involving armed robbery, even for the third and fourth applicants who were admitted to bail, the deposit amount should be increased to US$100 (from what was presumably a lower amount requested) to ensure compliance with bail conditions.

This case demonstrates the application of section 117 of the Criminal Procedure and Evidence Act in bail determinations, particularly in cases involving serious offences like armed robbery. It illustrates how courts must balance constitutional rights to liberty and the presumption of innocence with considerations of the administration of justice. The case is significant for showing that co-accused in the same case may be treated differently for bail purposes based on their individual circumstances and the strength of evidence against each of them. It also confirms that the State's attitude toward bail, while not binding, is a relevant consideration, and demonstrates the practical application of the test for risk of abscondment established in S v Jongwe.