Robert Martin Gumbura v The State; Blessing Makomborero Chiduke v The State

The two applicants were co-accused inmates at Chikurubi Maximum Security Prison, charged along with six other co-accused with three counts: (1) attempt to escape from lawful custody, (2) incitement/conspiracy to malicious damage to property, and (3) incitement/conspiracy to assault or resist a peace officer. The charges arose from incidents on 13 February 2015 and 13 March 2015 when Robert Martin Gumbura allegedly led protests against prison food quality by inciting inmates to sing and hit cell bars. This escalated to disorder, property damage, officer injuries, warning shots being fired, and some prisoners being shot and killed. Trial commenced on 3 September 2015 with not guilty pleas. After the State closed its case, the accused applied for discharge which was dismissed. They then filed a review application (HC 4098/19) which was argued on 22 January 2020 with judgment reserved. While the review was pending, both applicants applied for bail pending the determination of the review application.

• Whether the High Court has jurisdiction to grant bail pending review of criminal trial proceedings where the accused has not yet been convicted or sentenced
• Whether section 123 of the Criminal Procedure and Evidence Act applies to bail pending review for unconvicted accused persons
• Whether an appeal against refusal of bail is competent when filed without compliance with Rule 6(1)(f) of the High Court Bail Rules 1991
• The proper interpretation of bail provisions in the context of review proceedings

Both applications (Case Nos. B 157/21 and B 136/21) were struck off the roll.

Section 123 of the Criminal Procedure and Evidence Act only applies to persons who have been convicted and sentenced, and does not provide for bail pending review for accused persons who are undergoing trial but have not yet been convicted. The High Court Act's provisions on review powers do not include the power to grant bail pending review of criminal proceedings where no conviction has been entered. An application or appeal for bail must comply with the specific statutory requirements and procedural rules; failure to do so renders the application incompetent and liable to be struck off.

The court observed that technically an accused could note an appeal under section 121(1)(b) against a magistrate's refusal of bail, but such an appeal would be based on the record at the date of the decision appealed against, and would be overtaken by events where trial had commenced, as different considerations apply when applying for bail in the course of trial (including prospects of conviction or acquittal). The court noted that continuation of trial proceedings stands stayed pending review, though the institution of review proceedings does not automatically suspend proceedings unless a stay is granted. The judge also commented on consolidating the applications for efficiency given the common factual and legal issues.

This case clarifies the limitations on bail applications in the context of review proceedings in Zimbabwean criminal procedure. It establishes that the statutory provisions for bail pending appeal or review under section 123 of the Criminal Procedure and Evidence Act only apply to convicted and sentenced persons, not to accused persons whose trial is under review but who have not yet been convicted. The judgment highlights the procedural requirements for bail applications and appeals, and emphasizes that courts cannot grant relief not provided for by statute. It demonstrates the importance of proper procedural compliance with the High Court Bail Rules and the distinction between bail pending trial, bail during trial under review, and bail pending appeal after conviction.