Simelweyinkosi Dube v The State

The applicant was charged with robbery as defined in section 126 of the Criminal Law (Codification and Reform) Act involving the use of firearms. On 8 September 2021 at around 0450 hours, the applicant allegedly, together with seven others armed with pistols, a machete and a knife, robbed complainants of US$32,078.00 and two cell phones, totaling US$32,240.00. Nothing was recovered. The applicant was arrested on 24 November 2021. At arrest, he attempted to flee and tried to disarm police officers, resulting in him being shot in the back of the thigh. He led police to the recovery of a firearm. A co-accused, Eric Mathema, in his warned and cautioned statement implicated a person called 'Mthe' (the applicant's pseudo name) in the commission of the offence. Stolen cell phones were recovered during the apprehension of the applicant and co-accused. The investigating officer testified that the applicant had multiple pending armed robbery cases, some committed while on bail, and had defaulted court with warrants of arrest issued against him.

• Whether it was in the interests of justice to release the applicant on bail pending trial in respect of a Schedule 3 offence involving use of a firearm
• Whether the applicant discharged the onus of proving on a balance of probabilities that his release on bail would be in the interests of justice
• Whether there was a likelihood that the applicant would abscond if released on bail
• Whether there was a likelihood that the applicant would endanger public safety or commit further offences if released on bail
• Whether the applicant's previous conduct on bail and court defaults were relevant to the bail determination

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

In bail applications involving Schedule 3 offences (robbery with use of a firearm), the applicant bears the burden of proving on a balance of probabilities that it is in the interests of justice to be released on bail, as provided in section 115C(2)(a)(ii)(A) of the Criminal Procedure and Evidence Act. The interests of justice do not permit release where section 117(2) grounds are established, including where there is a likelihood that the accused will endanger public safety or commit further Schedule 1 offences. An accused's previous conduct while on bail, including commission of further offences and defaulting court, is directly relevant to the determination of whether he will abscond or commit further offences if released. Where the State has a strong prima facie case and the offence is serious with likely severe penalty, there is a strong incentive for the accused to abscond. An accused who demonstrates a propensity to commit offences while on bail poses a danger to public safety, and his release would undermine the proper functioning of the criminal justice system and the bail institution.

The court observed that it was inconsequential that the co-accused Eric Mathema was released on bail, as their circumstances were very different. The court noted that releasing the applicant on bail would bring the criminal justice system into serious disrepute. The court also commented that for purposes of a bail application, evidence from a co-accused's statement may be taken into consideration against another accused during bail proceedings. The court remarked that the applicant's denial in his bail statement and affidavit carried little persuasive weight given the facts of the case and the investigating officer's evidence. The court observed that much would depend at trial on how the evidence linking the applicant to the crime fits with other pieces of the jigsaw, suggesting the prima facie assessment at bail stage is preliminary and subject to fuller examination at trial.

This case is significant in Zimbabwean criminal procedure law as it demonstrates the strict approach courts take to bail applications in serious Schedule 3 offences involving firearms. It illustrates the heightened burden on applicants in such cases and confirms that the interests of justice test encompasses consideration of: the strength of the State's prima facie case, the seriousness of the offence and likely penalty, the accused's criminal history and conduct while on previous bail, the risk to public safety, and the likelihood of further offending. The judgment emphasizes that an accused's propensity to commit offences while on bail and previous defaults of court are highly relevant factors that can be determinative in refusing bail. It also confirms that evidence from co-accused statements can be considered in bail proceedings, and that the court can draw inferences from an accused's conduct at arrest regarding likelihood of abscondment.