Solomon Madzore and Taruvinga Lovemore Magaya v The State

The two applicants were charged with murder as defined in section 47 of the Criminal Law Codification and Reform Act. It was alleged that the accused, together with others (some already arrested), were requested by police to disperse their gathering as it was not sanctioned. The accused and others allegedly started shouting at police and throwing stones, empty bottles, steel frames and other missiles at uniformed officers, resulting in Inspector Petros Mutedza being struck and pronounced dead upon arrival at hospital. The first applicant, Solomon Madzore, was a National Youth Leader of MDC-T and holder of a valid passport who had travelled extensively across borders. He was aware police were looking for him but continued travelling outside the country before being arrested at home. The second applicant, Taruvinga Lovemore Magaya, had not been shown to have travelled outside the country or evaded police. Some co-accused facing the same charges had been granted bail by the High Court while others were denied.

• Whether the first applicant should be granted bail pending trial
• Whether the second applicant should be granted bail pending trial
• Application of section 117 of the Criminal Procedure and Evidence Act [Cap 9:07] regarding bail entitlement
• Whether there was likelihood that the applicants would abscond trial if released on bail
• Whether the applicants posed a flight risk
• Whether granting bail would jeopardize the objectives or proper functioning of the criminal justice system

The bail application of the first applicant, Solomon Madzore, was dismissed. The bail application of the second applicant, Taruvinga Lovemore Magaya, was granted on the following conditions: (1) deposit US$500 with Clerk of Court, Harare Magistrate Court Rotten Row as bail money; (2) reside at Number 918 Kambuzuma Section 3 Harare until the case is finalized; (3) report once a week at Harare Central Law and Order C.I.D. every Monday between 6:00 am and 6:00 pm until the case is finalized; (4) not interfere with, threaten or intimidate State witnesses until the case is finalized.

When determining bail applications under section 117 of the Criminal Procedure and Evidence Act, courts must assess each applicant individually even when they are jointly charged with the same offence. It is not necessary to prove all factors listed in section 117(2) - if one or more factors are established against an applicant, detention may be in the interest of justice. An applicant who is a flight risk, demonstrated by holding a valid passport, being well-travelled, having evaded police while aware they were seeking him, and facing serious charges with likelihood of lengthy imprisonment, should be denied bail as granting bail would jeopardize the objectives and proper functioning of the criminal justice system. Conversely, an applicant who is not a flight risk, has limited capacity to travel, is of fixed abode, and has not been shown to evade police may be granted bail despite facing serious charges, as the presumption of innocence and individual liberty must be balanced against the interests of justice.

The court observed that the criminal hallmark that an accused is presumed innocent until proven guilty is buttressed in section 117 of the Criminal Procedure and Evidence Act. The court noted that courts should always grant bail pending trial where possible and should lean in favor of the liberty of the accused provided the interests of justice will not be prejudiced. The court commented that courts are required to expeditiously fulfill their function of safeguarding the liberty of the individual while simultaneously protecting the interests of justice. The central question in bail applications is whether the accused will stand trial or evade it. The court observed that individual circumstances of each applicant come into play when balancing individual liberty and interests of justice, which explains why some co-accused on the same charge are granted bail while others are denied.

This case illustrates the application of the bail framework under Zimbabwean criminal procedure law, particularly section 117 of the Criminal Procedure and Evidence Act. It demonstrates that jointly charged accused persons must be assessed individually for bail purposes based on their specific circumstances, even when facing the same charges. The case establishes that while uniformity in treatment is important, individual factors such as flight risk, previous conduct, ability to travel, and likelihood of evading trial must be separately evaluated for each applicant. It reinforces the principle that courts must balance the presumption of innocence and individual liberty against the interests of justice and the proper functioning of the criminal justice system.