Tafadzwa Takawengwa and Crispen Kado and Daniel Kademba v The State

The three applicants were charged with robbery committed in aggravating circumstances under s126 of the Criminal Law (Codification & Reform) Act. On 22 October 2020, a complainant travelling from Harare to Mozambique in a Honda Fit vehicle carrying USD$248,664 was robbed near Headlands. Five occupants in a Toyota Wish vehicle forced the Honda Fit to stop by firing a pistol shot, then robbed the complainant of the cash and two cell phones. Investigations revealed that a police service pistol (serial No. ZRP 1674) on issue to the second applicant (and used by both the second and third applicants, who were police officers) matched spent cartridges recovered at the robbery scene. Fingerprints from the scene matched the applicants' fingerprints, and an accomplice implicated them. The first applicant was a small-scale miner; the second and third were police officers based at Rhodesville police station. They were remanded in custody on 14-15 January 2021 and applied for bail pending appeal.

• Whether the applicants had discharged the onus of proving on a balance of probabilities that it was in the interests of justice to grant them bail
• Whether the applicants were likely to abscond given the seriousness of the offence and the strength of the prosecution's case
• Whether the applicants properly addressed the factors set out in s 117(3)(b) of the Criminal Procedure and Evidence Act regarding likelihood of absconding
• The proper role of the bail court in relation to allegations made at the remand stage

The bail application pending appeal was dismissed.

Where bail is opposed on the grounds that an accused is likely to abscond, the applicant bears the onus under s 115C of the Criminal Procedure and Evidence Act to prove on a balance of probabilities that it is in the interests of justice to grant bail. The applicant must specifically address each of the factors set out in s 117(3)(b), including: ties to the place of trial, existence and location of assets, means of travel and access to travel documents, the nature and gravity of the offence and likely penalty, the strength of the prosecution's case and corresponding incentive to abscond, and the efficacy of bail conditions. Failure to plead material information addressing these factors means the court cannot determine that it is in the interests of justice to grant bail. The bail court is not a review or appeal court for remand decisions; unchallenged allegations made at the remand stage stand as settled matters and the bail court will treat them as such.

The court observed that when a police officer offends the law which he or she is supposed to safeguard and becomes a villain instead of a defender of the law, the court takes a serious view of the matter. The court noted that an arrest and charging are different processes - it is only upon being charged that an accused appreciates the enormity of the crime and his precarious position, so the fact that applicants did not resist arrest does not mean they will not abscond trial. The court also commented that the description of the offence as "armed robbery" is colloquial and not provided for in the Criminal Law (Codification & Reform) Act - the proper description is robbery committed in aggravating circumstances.

This case clarifies important procedural aspects of bail applications in Zimbabwe, particularly: (1) the onus on applicants to address specific statutory factors in s 117(3)(b) when bail is opposed on grounds of likely absconding; (2) the limited role of the bail court in reviewing remand court decisions - the bail court cannot act as an appeal or review court for remand decisions, and unchallenged remand allegations stand as settled; (3) the approach courts take when police officers are accused of serious crimes, particularly where they have allegedly abused their positions; and (4) the importance of properly pleading material facts necessary for the court to exercise its discretion in bail applications.