Tapiwa Makore v The State

On 25 September 2020, the applicant was arrested and charged with murder under s 47 of the Criminal Law (Codification and Reform) Act. He was placed on remand on 29 September 2020 and advised to apply for bail at the High Court as he was facing a third schedule offence. The charges related to the murder of a 7-year-old child in what was described as a gruesome killing. The State alleged that the applicant was the mastermind behind the crime, that the deceased was kept in the applicant's house prior to death, that the applicant led police to recover a small animal tail allegedly used to dip into the deceased's blood while making incantations, and that he attempted to conceal evidence by directing co-accused Maud Hunidzarira to wash blood-stained mats. Blood-stained white trousers were found in the applicant's kitchen, though these belonged to co-accused Tafadzwa Shamba. Two of his co-accused, Thanks Makore and Maud Hunidzarira, had previously been granted bail. The applicant was 58 years old, had a family, and was of fixed abode.

• Whether the applicant should be granted bail pending trial despite facing a third schedule offence of murder
• Whether the seriousness of the offence alone can justify refusal of bail
• Whether there is a likelihood that the applicant would abscond if released on bail
• Whether differential treatment of co-accused persons in bail applications is justified
• Whether granting bail would be in the interests of justice
• The application of the constitutional presumption of innocence and the right to bail under s 50(1)(d) and s 70(1)(a) of the Constitution

The application for bail pending trial was dismissed.

While the seriousness of an offence alone cannot justify refusing bail, when the seriousness of the charge is considered together with other factors including (i) the strength of the State's case and likelihood of conviction, (ii) the severity of the potential sentence, and (iii) the consequent incentive to abscond created by that potential sentence, bail may properly be refused under s 117(2)(a)(ii) of the Criminal Procedure and Evidence Act. Co-accused persons need not be treated identically in bail applications where there are cogent reasons to differentiate them based on the nature and extent of their respective involvement in the alleged offence and the strength of evidence against each. The court must balance the constitutional rights of the accused (presumption of innocence and right to liberty pending trial) against the interests of justice, including maintaining public confidence in the criminal justice system.

The court observed that granting bail in this case would lead the public to lose confidence in the criminal justice system, suggesting that public perception is a relevant consideration in bail determinations in cases involving particularly heinous crimes against children. The court also noted that confessions by an accomplice have no probative value against another accused person, though this principle was not central to the determination of the bail application.

This case illustrates the Zimbabwean High Court's approach to bail applications in serious criminal matters, particularly murder cases involving heinous circumstances. It demonstrates that while seriousness of an offence alone cannot justify refusing bail, when combined with other factors such as the strength of evidence, the likely severity of sentence, and the consequent incentive to abscond, bail can properly be refused. The case also establishes that co-accused persons need not be treated identically in bail applications where there are cogent reasons to differentiate them based on their respective roles and the evidence against each. The judgment emphasizes the balancing exercise between constitutional rights (presumption of innocence and right to liberty) and the interests of the criminal justice system, including public confidence in the system.