Taurai Matarirano and 6 Others v The State

Seven applicants were charged with armed robbery under section 126 of the Criminal Law Codification and Reform Act. On 11 December 2018, the applicants, acting with eight others still at large, acquired two vehicles including a Toyota Hilux and Toyota Fan Cargo. Armed with rifles and pistols, they proceeded to Camlark Investments at Mimosa turn-off along the Zvishavane-Bulawayo highway. Pretending to be police officers searching for firearms, they fired a shot in the air, ordered people to lie down, and stole cellphones from customers. They force-marched security guards to Chinese personnel residences, shot and killed a dog, held Chinese nationals hostage, locked them in a room, and stole cash amounting to US$8,820, $6,800 bond notes, and 2,155 Chinese Yen. They escaped in a stolen Isuzu King Cab. Police recovered the vehicle and cellphones through indications made by the applicants. Some applicants were also linked to other robbery cases at CID Lupane, Inyathi, Mashava, and Shurugwi.

• Whether the applicants were suitable candidates for bail pending trial
• Whether there were compelling reasons to deny bail under section 50(1)(d) of the Constitution
• Whether the interests of justice would be prejudiced by granting bail
• Whether the likelihood of absconding existed given pending similar charges
• What constitutes sufficient causal link between accused persons and the offence in bail applications

The application for bail pending trial was dismissed.

In bail applications, the state is not required to prove its case against the applicants but must establish a causal link between the applicant and the offence. Once such a link is established, the applicant is expected to set out the basis of their defence to the allegations. Where the court is satisfied that the interests of justice would be jeopardized by the granting of bail, the court in its discretion will refuse bail. Relevant factors include: (1) evidence linking the accused to the offence through voluntary indications and recovery of stolen property; (2) the existence of pending similar charges which increases likelihood of absconding; (3) the seriousness of charges and likelihood of long custodial sentences; and (4) whether the applicant has adequately rebutted the evidence against them or provided details supporting their defence claims.

The court observed, citing S v Biti 2002 (1) ZLR (H), that the primary question for consideration in bail applications is whether the applicant will stand trial or abscond, and whether the applicant will influence the fairness of the trial by intimidating witnesses or interfering with evidence. The court should always grant bail where possible and should lean in favour of the applicant provided the interests of justice will not be prejudiced. The court also noted that the seriousness of the offence on its own is not a ground for denying a suspect bail pending trial. The court commented on the casual approach taken by defence counsel who simply argued that arrests resulted from forced confessions that would be inadmissible at trial, without addressing the substantive evidence linking the applicants to the offence, including recovered property and voluntary indications at the crime scene.

This case demonstrates the application of constitutional bail provisions under section 50(1)(d) of the 2013 Constitution of Zimbabwe, balancing the constitutional right to bail against compelling reasons for detention. It illustrates the factors courts consider when determining bail applications in serious criminal matters, particularly armed robbery cases. The judgment clarifies the evidentiary burden in bail applications - that the state must establish a causal link between the applicant and the offence, while the applicant must provide a substantive basis for their defence. It also emphasizes that pending similar charges increase the likelihood of absconding, which is a relevant consideration in bail determinations. The case reinforces that while seriousness of the offence alone is insufficient to deny bail, it remains a relevant factor when combined with other considerations such as risk of absconding and interference with justice.