Taurai Matarirano and Six Others v The State

On 11 December 2018, the seven applicants, acting with eight other persons still at large, allegedly committed armed robbery at Camlark Investments near Mimosa turn-off along the Zvishavane-Bulawayo highway. The applicants allegedly acquired two vehicles (a Toyota Hilux and a Toyota Fan Cargo) and armed themselves with three rifles and pistols. Pretending to be police officers searching for firearms, they allegedly took possession of cellphones from customers at the mine, fired shots, forced people to lie down, killed a guard dog, held Chinese nationals hostage, and stole cash totaling US$8,820, $6,800 (bond), and 2,155 Chinese Yen. They allegedly escaped in a stolen Isuzu King Cab vehicle. Police recovered the stolen vehicle and cellphones through indications made by the applicants. The applicants applied for bail, arguing they were wrongly implicated through confessions extracted by torture from a co-accused, Thulani Isheunesu Nkala, and that the state's case was weak.

• Whether the applicants should be granted bail pending trial
• Whether there are compelling reasons for the continued detention of the applicants
• Whether the interests of justice would be prejudiced by granting bail
• Whether the applicants are likely to abscond if granted bail
• The evidential threshold required by the state in bail proceedings to establish a link between the applicant and the offence

The application for bail pending trial was dismissed.

In bail proceedings, the state is not required to prove its entire case against the applicants, but must establish a causal link between the applicant and the offence. Once such a link is established through credible evidence (such as voluntary indications at the crime scene, recovery of stolen property through the accused's indications, and positive identification by complainants), the applicant bears the burden of setting out the basis of their defense to the allegations. Where an applicant for bail has pending cases of a similar nature, the likelihood of absconding becomes an important consideration. The court retains discretion to refuse bail where it is satisfied that the interests of justice would be jeopardized by granting bail, notwithstanding the constitutional presumption in favor of bail under section 50(1)(d) of the Constitution.

The court observed that both state and defense counsel appeared to have overlooked crucial grounds for opposing bail contained in the Request for Remand (Form 242). The court noted the casual approach taken by defense counsel in simply asserting that arrests resulted from forced confessions that would be inadmissible at trial, without addressing substantive evidence linking the applicants to the crime. The court also remarked that the seriousness of the offense on its own is not a ground for denying bail, reaffirming the principle from S v Biti that courts should always grant bail where possible and lean in favor of the applicant, provided the interests of justice will not be prejudiced. However, this principle must be balanced against considerations of 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.

This case demonstrates the application of constitutional bail rights in Zimbabwe, particularly in serious criminal matters involving armed robbery. It clarifies that while the constitutional right to bail is fundamental, it is not absolute and can be refused where compelling reasons exist. The judgment illustrates how courts balance the presumption in favor of bail against factors such as the strength of evidence linking the accused to the crime, the seriousness of charges, likelihood of absconding (particularly where there are pending similar cases), and the overall interests of justice. It also clarifies the evidential burden on the state in bail proceedings - that the state need only establish a causal link between the applicant and the offense, not prove its entire case, and that once such link is established, the burden shifts to the applicant to provide a credible defense basis.