On 5 November 2010, applicant together with Raphael John Masuku allegedly hatched a plan to steal a Toyota Hiace Registration number ABQ 7743 which was in the possession of Enock Nyirenda, a motor mechanic. Applicant, who was known to Nyirenda, borrowed the vehicle on the pretext of using it to tow his motor vehicle from Drill Hall, Bulawayo. Instead, he took it to Masuku and they made duplicate keys before returning it to Nyirenda. Applicant then purchased an accident damaged Toyota Hiace shell from Nephat Sibanda. Using the duplicate keys, applicant and Masuku stole Nyirenda's Toyota Hiace during the night. They clothed the shell obtained from Sibanda with new particulars and uplifted the registration book from the Vehicle Inspection Department. Richard Maunganirwa etched a fake engine number to falsify the true identity of the stolen vehicle. Applicant then sold this "new look" Toyota Hiace to Theresa Michael Bell in exchange for a BMW and an unregistered Suzuki Commuter. Applicant was charged with contravention of section 113 of the Criminal Law Codification and Reform Act (theft of a motor vehicle) and applied for bail pending trial.
The bail application was dismissed.
The seriousness of an offence per se, without other factors, cannot serve as a justifiable reason to deprive a suspect of freedom, given the need to uphold and respect the constitutional right of every citizen to liberty. However, bail may be refused where: (1) the applicant played a central role in planning and executing the alleged offence, (2) there is sufficient evidence for the State to secure a conviction, and (3) considering the potential sentence upon conviction, the applicant is unlikely to avail himself for trial.
The court observed that courts should be slow in depriving suspects of their liberty, emphasizing the importance of the hallowed constitutional right to liberty. This general observation underscores the constitutional framework within which bail applications must be determined, even though it did not form the basis of the decision in this particular case.
This case reinforces the principle in Zimbabwean criminal procedure that while seriousness of an offence alone does not justify denial of bail (in recognition of the constitutional right to liberty), courts may refuse bail where there is strong evidence of guilt and the applicant's central role in the alleged offence suggests a likelihood of absconding given the potential severe sentence upon conviction. The case demonstrates the balancing exercise courts must undertake between protecting the constitutional right to liberty and ensuring accused persons avail themselves for trial.