Thabisa Khumalo and Binary Mkandla v Ntombizodwa Mukondiwa-Mazhandu and The State

On 1 February 2012, the applicants appeared before the 1st respondent, a Bulawayo Provincial Magistrate, jointly charged with fraud under section 136 of the Criminal Law (Codification and Reform) Act. At their initial appearance after arrest, the public prosecutor consented to bail despite the police's initial opposition reflected in Form 242. The 1st respondent granted bail at $100 after confirming with the prosecutor that the state was not opposed. The applicants' relatives paid bail at the Clerk of Court's office, evidenced by Bail Deposit Receipts BR 148924 and 148922. However, prison officers were instructed by the 1st respondent not to release the applicants. The 1st respondent later claimed she had been informed by a colleague that the applicants' relatives alleged they had paid her a $300 bribe to grant bail. Without reconvening the court or informing the applicants' legal practitioner or the prosecutor, the 1st respondent held informal meetings with the applicants' relatives and unilaterally revoked the bail, remanding the applicants in custody. She subsequently recused herself from the matter.

• Whether a magistrate can unilaterally revoke bail after having granted it and becoming functus officio
• Whether a magistrate can deny liberty to accused persons based on unsubstantiated bribery allegations made after bail was granted
• Whether informal proceedings held outside court without the presence of parties and their legal representatives are procedurally proper
• Whether the applicants' fundamental right to liberty was improperly infringed

The application was granted by consent on 6 February 2012. The applicants' bail was upheld and they were entitled to be released. The Deputy Registrar of the High Court was directed to forward a copy of the judgment to the Chief Magistrate.

Once a magistrate grants bail in open court and bail is paid, the magistrate becomes functus officio and cannot unilaterally revoke that bail without proper legal grounds related to the conduct of the accused persons themselves. Unsubstantiated allegations of bribery made against a judicial officer after bail has been granted do not constitute legal grounds to deny accused persons their liberty or to recall and alter a bail decision. Any matter requiring judicial determination, including addressing allegations arising after a court order, must be dealt with in open court with both parties and their legal representatives present, not through informal ex parte discussions. The fundamental right to liberty of a detained person cannot be taken away without proper legal justification and due process.

Ndou J made strong observations about the dangers of the approach adopted by the 1st respondent, noting that magistrates conducting informal discussions outside court on matters that took place in court "can easily lead to anarchy and negatively affect the criminal justice system" and "can easily lead to a breeding ground for corruption." The court expressed concern about the procedural irregularities, including the lack of clarity about how the 1st respondent convened meetings with the applicants' relatives, where such meetings took place, and who attended. The judge also noted the inconsistency in the 1st respondent's explanation to the applicants' legal practitioner (claiming the bribery allegations came from police) versus what appeared in her notes. The direction to forward the judgment to the Chief Magistrate indicates the court's concern about the need for proper training and supervision of magistrates on these fundamental procedural and constitutional issues.

This case is significant in Zimbabwean criminal procedure law as it reinforces the principle of functus officio in bail proceedings and the fundamental nature of the right to liberty. It establishes clear guidelines that once a magistrate has granted bail in open court, that decision cannot be unilaterally revoked without proper legal grounds and without following due process. The case emphasizes the importance of transparency and procedural fairness in criminal proceedings, prohibiting informal ex parte discussions that affect parties' rights. It serves as a warning against judicial conduct that could undermine the criminal justice system and create opportunities for corruption. The judgment highlights the critical importance of protecting accused persons' constitutional rights to liberty and proper legal procedure, even where allegations of impropriety arise.