Thandolwenkosi Tshabalala and Happymore Mpofu v The State

The applicants were charged with robbery as defined in section 126 of the Criminal Law (Codification and Reform) Act. On 26 August 2021 at around 0100 hours, four complainants were asleep in tents at N and N Syndicate Mine when the applicants and co-accused allegedly arrived armed with torches, spears, axes and knives and robbed the complainants of gold ore, 6 cellphones and various items of clothing. On 27 August 2021, police arrested the first accused Lungisani Mpofu, who led them to other suspects including the two applicants. Police seized two vehicles belonging to the applicants: a Mazda Bongo (AFA 2316) and a Mazda B 1600 (ACG 9211). The applicants denied involvement, claiming they were hired drivers. The 1st applicant (aged 30, self-employed driver from Insuza) admitted driving the Mazda B 1600 to the mine on hire but claimed ignorance of the criminal mission. The 2nd applicant (aged 36, a Police Constable at Fairbridge Support Unit Eco troop) admitted driving the Mazda Bongo, claiming Lungisani hired him to transport passengers and collect gold ore. Both maintained they only learned of the robbery after the fact.

• Whether compelling reasons existed to justify the continued detention of the applicants pending trial
• Whether the applicants raised a plausible defence that could reasonably possibly be true
• Whether the applicants, if released on bail, would endanger public safety, fail to stand trial, interfere with witnesses, or undermine the criminal justice system
• The application of section 50(1)(d) of the Constitution of Zimbabwe (Amendment No. 20) 2013 regarding the right to bail

The application for bail was granted in terms of the draft order.

Where an accused person charged with a serious offence raises a plausible defence that is not a bare denial, and the state cannot outright reject that defence or establish compelling reasons justifying continued detention, the accused is entitled to bail in accordance with section 50(1)(d) of the Constitution of Zimbabwe. Pre-trial incarceration cuts across the presumption of innocence, and an accused has a right to remain out of custody pending trial unless, in the interests of justice, their release on bail is likely to endanger the interests of the administration of justice. As a matter of policy and law, courts should lean in favour of individual liberty where possible.

The court observed that if the applicants' defence was not controverted at trial by other evidence linking them to the offence of robbery, the state may very well have difficulty in establishing a solid case against them. The court noted that while there was a certain suspicion that the applicants ought to have known or suspected that their co-accused were engaged in some criminal enterprise, suspicion alone was insufficient to deny bail. The court also noted the personal circumstances of both applicants - that they were men with fixed abode, family men, not flight risks, with the 2nd applicant being a serving police officer - though these observations were not central to the legal reasoning for granting bail.

This case demonstrates the application of Zimbabwe's constitutional right to bail under section 50(1)(d) of the Constitution (Amendment No. 20) 2013 in serious criminal matters. It illustrates the court's approach to balancing the presumption of innocence with the administration of justice, and confirms that even in serious robbery cases carrying potentially lengthy prison terms, bail will be granted where the state cannot establish compelling reasons for continued detention. The case reinforces the principle that courts should lean in favour of individual liberty where possible, and that a plausible defence (not merely a bare denial) can be sufficient to justify bail, particularly where the state concedes the defence cannot be rejected outright. It provides guidance on the evidential threshold required for bail applications in Zimbabwe when accused persons raise defenses involving lack of knowledge or innocent involvement.