The Attorney General v Robert Allan Bonnel

The 1st Respondent, Robert Allan Bonnel, a South African national, was arrested in Gwanda on 13 January 2011 and faced two charges: (1) contravening Section 33(2)(b) of the Criminal Law Code, Chapter 9:23, and (2) contravening Section 36(1)(b) of the Immigration Act, Chapter 4:02. He was arraigned before a magistrate on 17 January 2011 and remanded in custody. On 26 January 2011, he applied for bail pending trial. In respect of the first charge, no prosecution could proceed without the Attorney General's authority under Section 34 of the Criminal Law Code, and the AG's office indicated it would take several months to consider the matter. Regarding the second charge, the Immigration Department had already fined the 1st Respondent for overstaying and extended his stay by 30 days, meaning he was now legally in the country. The magistrate granted bail, reasoning that it made no sense to keep the accused in custody pending the AG's decision which could take months and might result in no prosecution. The state opposed bail solely on the ground that the accused was a foreigner who might abscond, but provided no evidence to support this claim. The Attorney General appealed the magistrate's decision to grant bail.

• Whether the magistrate erred in granting bail to a foreign national accused
• Whether nationality alone constitutes sufficient grounds to deny bail on the basis of flight risk
• Whether it is appropriate to remand an accused person in custody for an extended period while awaiting the Attorney General's decision on whether to authorize prosecution
• Whether the state adequately established that the accused was a flight risk

The appeal was dismissed. The magistrate's decision to grant bail to the 1st Respondent was upheld.

The binding legal principles established are: (1) Foreign nationality alone, without further evidence, does not automatically establish that an accused person is a flight risk justifying denial of bail; (2) The state must provide concrete evidence to establish flight risk, not merely rely on the fact that an accused is a foreigner; (3) It is contrary to the interests of justice to remand an accused person in custody for an extended period while awaiting the Attorney General's decision on whether to authorize prosecution under Section 34 of the Criminal Law Code, particularly when that process may take several months and may ultimately result in no prosecution; (4) The seriousness of the offence and the likely sentence upon conviction are relevant considerations in assessing whether an accused person has an incentive to abscond.

The court made observations regarding the second charge under the Immigration Act, noting that since the Immigration Department had already dealt with the matter and fined the 1st Respondent before extending his stay by 30 days, the accused was now legally in the country and the second charge would naturally fall off as he could not be prosecuted twice for the same offence. The court also expressed the view that it was never the intention of the legislature to keep accused persons in custody awaiting the decision of the Attorney General whether or not to prosecute. The court noted with apparent disapproval that the state's opposition to bail was "unbelievably brief" and failed to adequately substantiate its grounds for opposition.

This case affirms important principles in Zimbabwean bail jurisprudence: (1) that foreign nationality alone, without supporting evidence, is insufficient to establish flight risk and deny bail; (2) that the state bears the burden of establishing why an accused person is likely to abscond, rather than relying on bare assertions; (3) that it is inappropriate to remand accused persons in custody for extended periods while awaiting administrative decisions (such as the Attorney General's authorization to prosecute) that may take months and potentially result in no prosecution; and (4) that the seriousness of charges and likelihood of conviction and sentence are relevant considerations in determining whether an accused has an incentive to abscond. The case emphasizes the principle that bail should not be used as a form of pre-trial punishment and that the interests of justice may favor release on bail even for foreign nationals when proper safeguards can be put in place.