Trymore Chapfika v The State; Charles Chirara v The State

Two applicants, Trymore Chapfika (1st applicant) and Charles Chirara (2nd applicant), applied for bail pending trial after being charged with Armed Robbery under s 126(1)(a)(b) of the Criminal Law Codification and Reform Act. On 6 January 2021, the applicants and accomplices allegedly waylaid a ZB Bank cash-in-transit vehicle on the Harare-Chirundu highway at the 60km peg, robbing the crew of USD$2,775,000 using firearms. The stolen cash boxes were transferred to a getaway vehicle (a Toyota Passo) and taken to a farm west of Nyabira where the proceeds were shared. Police recovered USD$38,000 from the 1st applicant (found at his tuck shop and with his mother) after he was implicated by an accomplice. The 2nd applicant, a soldier at 5.2 Infantry Battalion, resisted arrest in Kwekwe. Police recovered USD$67,500 from his wife and sister after he allegedly instructed them to dig up hidden money and relocate from Ushewokunze to Bluff Hill. The 2nd applicant claimed his share was USD$150,000. Both applicants appeared before a magistrate who advised them to apply for bail at the High Court. Neither applicant challenged the allegations at the remand hearing. The investigating officer testified that approximately five accomplices remained at large and investigations were ongoing.

• Whether it was in the interests of justice to grant bail to the applicants pending trial
• Whether the applicants established that they were not flight risks likely to abscond
• Whether the applicants adequately addressed the factors required under s 117(3) of the Criminal Procedure and Evidence Act in their bail applications
• Whether the risk of interference with ongoing investigations justified refusal of bail

Both bail applications dismissed. The two applications (B 93/21 and B 107/21) were consolidated for hearing and judgment. Copies of the composite judgment were ordered to be filed in each of the two records.

In bail applications under s 115C(2)(ii)(A) of the Criminal Procedure and Evidence Act, the applicant bears the onus to show on a balance of probabilities that it is in the interests of justice to grant bail. This onus cannot be discharged through bare allegations unsupported by facts or documentary evidence. The court is statutorily required by s 117(3)(b) to consider specific factors when determining whether an accused is likely to abscond, including: (i) ties to the place of trial; (ii) existence and location of assets; (iii) means of travel and access to travel documents; (iv) nature and gravity of the offence; (v) strength of the prosecution case; (vi) efficacy of bail conditions; and (vii) any other relevant factors. An applicant must directly address each of these mandatory factors with supporting evidence. The failure to do so means the application lacks foundation and cannot succeed. Bail applications must focus on profiling the applicant as a suitable candidate for bail through factual allegations relating to the statutory factors, rather than rehearsing general legal principles on bail that are already known to the court.

Chitapi J made several important observations beyond the strict legal determination: (1) Little purpose is served in bail applications before a High Court judge by applicants seeking to "school the judge" on the law relating to bail - counsel should instead concentrate on adducing facts that demonstrate the applicant is a good candidate for bail. (2) The decision to place an accused on remand is made after the magistrate determines that allegations establish a reasonable suspicion the accused committed the offence. If the accused disagrees with allegations, the challenge should be made before the remand court, not the bail court, as the bail court is not an appeal or review court for remand decisions. (3) For good practice, bail applications should split the statutory factors into subheadings and deal with each individually with supporting documentation where available, and if documentation is unavailable, an explanation should be provided. (4) The court expressed strong criticism of the 2nd applicant's bail statement, describing it as "virtually nothing in the application to build or support the profile of the second applicant as a suitable candidate for bail" and "an example of how not to prepare a bail statement." This amounts to judicial guidance to the legal profession on proper bail application preparation.

This case provides important guidance on the preparation and presentation of bail applications in Zimbabwe. It emphasizes that applicants must specifically address the mandatory factors listed in s 117(3) of the Criminal Procedure and Evidence Act rather than simply reciting legal principles. The judgment serves as a practice directive to legal practitioners that bail applications must be fact-specific and supported by documentary evidence where applicable, addressing each statutory factor individually. The case demonstrates the court's intolerance for poorly prepared bail applications that fail to engage with the statutory requirements. It also clarifies that the bail court is not an appeal or review court for remand decisions, and challenges to allegations should be made before the remand court, not the bail court. The judgment reinforces that in serious cases involving organized crime, flight risk, and strong prosecution evidence, the interests of justice and public confidence in the criminal justice system may outweigh the presumption in favor of bail.