Trymore Yemurai v The State

The appellant was accused No. 5 in a robbery case before a provincial magistrate, charged alongside four alleged accomplices under s 126 of the Criminal Law (Codification & Reform) Act. The alleged robbery occurred at Equity House where the accused allegedly pretended to be gold customers, threatened the complainant with an electric shocker, tied him up, stole US$2,215 from a safe and two cell phones. Three co-accused (1, 2, and 3) were apprehended at the scene, while the appellant and accused 4 were arrested later at their homes based on implication by the apprehended co-accused. No identification parade was conducted to link the appellant to the crime. The provincial magistrate denied bail to all five accused on 30 October 2020. The appellant appealed this decision on 13 January 2021.

• Whether the magistrate committed a misdirection in refusing bail
• Whether compelling reasons existed to deny bail under s 117(2) of the Criminal Procedure & Evidence Act
• Whether the appellant posed a danger to members of the public
• Whether the failure to outline a defence at the bail hearing justifies refusal of bail
• Whether requiring an accused to outline his defence at a bail hearing violates the constitutional right to remain silent under s 50(4)(a) and s 70(1)(i) of the Constitution

The appeal was allowed. The provincial magistrate's decision to deny bail was set aside and substituted with an order granting bail on the following conditions: (i) deposit of $5,000 with the Clerk of Harare Magistrates Court; (ii) residence at House No. 7685 Kuwadzana 3, Harare; (iii) reporting at Kuwadzana Police Station every Friday between 0600-1800 hours; and (iv) non-interference with witnesses and investigations.

Where the only evidence linking an accused to an offense is implication by co-accused, this does not constitute cogent evidence justifying refusal of bail, as such evidence would be inadmissible at trial when the co-accused are in the dock. A magistrate commits a misdirection in refusing bail based on unsubstantiated findings not supported by any evidence or facts placed before the court. The principle in S v Ruturi that an accused should outline his defence at a bail hearing only applies where there is cogent evidence alleged by the State that requires an answer. A judicial officer deciding a bail application must refer to the legal principle upon which the decision is based and the facts upon which that principle is applied.

CHITAPI J observed that requiring an accused to outline his defence at a bail hearing, failing which an inference of a strong State case may be drawn, is "arguably unconstitutional" as it compels the accused to trade his constitutional right to remain silent (as guaranteed by s 50(4)(a) and s 70(1)(i) of the Constitution) for a favorable bail decision. The court noted developments in jurisprudence since S v Ruturi (2003), particularly the adoption of the 2013 Constitution which expressly provides for the right to remain silent for arrested and detained persons. The court also commented on the prosecutorial duty to act impartially, noting that counsel should not cling to unsupportable positions as "justice is all about impartiality and in this regard, the prosecution is constitutionally mandated to act without fear, favour or bias in the discharge of prosecuting functions."

This case is significant for developing Zimbabwean bail jurisprudence in the context of constitutional rights. It clarifies that: (1) evidence by way of implication from co-accused is not cogent evidence at the bail stage as it would be inadmissible at trial; (2) magistrates must provide reasoned decisions based on evidence and applicable legal principles when refusing bail; (3) the dicta in S v Ruturi requiring an accused to outline his defence only applies where there is cogent State evidence to answer; and (4) the court raised important constitutional concerns about whether requiring an accused to outline his defence at a bail hearing violates the constitutional right to remain silent under the 2013 Constitution. The judgment emphasizes that judicial officers must properly apply s 117(2) and (3) of the Criminal Procedure & Evidence Act and base their findings on evidence rather than speculation.