Tungamirai Madzokere and 28 Others v The State

On 29 May 2011, members of the Movement for Democratic Party (MDC) convened a gathering at Glenview One Shopping Centre, which later moved to Glenview 4 Shopping Centre where they were peacefully dispersed by police. The group allegedly relocated to Glenview 3 Shopping Centre at Munyarari Night Club. Police officers, including the deceased Petros Mutedza, went to disperse the unsanctioned gathering. Upon confrontation, the group allegedly turned violent and attacked the outnumbered police officers. The deceased was attacked and killed in the melee while his colleagues escaped with bruises. Twenty-nine accused persons, alleged to be MDC members who participated in the public violence, were charged with murder and alternatively with public violence under s 36 of the Criminal Law (Codification and Reform) Act. All accused were lodged in custody pending trial. After being indicted for trial in the High Court on 1 March 2012, the accused declined to plead on 12 March 2012, arguing they were not ready with their defences. They applied for bail under s 167 of the Criminal Procedure and Evidence Act.

• Whether the accused persons should be granted bail pending trial for murder and public violence charges
• Whether bail should be determined before accused persons have pleaded to the charges
• The application of s 66(2) of the Criminal Procedure and Evidence Act regarding remand in custody upon indictment to the High Court
• The relevance of the strength of the State case in bail determinations when pleas and defence outlines have not been filed
• Whether it is in the interests of justice to grant bail for serious offences where there is allegedly overwhelming evidence

The bail application was held in abeyance until such time as the applicants had pleaded to the charges against them and filed their respective defence outlines.

A trial court should not determine a bail application on its merits where the accused persons have not yet pleaded to the charges and filed defence outlines, as the court is unable to properly assess the strength of the state case against the defence case—which is a critical factor in bail determinations. The plea, defence outline, and summary of the state case are essential pointers to the eligibility of applicants for bail. Where accused persons fail to plead and request indefinite postponement, thereby depriving the court of these essential materials, the bail application should be held in abeyance until after pleas are entered and defence outlines filed.

The court observed that committal for trial in the High Court "heralds a turn for the worse as the day of reckoning becomes inevitable for the accused" and that "the real prospect of facing trial for a serious offence and the possible severe penalty might motivate the accused to abscond hence the need for incarceration until he can prove otherwise." This explains the rationale behind s 66(2)'s requirement for detention upon indictment. The court also noted that the postponement and delay in proceeding to trial was occasioned by the applicants themselves, not the State, which was ready and willing to proceed. The court made general observations about the facts, noting that it was beyond question that the deceased was attacked and killed by a group of youths alleged to belong to the MDC, but that the real issue was the identity of the murderers and whether the accused actively participated in the events.

This case establishes important procedural principles in Zimbabwean criminal law regarding the timing of bail applications in the High Court after indictment. It clarifies that bail applications should ordinarily be determined after accused persons have pleaded, as the court requires the plea, defence outline, and summary of the state case to properly assess the strength of the evidence and make an informed decision on bail. The case also reinforces the application of s 66(2) of the Criminal Procedure and Evidence Act, which requires detention upon indictment to the High Court unless bail is granted by that court. It demonstrates judicial reluctance to grant bail for serious offences (murder) where the court lacks sufficient information to assess the merits due to the accused's failure to plead. While this is a Zimbabwean case, it would be of comparative interest in South African jurisprudence regarding bail procedures and the importance of assessing the strength of the state's case in bail determinations.