Tungamirai Madzokere and 28 Others v The State

Twenty-nine accused persons were charged with murder (alternatively public violence) arising from the alleged killing of a policeman on duty during politically motivated violence on 29 May 2011. The accused were in custody by operation of law under section 66 of the Criminal Procedure and Evidence Act after being indicted to the High Court. When the accused appeared for trial on 12 March 2012, they refused to plead, stating they needed more time to prepare their defences. The trial was postponed for more than a month. The accused then applied for bail pending trial, basing their application on alleged weaknesses in the State's case. The Court held the bail application in abeyance under section 117(6) read with Part I of the Third Schedule to the Criminal Procedure and Evidence Act, directing that the accused plead and provide defence outlines so the Court could assess whether exceptional circumstances existed to justify bail. The accused sought leave to appeal this procedural ruling.

• Whether the Court erred in postponing the bail application and requiring the accused to plead and furnish defence outlines before determining bail
• Whether the Court properly applied section 117(6) read with Part I of the Third Schedule of the Criminal Procedure and Evidence Act regarding bail for accused charged with murdering a law enforcement officer
• Whether exceptional circumstances must be proven by accused charged with murdering a law enforcement officer in the course of duty to obtain bail
• Whether the application for leave to appeal was properly brought or should have been by way of review
• Whether there were reasonable prospects of success on appeal

The application for leave to appeal to the Supreme Court was dismissed. The accused were required to provide pleas and defence outlines to enable the court to determine their bail applications on an individual basis.

Where an accused is charged with murdering a law enforcement officer in the course of duty under section 117(6) read with Part I of the Third Schedule of the Criminal Procedure and Evidence Act, the accused bears the onus of adducing evidence satisfying the court that exceptional circumstances exist justifying release on bail. "Exceptional circumstances" means extraordinary factors or circumstances outside common human experiences, creating a higher threshold than ordinary murder cases. A court may properly postpone a bail application and require accused persons to plead and furnish defence outlines to enable proper individual assessment of each accused's entitlement to bail and whether exceptional circumstances exist. The right to bail is not absolute but a qualified privilege that may be granted or denied depending on the circumstances and applicable law. Complaints about procedural irregularities in bail determinations should be addressed by way of review, not appeal.

The court observed that while the special protection given to law enforcement officers might seem discriminatory, it is justifiable discrimination sanctioned by law because law enforcement officers operate in dangerous environments prone to violent reprisals. The court noted that judicial officers have no option but to interpret and apply the law as it is. The court remarked that the postponement was not a denial of bail or punitive measure but an essential procedural step prescribed by law, and that the court was going out of its way to afford applicants a chance to comply with the law. The court commented that any prejudice suffered by the applicants from delay in determining the matter was self-inflicted, as they could have provided the required information. The court also noted that the same protection is accorded to witnesses who might be murdered for being witnesses.

This case clarifies the application of enhanced bail restrictions under Zimbabwean law where accused persons are charged with murdering law enforcement officers in the course of duty. It establishes that courts may require accused persons to plead and provide defence outlines before determining bail applications in such cases, to properly assess whether exceptional circumstances exist. The judgment reinforces the special protection accorded to law enforcement officers under the Criminal Procedure and Evidence Act and emphasizes that the right to bail is not absolute but a qualified privilege. The case also distinguishes between matters appropriate for appeal versus review in the context of procedural rulings on bail applications.