Webster Nyameto v The State

The applicant was employed as a till operator by the complainant. Between 23 July 2014 and 5 August 2014, he allegedly stole US$31,586.00 from his employer. His deceitful behaviour was discovered on 5 August 2014 when he violated company rules by operating a cellphone while at work. On 6 August 2014, it was discovered that his till terminal, which was designated for groceries only, had been used to charge an electrical gadget (a refrigerator valued at US$1,500.00). The applicant admitted to crediting the fridge on his till with the intention of later canceling the credit note and stealing the cash of US$1,500.00. An audit revealed that the applicant had been using the same modus operandi since 23 July 2014, resulting in the total theft of US$31,586.00. The applicant appeared before the Magistrates Court facing a charge of theft under section 113 of the Criminal Law Codification and Reform Act [Cap 9:23]. He applied for bail pending trial and was denied. He then appealed to the High Court against that decision. It was noted that no money was recovered from the applicant personally, but relatives of the applicant brought money to the complainant's office in batches.

• Whether the seriousness of the offence alone is sufficient grounds to deny bail
• Whether there were other factors in conjunction with the seriousness of the offence that militates against granting bail
• What factors should be considered when determining whether to grant bail pending trial
• Whether the presumption of innocence should be upheld in the bail application

The applicant was admitted to bail on the following conditions: 1) He deposits US$500.00 with the Clerk of Court Rotten Row, Harare; 2) He must reside at House Number 17 Mupani Avenue, Mufakose, Harare until finalisation of the matter; 3) He must report twice weekly every Monday and Friday at Harare Central Police Station between 6am and 6pm; 4) He must surrender his passport to the Clerk of Court, Harare Magistrates Court.

The seriousness of an offence alone is not an adequate reason for denying bail. Every suspect is presumed innocent until proven guilty by a competent court, and this presumption can only be displaced by other factors in addition to the seriousness of the offence. When determining bail applications, courts must consider: (a) the character of the charges and the penalties which would likely be imposed if convicted; (b) the strength of the state case; (c) the applicant's ability to flee to a foreign country and the absence of extradition facilities; (d) the past response to being released on bail; and (e) the assurance given that the applicant intends to stand trial. Where there is a risk of absconding, this can be adequately addressed through stringent bail conditions such as surrendering travel documents, stringent reporting conditions, and payment of bail money, rather than denying bail altogether.

The court observed that at the bail stage, it was not clear whether the applicant was the sole operator of the till in question, and questioned whether the complainant had a rotational system where different employees operate the till. This uncertainty supported maintaining the presumption of innocence in the applicant's favor. The court also noted that no money was recovered from the applicant personally, but rather relatives of the applicant brought money to the complainant's office in batches, which was a factor considered in assessing the strength of the state's case at the bail stage.

This case reinforces the fundamental principle in Zimbabwean criminal procedure that the seriousness of an offence alone is insufficient to deny bail. It affirms the presumption of innocence and emphasizes that bail can only be denied when the seriousness of the offence is coupled with other factors that indicate a risk to the administration of justice. The case demonstrates the court's approach to balancing the presumption of innocence with the need to ensure the accused appears for trial, through the imposition of stringent bail conditions rather than outright denial of bail. It also confirms the application of the Jongwe v S guidelines in bail determinations.