Zwelibanzi Macala Mhlanga and Blessing Mukaro v The State

The appellants were charged with fraud in contravention of section 136 of the Criminal Law (Codification and Reform) Act. It was alleged that they designed a plan to defraud the complainant by falsely advising him that there was a residential stand for sale in Matsheumhlope, Bulawayo. Acting on this misrepresentation, the complainant paid the appellants US$10,000.00, and nothing has been recovered. The crime was allegedly committed in March 2021, a police report was made in May 2021, but the appellants were only arrested on 20 March 2022. The investigating officer testified that the appellants had been on the run for approximately one year before their arrest. The Magistrates' Court refused bail on the basis that the appellants were a flight risk and it would not be in the interests of justice to release them. The appellants appealed to the High Court.

• Whether the Magistrates' Court misdirected itself in refusing bail to the appellants
• Whether the appellants constituted a flight risk justifying refusal of bail
• What standard of review applies when the High Court hears an appeal against refusal of bail
• Whether the Magistrates' Court exercised its discretion properly in considering the interests of justice

The appeal against the refusal of the Magistrates' Court to release appellants on bail pending trial was dismissed. The appellants were ordered to remain in custody.

A court hearing an appeal against refusal of bail can only interfere with the lower court's decision if satisfied that the court committed a material misdirection (acting on wrong principle, considering extraneous or irrelevant matters, making mistakes of fact, or failing to consider relevant matters) or exercised its discretion so unreasonably as to vitiate the decision. Previous conduct of evading arrest for an extended period (in this case approximately one year) constitutes strong evidence that an accused is a flight risk and justifies refusal of bail in the interests of justice. The appeal court must not merely substitute its own view for that of the magistrate but must establish that the discretion was improperly exercised.

The court observed that in deciding whether flight is likely and in the absence of concrete evidence of a predisposition to abscond, account must be taken of a number of factors which common experience has shown might influence a person either to stand trial or abscond. The court noted that upon being released on bail, appellants would "simply abscond" based on their demonstrated pattern of evasion.

This case reinforces the principles governing bail appeals in Zimbabwean criminal procedure, particularly the limited scope for appellate intervention when a magistrate has properly exercised discretion in refusing bail. It demonstrates the application of the flight risk assessment in cases where accused persons have previously evaded arrest, confirming that a history of absconding for an extended period is a strong indicator that release on bail would not be in the interests of justice. The judgment reaffirms that appellate courts must show deference to the lower court's exercise of discretion and may only interfere where material misdirection is established.