BAIL

BAIL PENDING TRIAL

The Public Prosecutor must be fully conversant with the facts which the courts take
into account in deciding whether or not to grant bail. Therefore, all the information
which will assist in arguing against bail must be extracted. The general policy in our
law is that persons are presumed innocent until their guilt has been proven. The
right to liberty is one of the most fundamental human rights and should not be
lightly interfered with. In S v Biti 2002 (1) ZLR 115 (H) it was held that the court
should always grant bail where possible and should lean in favour of the accused
provided that the interests of justice will not be prejudiced. In S v Ncube 2001 (2)
ZLR 566 (S) the court held that in considering a bail application a judicial officer
must bear in mind the presumption of innocence and should grant bail where
possible.

S v Ndlovu 2001 (2) ZLR 261 (H) the court stated that grounds for refusal of bail
should be substantiated. The court should always grant bail where possible and
should lean in favour of the liberty of the subject provided the interests of justice will
not be prejudiced. The whole issue therefore, is to strike a balance between the
interests of society (that is, the accused should stand trial and there should be no
interference with the administration of justice) and liberty of the accused (who is
presumed to be innocent).

ONUS OF PROOF

Section 117 of the Criminal Procedure and Evidence Act (CPEA) establishes
a general entitlement to bail unless the court finds that it is in the interests of justice
that the accused be detained in custody pending trial. It would, therefore, seem that
the legislature has placed the onus on the State to establish that there are clear
grounds justifying the refusal of bail. In Maki and others 1994 (2) SACR 630 (E )
it was held that the onus is on the State to show, on a balance of probabilities, that
the applicant’s further detention is necessary for the proper administration of justice.
In view of the general constitutional provisions relating to right of liberty, the onus
of showing that bail should not be granted before sentence is passed would appear
in the first instance to be on the prosecution. Once credible grounds for refusing bail
have been made, the onus shifts to the accused, to show on a balance of
probabilities that his admission to bail would not prejudice the interests of justice.
See S v Chiyadzwa 1988 (2) ZLR 19 (H), AG v Phiri 1987 (2) ZLR 33 (H)
and Mutambara and others v Ministry of Home Affairs 1998 (3) ZLR 96
(H).

EVIDENCE

The Public Prosecutor must not make bald assertions that a particular ground for
refusing bails exists. He must show that his assertion is well-grounded and based on
full information, S v Hussey 1991 (2) ZLR 187 (H). He may do so from the bar or
may call evidence, hearsay evidence is admissible, affidavits and written reports,
written statements and statements not on oath. See section 17A (4) (b) CPEA.

The accused is required to disclose any previous convictions or pending cases

against him in terms of section 117A (5) (a) and (b) CPEA, failing which shall
constitute an offence in terms of section 117A (8) (a) and (b) CPEA.

The accused is not entitled for the purpose of bail, to have access to any
information, record or document relating to the offence in question, which is
contained in, or forms part of a police docket, including any information e.t.c. which
is held by the police, unless the Attorney General otherwise directs, see S117A
(10) CPEA, see also AG v Mapanga-nhachi 2009 (2) ZLR 150 (S).

PROCEDURE

In S v Ncube and another 2002 (2) ZLR 524 the court held that bail
applications are sui generis with no prescribed format or procedure, and it is the
duty of the court, allowing for the circumstances of each case, to determine the way
in which each party should submit its evidence.
GRANT OF BAIL BY MAGISTRATE

Magistrates’ powers to grant bail or to enter bail conditions are restricted. for any
offence specified in the 3rd schedule, magistrates may only grant bail if the Attorney
General has personally consented Section 116 (c) (iii) CPEA.

Section 117(6) of the CPEA contains further restrictions on the granting of bail
by magistrate. It provides that where an accused is charged with an offence referred
to in part 1 of the third schedule, the magistrate shall order that the accused be
detained until he or she is dealt with in terms of the law, unless the accused
adduces evidence which satisfies the judge or magistrate that exceptional
circumstances exist which in the interests of justice permit his or her release. This
applies even if the Attorney General has consented to the accused’s admission to
bail, see S v Tungamirayi Madzokere and others HH–282-12 and HH –
256/12.

GRANT OF BAIL BY JUDGE

Judges have the power to grant bail in respect of any offence. However, this power
is subject to various restrictions, See Section 117A of CPEA and S v Madzokere
(Supra). The procedures to be followed and the documents to be produced are laid
down in the High Court of Zimbabwe (Bail Rules), S.I. 109 of 1991.

GROUNDS FOR REFUSAL

The fundamental principle governing the court’s approach to bail applications is to

uphold the interests of justice. The court must therefore try to strike a balance
between the protection of the liberty of the individual and the administration of
justice. Bail may be refused if one or more of the grounds set out in section
117(2) of the CPEA are established. These are in the following;

a) Likelihood Of Abscondment

An accused who has decided not to stand trial may either flee the country if he has
the capacity to do so or go to a place in the country where he believes the
authorities will not be able to find him. If there are good grounds for believing that
an accused will flee and become a fugitive from justice, bail may be refused. See
Hussey case (Supra). For example, if, before or after his arrest, accused escaped
or attempted to escape from custody, this would clearly show his predisposition to
abscond and not to stand trial. For factors to consider see section 117 of CPEA.
See also Chiadzwa case (supra), S v Makamba S-30-04, S v Jongwe 2002
(2) ZLR 209 (s), Aitken and Another v AG 1992 (1) ZLR 249(s), S
vGwatiringa HH-128-88 and S vBiti 2002 (1) ZLR 115 (H).

b) Likelihood of Tempering With Evidence

This will obviously be strong if the state can show that there have already been
attempts to do this. This was the situation in the South African case of Maharaj
1976 (3) SA 205 where the accused had already tried to persuade the witness to
disappear. In the Chiadzwa case (supra), there was evidence suggesting that the
accused had attempted to bribe a police officer. See also Maratera S-93-91,
Bennett 1976 (3) SA 652 and Hussay (Supra)

c) Endanger The Safety of The Public or Any Particular Person or Will Commit An
Offence Referred To In The First Schedule

The public must be protected against further criminal activities of a person pending
trial. This is especially so in respect of dangerous criminals. In this respect, the
state can produce previous convictions. See S v Fourie 1973 (1) SA 100 (D). If
he has a string of previous convictions there is a substantial chance that he might
commit further crimes while on bail. See AG V Phiri 1987(2) ZLR 33 (H), S v
Demba HH-133-89, Patel 1970 (3) SA 565 (W) and Section 117 of CPEA.

d) Undermine or Jeopardise The Objectives or Proper Functioning of The

Criminal Justice System

See section 117 of the CPEA

 e) The Accused Would Disturb Public Order or Undermine Public Peace or
Security

See section 117 (3) (e) of the CPEA.

STATE NOT OPPOSING BAIL

Even if the prosecution does not oppose the granting of bail, the court still has the
duty to weigh up then personal interests of the accused against the interests of
justice and decide whether it is in the interests of justice to grant bail. See section
117(5) CPEA. The court can also require the prosecutor to put on record the
reasons for not opposing bail, See 117 (4) of CPEA. And where accused is charged
with a crime set out in part 1 of the 3 rd schedule to the CPEA, a magistrate cannot
grant bail unless accused adduces evidence showing that there are exceptional
circumstances justifying his release, even if the AG has personally consented to the
grant of bail. See section 117 (6) of CPEA and S v Madzokere (supra).

In S v NDHLOVU 2001 (2) ZLR 261 (H), the court stated that the attitude of the
AG is a relevant but not decisive factor. His assertion cannot be substituted for the
court’s discretion. See Mahata v Chigumira NO HH-24-04.

AMOUNT OF BAIL

An excessive amount of bail must not be demanded, see section 120 CPEA. Thus,
bail must not be set at an amount that is beyond the capacity of the accused to
raise, because he will end up in custody. In respect of persons with little financial
means, bail can be set at a low level or a person can be released on his own
recognisances, with or without further conditions or he can be released subject to
sureties being found.

Bail is usually cash but the court can order the accused to deposit property
belonging to him or the accused may also be required to find persons to stand
surety for him, see section 119(1) CPEA. Other conditions may be imposed and
these include surrendering travel documents, reporting at police stations or other
authority, or forbidding the accused from visiting particular places. See S v
Micklethwait 2003 (1) ZLR 26 (H).
Once conditions are imposed, it is not permissible for the state to seek further
conditions in the absence of further violations while on bail. See S v Tsvangirai
and Ors 2003 (1) ZLR 618 (H). There is also need to treat the accused persons
equally. In fact the law must be applied evenly. See S v Lotriet and Anor 2001
(2) ZLR 225 (H).

CANCELLATION AND FORFEITURE OF BAIL

If the accused breaches any of the conditions of his bail the court may declare the
bail to be forfeited, S 133 (a) of CPEA. Where the accused has failed to appear in
court for trial, the prosecutor may apply for a warrant of arrest and for the forfeiture
of the accused’s bail and any recognisances that have been entered into, see S119
CPEA. The court will usually refrain from ordering forfeiture of bail until the
accused is arrested and brought before the court and asked to explain his default.
Forfeiture is usually ordered where the default was wilful or deliberate, see S v
Sibanda 1980 ZLR 413. If the default was wilful, the court is obliged to order
forfeiture of bail, see Knight NO v Van Tonder and Ors 1962 R & N 405 (SR).

BAIL PENDING APPEAL

Where a person has been convicted of any of the offences specified in the third
schedule, a magistrate may only admit a person to bail or alter his bail conditions if
the AG has given his consent. See Proviso (iii) to section 123 (1) of CPEA.
Where a person has been convicted for an offence, other than one of these specified
ones, the magistrate who has convicted him has discretion to grant bail pending
appeal. The High Court also has discretion to grant bail pending appeal to the
Supreme Court where it has convicted and sentenced the accused.

CONSIDERATIONS

The main factors which are weighed are the interrelated factors of prospects of
success on appeal and whether the granting of bail will jeopardise the interests of
the administration of justice. In S v Kilpin 1978 RLR 282 (A) , the court pointed
out that the principles governing the granting of bail after conviction are different
from those governing the granting of bail before conviction. The presumption of
innocence falls away. Where there is a lengthy sentence and there are no
reasonable prospects of success against the lengthy sentence, bail must be refused.
Where the evidence of guilt is overwhelming, there is no reasonable prospect of
success on appeal, but if there is room for a difference of opinion regarding
conviction there would be a reasonable prospect on appeal. See S v Labuschagne
2003 (1) ZLR 644 (S) and S v Benatar 1985 (2) ZLR 205 (H).

The onus is upon the applicant.

In deciding whether the administration of justice will be prejudiced, the court will
take into account:-

 The seriousness of the offence.

 The seriousness of the penalty imposed.

 Whether the appeal is against conviction or only sentence and

 The prospects of success.

In S v Manyange 2003 (1) ZLR 21 (H) the court held that the mere fact that
there are reasonable prospects of success on appeal or that the applicant has a
reasonably arguable case does not entitle him to bail. He must show that in addition
to his prospects of success on appeal, the interests of justice will not be endangered
if he is granted.

FURTHER APPLICATION

If bail has been refused, a further application can be made before the same court
based on new or different facts. S 116 (1) (c) proviso (iii). The passage of time
can be a new fact. The fact that police have had sufficient time to strengthen their
case but have not been able to strengthen it is also a factor to consider. See S v
Murambiwa S-62-92 and also Aitken (2) 1992 (2) ZLR 463 (S) and also S v
Barriers and others 2002 (2) ZLR 17 (H).
APPEALS

APPEAL AGAINST DECISION OF BAIL BY MAGISTRATE

Where a magistrate refuses an application for bail, the accused is entitled to appeal
against the refusal to a judge of the High Court. (S121 (1) (b) of CPEA). If bail is
granted, the Attorney General or his representative has seven (7) days within which
to appeal to the High Court. (S121 (1) (b) of C PEA as read with S 121 (2) (b)
of the same act). The notice of appeal suspends the decision for a period of up to
seven days. If the appeal is lodged within the seven (7) day period by the Attorney
General the decision is suspended until the appeal is decided S 121 (3). If the AG
does not appeal within the seven (7) days or notifies the court that he has decided
not to pursue the appeal, the person will be released, S 121(3) (a). Where a
person applies for bail in the magistrates’ court and the application is refused, he is
entitled only to a single appeal to the High Court, see Chiyangwa v A-G and ors
S-1-04 and also A-G v Lotriet and ors 2001 (2) ZLR 168 (H). The only
exception arises in respect of currency offences; See A-G v Fundira S-33-04. For
the High Court to interfere with the decision of the magistrate, there should be
misdirection or irregularity. See A-G v Ruturi HH-26-03

APPEAL AGAINST DECISION ON BAIL BY JUDGE OF THE HIGH COURT

The principles that apply to magistrates apply to judges save for the following;

a) An appeal from the High Court lies to the Supreme Court

b) Where a party wishes to appeal against an order of a judge refusing bail, then
leave of that judge must be sought. If refused, the leave of the judge of the
Supreme Court will be sought. This is a statutory requirement and failure to
comply with it may not be condoned. See AG V Mpofu S-50-02 and also
Aitken (2) 1992 (Supra)

c) Where a person convicted in the magistrates court makes his initial

application for bail in the High Court, an appeal still lies with leave to a judge
of the Supreme Court; See S v Dzawo 1998 (10 ZLR 536 (S)