BAIL.

INTROUCTION

Bail is a set of pre-trial restrictions that are imposed on a suspect or accused to ensure
that they will not hamper the judicial process. An accused person can be granted bail
given that he or she applied for it in court. This is after the accused has been officially
placed on remand. Section 50 (6)(a)(b)(c) of the constitution of Zimbabwe states that
any person who is detained pending trial for an alleged offence and is not tried within a
reasonable time must be released from detention, either unconditionally or on
reasonable conditions to ensure that after being released they,

 attend trial

 do not interfere with the evidence to be given at the trial and

 do not commit any other offence before the trial begins

BAIL APPLICATION

In terms of S50 of the Constitution of Zimbabwe (Amend. No.20) 2013, an accused

may only be denied bail pending trial if there are compelling reasons why an accused
must be denied bail. See Makone v The State HH-93-07, where the court held that the
golden thread running through these principles is that bail should be allowed in the
interests of individual liberty unless it is not in the interests of justice. According to
SECTION 117(1) of the Criminal Procedure and Evidence Act, every accused person
has a right to bail, subject to the interests of justice:

‘a person who is in custody in respect of an offence shall be entitled to be released on

bail at any time after he or she has appeared in court on a charge and before sentence
is imposed, unless the court finds that it is in the interests of justice that he or she
should be detained in custody.”

Grounds listed in section 117 of the CPA are

1. to endanger public safety or the safety of an individual person;

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 2. strength of the state case, in S v Nyaruviro it was held that the relative
strength of state case on the charge and possibility of conviction stands to
reason that the accused is more likely to be convicted, hence the grater the
determination to flee.

3. not to stand trial/ risk of abscondment

-in casu S v JONGWE 2002 (2) ZLR 209 (S) Supreme Court held in judging
risk of abscondment the court to the accused person in ordinate motives or
fear that sways human nature. That in judging the risk of abscondment, the
court must take into consideration 1. Nature of danger,2. Security of the
punishment to be provided for upon conviction. In S v Madokere HH523\16
the nature of sentence the accused is likely to face may give reason why the
accused should be in custody

- in the case of S v Zvapera and another,bail was denial, due to the relative
strength of the state case.

4. to try to intimidate witnesses or interfere with the evidence or to undermine

or jeopardize the objectives or proper functioning of the criminal justice
system, including the bail system. Bail was not granted on the grounds that
accused might interfere with state witness , as the court ruled in the case of
S v Malunga 2003 (1)ZLR 275

5. it will also be in the interests of justice to refuse bail if “in exceptional

circumstances” it is likely that the release of the accused will disturb public
order or undermine public peace or security. It seems that this ground for
refusing bail is intended to cover crimes that cause shock or outrage to the
community, or cases where the public might feel uneasy or unsafe if the
accused were let out on bail.

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 6. The court must balance the interests of justice against the right of the
accused to personal freedom, taking into account the following, amongst
other factors

7. the period the accused has already spent in custody and the period he is
likely to spend before his trial

8. any delay in bringing him to trial, and whether he is to blame for any such
delay

9. any prejudice he may suffer in preparing his defence if he remains in

custody

10. the state of his health

In casu, S v Mlotshwa and Another (206 of 2022) [2022] ZWBHC 206 (28 September
2022) the court ruled that the state has overwhelming evidence against the accused
person, there was a reason suspicion that the accused may absconded trial
proceedings, interfere with state witnesses and the application for bail was dismissed.

If an accused person is charged with a crime set out in Part I of the Third Schedule to
the Criminal Procedure and Evidence Act, he must satisfy the court that exceptional
circumstances exist justifying his release, before the court can grant him bail.

BAIL PROCEDINGS

In bail proceedings an accused person is not entitled to have access to information

contained in the police docket of his case, unless the Prosecutor-General consents.
This statutory provision runs counter to the judgment in S v Sithole 1996 (2) ZLR 575
(H), in which Devittie J said that in High Court proceedings an accused ought ordinarily

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to be entitled, if he so requests, to copies of statements of witnesses whom the State
proposes to call.

The state may lead the Investigation Officers or The Arresting Officer in bail
application proceedings to present to the court that there is evidence that the state is in
position of. The state may also submit their statements through affidavits because they
are confirmed statements and inadmissible.

Section 115C of the Act seeks to align the Act with the Constitution by saying, in effect,
that the grounds listed in section 117 as justifying continued detention in the interests of
justice must be regarded as “compelling reasons”. That is fatuous: it is not for
Parliament to dictate to the courts what factors they must regard as compelling in order
to justify depriving a person of his or her liberty.

The refusal or granting of bail is a vitally important part of the criminal process. As
Hungwe J said in S v Chiyangwa 2005 (1) ZLR 163 (H) at 168G-169A. As it is a
constitutional right to the accused, given Bail is granted the state prosecutor, has to lay
ground that the accused has to follow pending trail.

Bail usually implies on reporting to nearby police station to the accused person one a
week or once fortnight, not to interfere with state witnesses, given a residential address
is given the accused to ordered to state at the resident he listed on the docket, a bail
bond, a deposit of money or some form of property to the court by the suspect in return
for the release from pre-trial detention according to section 137 of the CPEA. If the
suspect does not return to court, the bail is forfeited and the suspect may be charged
with the crime of failure to appear. If the suspect returns to make all their required
appearances, bail is returned after the trial is concluded.

BREACH OF CONDITIONS OF BAIL

If an accused person breaches or is believed likely to breach his conditions of bail, there
are three remedies

1. If the accused fails to appear at his trial after his name has been called three
times outside the court, the court, on the application of the prosecutor, can issue

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 a warrant for his arrest and declare the recognizance or the money deposited as
bail to be forfeited to the State.

2. Section 127 of the CPEA states that, If a peace officer believes on reasonable
grounds that the accused is about to abscond to evade justice, or is about to
interfere with evidence, the peace officer may arrest the accused and take him
before a magistrate as soon as possible, and in any event within 48 hours. The
magistrate may commit the accused to prison.

3. If it appears to the magistrate that an accused person has breached the

conditions of his bail (e.g. does not report to the police), he may order the
accused’s recognizance to be forfeited and issue a warrant for the accused’s
arrest. Presumably, before making the declaration of forfeiture in such
circumstances he must give the accused an opportunity to make representations.

RELEASE OF JUVENILE OFFENDERS WITHOUT BAIL

S135 of THE CRIMINAL PROCEDURE AN ECIDENCE ACT states, when a person

under the age of eighteen years is accused of any offence other than treason, murder or
rape, any judge, magistrate or police officer who has power under this Part to admit the
said person to bail may, instead of admitting him to bail or instead of detaining may
release him without bail and warn him to appear before a court or magistrate at a time
on a date then fixed by the judge, magistrate. The police office may release him without
bail to the care of the person in whose custody he is and warn that person to bring the
accused to court. It is for the best interest of justice to place the accused where is
safety as defined in section 2 of the Children’s Act [Chapter 5:06] pending his
appearance before a court or magistrate or until he is otherwise dealt with according to
law.

APPEALS AGAINST DECISIONS REGARDING BAIL

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Section 121 of the CPEA states that, when a judge or magistrate has admitted or
refused to admit a person to bail, (a) the Prosecutor-General or the public prosecutor,
within forty-eight hours of the decision; or (b) the person concerned, at any time; may
appeal against the admission to or refusal to bail or the amount fixed as bail or any
conditions imposed in connection with bail. [subsection substituted by section 29 of Act
2 of 2016]

An appeal in terms of subsection (1) of sectrion121 of the CPEA against a decision of a

judge of the High Court, shall be made to a judge of the Supreme Court, a magistrate,
shall be made to a judge of the High Court. Where a judge or magistrate has admitted a
person to bail, and an appeal is noted by the Prosecutor-General or public prosecutor
under subsection (1), the decision to admit to bail remains in force unless, on the
application of the Prosecutor-General or public prosecutor, the judge or magistrate is
satisfied that there is a reasonable possibility that the interests of justice may be
defeated by the release of the accused on bail before the decision on appeal, in which
event the judge or magistrate may suspend his or her decision to admit the person to
bail and order the continued detention of the person for a specified period or until the
appeal is determined, whichever is the shorter period.

Section 123 of the CPEA looks at the Power to admit to bail pending appeal or review.
This is when the mater has been finalized or sentence has been given by the court and
the accused wished to appeal the sentence. Subsection (1) states that an accused may
be admitted to bail or have his conditions of bail altered, in the case of a person who
has been convicted and sentenced or sentenced by the High Court.

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