S v MADZOKERE & ORS 2011 (2) ZLR 1 (H)

Flynote

Criminal procedure — bail — application for bail — principles to be observed — requirement for court to lean in favour of granting bail — grounds on which bail may be denied — propensity to disturb public order — what D must be shown

Headnote

The release of an accused person on bail is aimed at enabling him to attend trial from out of custody. It does not mean that he has no case to answer. On the other hand, the detention of an accused in custody is to secure his attendance to stand trial, if there are genuine grounds for believing that the factors mentioned in s 117(2) of the Criminal Procedure and Evidence Act [Chapter 9:07] have been established against him. That is why the seriousness of the charge the accused is facing is not on its own enough to deny an accused person bail. The court must therefore endeavour to strike a balance between the interests of justice and the accused's liberty. Section 117(1) leans in favour of the liberty of the accused person, where it states that the accused "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" (emphasis added). The intention of the legislature was to make s 117 consistent with the presumption of the accused's innocence until proved guilty. That proof or lack of it can only be established at the accused's trial. The factors to be considered in a bail applications are:

1. whether, if the applicant is released on bail, he will endanger the safety of the public or any particular person or will commit an offence referred to in the First Schedule; or

2. whether the applicant will abscond if released on bail; or

3. whether the applicant will interfere with witnesses or evidence if released on bail; or

4. whether the release of the applicant on bail will undermine or jeopardise the objectives or proper functioning of the criminal justice system, including the bail system; or

5. where, in exceptional circumstances, there is the likelihood that the release of the accused will disturb the public order or undermine public peace or security.

One or more of these factors must be established. They need not all be proved before a court can find that it is in the interests of justice for the accused to be detained in custody pending trial.

If it is alleged that release on bail would undermine or jeopardise the objectives or proper functioning of the criminal justice system (including the bail system), the applicant must be proved to have done things which can affect the proper functioning of the criminal justice system or to be likely to do so.