What is Bail?

Bail is a way of allowing a person who has been remanded for trial at a later date to remain at liberty until his trial.  To grant bail means to allow a person to enter into a contract or undertaking (called “a recognisance”) whereby he remains at liberty in consideration for his paying or guaranteeing to pay a sum of money if he fails to appear in court at the date, time and place appointed for his trial or further remand.  Once bail is granted, the accused person should not be deprived of his liberty until his bail bond is terminated, unless he breaches any conditions under which bail was granted, and the State has an implied obligation to allow him to remain at liberty so long as he abides by those conditions.

The need for a mechanism such as bail must be understood in the light of the following principles:

1. Arrested persons have a right to be released, unconditionally or on reasonable conditions, unless there are compelling reasons justifying their continued detention.
2. An accused person is presumed to be innocent until he has been convicted by a court of law.He should not, therefore, be deprived of his liberty until he has been convicted.On the other hand, the State has an interest in ensuring that accused persons appear in court for their trial, and in some cases this can only be ensured by keeping them in custody pending trial.A balance must be struck between these two interests.
3. It is not in the interests of justice for bail to be granted to a person who will not stand his trial or will abuse his liberty by, e.g. intimidating the witnesses against him.But nor is it in the interests of justice to refuse bail to a person who will stand his trial and will not abuse his liberty:he will probably lose his employment and the respect he enjoys in the community, and will find it more difficult to make arrangements for his defence at his trial.
4. In deciding whether or not to grant bail, a court must consider the constitutional rights of the accused person and his or her dependants.Where the accused is the primary care-giver of a child, the best interests of the child must be considered together with all the other circumstances.

Bail is non-penal in character, and neither the amount of bail nor the refusal of bail may be influenced by a desire to punish the accused or to deter other offenders.  Nor should the grant or refusal of bail be used as an inducement to get the accused to make a statement to the police.

Although the grant of bail in any particular case is pre-eminently a matter for the judicial officer, he or she usually acts on information given by the prosecutor, so the prosecutor has a duty to place before the court any information he or she has relevant to the grant or refusal of bail.

Who May Grant Bail

A judge may grant bail in respect of any crime.  A magistrate within whose area of jurisdiction the accused is being kept in custody may grant him bail in respect of all crimes except a serious crime specified in the Third Schedule to the Criminal Procedure and Evidence Act, of which the most important are:

• treason;
• murder or attempted murder;
• rape or aggravated indecent assault;
• robbery;
• indecent assault of a child;
• kidnapping or unlawful detention involving the infliction of serious bodily harm;
• crimes involving insurgency, banditry, sabotage or terrorism;
• any crime where the accused is to be indicted to the for trial.

If, however, the Prosecutor-General personally consents to the magistrate granting bail for any of the above crimes, then the magistrate has power to do so.

When an accused person is indicted for trial in the High Court, the bail will stand but a judge of the High Court may revoke it or alter any condition under which it was granted.

Bail may also be granted by a police officer;  that is dealt with in a later section.

Application for Bail

Before an accused person can be granted bail, he must apply for it, and the application cannot be made until he or she has appeared in court on a charge — that is, when he is formally placed on remand.

An accused person who appears before a judge or magistrate before trial (for example, when he appears on remand) may apply verbally to be admitted to bail immediately;  alternatively he may make a written application in the form prescribed in rules of court.  Every such application must be dealt with promptly.

The Prosecutor-General or the local public prosecutor must be given reasonable notice of oral bail applications — though in practice applications are made by accused persons on their first remand without giving such notice.

When a written bail application is made to the High Court, the application is filed with the Registrar of the High Court and a copy must be served on the Prosecutor-General either by the Registrar or by the accused’s legal practitioner.  The Registrar must set the matter down for hearing within 48 hours after it was filed.  The Prosecutor-General must file a written response to the application within three hours before the hearing.

In a bail application, the judge or magistrate can receive evidence on oath or by affidavit, and hearsay evidence is admissible.  In practice, formal evidence is not given in most applications;  the accused asks for bail and is questioned by the court to ascertain his circumstances and what amount of bail he can afford.  The prosecutor indicates his attitude to the grant or refusal of bail, and the judge or magistrate decides the question on the basis of what he has been told by the accused and the prosecutor.  Bail proceedings, in fact, follow the inquisitorial rather than the adversarial model of criminal procedure.  Both sides can be required to adduce evidence.  If the accused gives evidence, however, the court must inform him that his evidence will be admissible and may be used against him at his trial.

An accused person “is compelled to inform the court” whether he has any previous convictions and whether he is facing other charges and, if he is, whether he has been granted bail on those charges.  It is not clear if this means that he must volunteer the information or need disclose it only if asked.  If he wilfully fails or refuses to give this information, or gives false information on these matters, he commits a crime.  This requirement is almost certainly unconstitutional in that it violates the accused’s right to silence.

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 to be entitled, if he so requests, to copies of statements of witnesses whom the State proposes to call.  (In Sithole’s case however the court was concerned with the accused person’s rights for the purposes of a trial, not bail proceedings before trial).

Bail applications should be recorded, and the record forms part of the record of the trial — though any information the accused may have given regarding his previous convictions is excluded (query:  how?).

If an application for bail is refused by a judge or magistrate, a further application cannot be made unless it is based on facts that were not placed before the judge or magistrate who first determined the application and which arose or were discovered after he made the decision.  If no new facts arise, the only recourse the accused has is to appeal.  It should be noted, however, that the passage of time can itself constitute a “new fact”:  in other words, the fact that a long time has elapsed since an application for bail was made and refused can be placed before the court as a justification for a fresh application.

Principles Governing the Grant of Bail

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:

“Initial remand is an important step in a citizen’s loss of liberty.  After arrest without warrant, it is the first time that his case is presented to a neutral body for arbitration of the issue whether or not, on the basis of mere suspicion, the citizen must lose his freedom.  If he loses his freedom at that stage, before his guilt is proved, he may face total ruin.  He may lose his job, or other means of his livelihood.  He could lose his home too if he is a lodger or a mortgagee as he falls into arrears.  This could drive his family into destitution and he is forced to rely on State support for livelihood whilst in custody.  The consequences are just too ghastly to contemplate for both the rich and the poor.  Magistrates are therefore to take the greatest care when approaching the question whether to deny or grant bail.”

The following principles govern the grant or refusal of bail:

Right to bail

Section 50(1)(d) of the Constitution states that a person who has been arrested:

“must be released unconditionally, or on reasonable conditions, pending a charge or trial, unless there are compelling reasons justifying their continued detention.”

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.”

The constitutional provision protects liberty more stringently:  an accused person must be released unless there are “compelling reasons” for keeping him in detention;  the Criminal Procedure and Evidence Act on the other hand  says that he may be detained if it is “in the interests of justice” to do so.  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.

Compelling reasons justifying detention

What are “compelling reasons” justifying the detention of a suspect?  It is impossible to define them comprehensively because what is compelling will vary according to the personal circumstances of each suspect and the facts of his or her case.  There are three reasons which normally justify continued detention:

• that the suspect is likely to abscond
• that the suspect is likely to interfere with the evidence, e.g. by intimidating witnesses
• that the suspect is likely to commit further crimes if released.

Whether those reasons, individually or in combination, will be compelling depends on the facts and circumstances of each case, as already pointed out.  The more likely the suspect is to do any of these things, the more compelling the reason for keeping him in custody.

Section 117 of the Criminal Procedure and Evidence Act

Section 117 of the Act seems to be based loosely on the equivalent provision of the South African Criminal Procedure Act, 1977, which in turn is based on section 35(1)(f) of that country’s constitution.  Section 35(1)(f) states that everyone who is arrested has the right to be released from detention “if the interests of justice permit”.  Our Constitution is different, as already noted.  Arrested persons in Zimbabwe have a greater constitutional right to bail than is granted them in South Africa;  so section 117 does not go far enough in guaranteeing to arrested persons their right to bail.  To that extent, therefore, it is unconstitutional.  Merely saying, as section 115C does, that the reasons listed in section 117 amount to compelling reasons does not render section 117 constitutional.

Be that as it may, section 117 of the Criminal Procedure and Evidence Act elaborates on the three reasons for continued detention listed above, and sets out in detail the considerations to be taken into account by a judge or magistrate when deciding whether to grant or refuse bail:

• It will be in the interests of justice to refuse bail where it is established that if the accused is granted bail he is likely:
  
  • to endanger public safety or the safety of an individual person;
  • to commit a First Schedule crime;
  • not to stand trial;
  • to try to intimidate witnesses or interfere with the evidence;or
  • to “undermine or jeopardise the objectives or proper functioning of the criminal justice system, including the bail system” (whatever that means).
• 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.
• 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:
  
  • the period the accused has already spent in custody and the period he is likely to spend before his trial;
  • any delay in bringing him to trial, and whether he is to blame for any such delay;
  • any prejudice he may suffer in preparing his defence if he remains in custody;
  • the state of his health.

There are various other restrictions on the grant of bail:

• Accused persons who have been arrested on a charge of committing a crime set out in the Third and Ninth Schedules to the Criminal Procedure and Evidence Act must be remanded without bail for 21 days (the requirements for this have been dealt with above on page of these notes).
• 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.
• Accused persons who have been committed for trial in the High Court can only be granted bail by that court.If however a magistrate has granted them bail before their committal the bail stands unless a judge alters or revokes it.
• Where an accused person has been extradited to Zimbabwe from a foreign country in order to stand trial here, and the Minister responsible for administering the Extradition Act [Chapter 9:08] certifies that he has given an undertaking to the foreign country concerned that the person will not be granted bail, or will be granted bail subject to certain conditions, the court must refuse that person bail, or grant it subject to those conditions, as the case may be.

As indicated above, these provisions are unconstitutional in so far as they allow a person to be denied bail in the absence of compelling reasons for such denial.

It is undesirable that accused persons should be deprived of their liberty if the sentence likely to be imposed will be a fine or another non-custodial sentence.

Each case must be decided on its merits, and the prosecutor must make an independent assessment of the case and should not blindly follow the recommendations of the police as to the grant or refusal of bail.  Similarly, the court must consider each case and not act as a rubber stamp.

Onus of proof

Generally, the onus of showing that bail should not be granted rests with the prosecution, where bail is sought before the accused person has been found guilty.  As Mathonsi J said in S v Munsaka 2016 (1) ZLR 427 (H), the onus of proving compelling reasons for not granting bail lies on the State.  The degree of proof required is a balance of probabilities.  Under section 115C of the Criminal Procedure and Evidence Act however the onus is shifted to the accused where he is charged with a crime listed in Part I of the Third Schedule to the Act (some of them are listed above, in the section headed “Who may grant bail”).  In that event the accused bears the onus of showing, on a balance of probabilities, that it is in the interests of justice for him to be admitted to bail.  Where the accused is charged with a crime listed in Part II of that Schedule (premeditated murder, murder of a police officer, serious rape or indecent assault, indecent assault of a child, crimes involving terrorism) he must go further and show, again on a balance of probabilities, that exceptional circumstances exist permitting him to be released.  It is doubtful if these provisions of section 115C are constitutional.

It is not sufficient for the prosecutor to make bald assertions that a particular ground for refusing bail exists;  he must show that his assertions are well founded.  Simply alleging that the accused will abscond, will endanger the public or will interfere with witnesses, without substantiating such allegations, does not meet the threshold of compelling reasons set by the Constitution.  In S v Kuruneri 2004 (1) ZLR 409 (H), Hlatshwayo J (as he then was) said that there was no basis for the view that the accused person has an onus to discharge to enable him to be admitted to bail.  The presumption of innocence operates fully in bail applications made before the accused has been found guilty, and so the court is expected and required to lean in favour of the liberty of the accused.  If the State’s fears that the accused will abscond or interfere with witnesses are equally balanced against the accused’s assurances to the contrary, then the presumption of innocence requires the court to lean in favour of the accused’s liberty and grant bail.  In other words, if the State opposes bail it must prove that justice will be served by denying bail.  The view expressed in Kuruneri’s case is clearly correct, though now that section 50(1)(d) of the Constitution provides that arrested persons must be released pending trial unless there are “compelling reasons justifying their continued detention”, the State’s onus is heavier:  it must prove the existence of those compelling reasons.

Once, however, the prosecution has made credible allegations against the accused which would provide grounds for refusing bail, the onus shifts to the accused person, who must show on a balance of probabilities that his admission to bail would not prejudice the interests of justice.

Methods of Granting Bail

Bail may be granted in two ways:

Deposit of money or property

The accused may be permitted to deposit a sum of money or any other property (e.g. title deeds to his house) as security for his appearing in court for his trial.  This is by far the most common way in which accused persons are granted bail.

Recognizances

Alternatively, the accused (and, sometimes, one or more sureties) may be required to enter into recognizances, i.e. a written undertaking or bond by which they agree to pay the court a specified sum of money if the accused fails to comply with the conditions of his bail.

If sureties have entered into a recognizance they will generally remain liable on it until the accused is sentenced or discharged, but they can apply to the court which granted bail to be released from the recognizance.  In that event, the court will issue a warrant of arrest for the accused, and when the accused comes to court the judge or magistrate will discharge the surety and require the accused to find another person to stand as surety;  if the accused fails to do so he may be committed to prison.  Alternatively, the surety may get his discharge from the recognizance by bringing the accused person to court;  in that event the accused may be committed to prison or granted bail on fresh conditions.

Bail Conditions

The essential condition of bail is that the accused must appear in court at the appointed times and places until the proceedings against him are completed.  Further conditions are usually added to ensure that the accused complies with the main condition.  The court’s power to impose such conditions is very wide, and they may include:  the surrender by the accused of his passport;  reporting to the police at regular intervals;  a prohibition against his communicating with witnesses for the prosecution.

Conditions must be practically feasible and should be neither vague nor ambiguous.

Amount of Bail

The amount of bail taken in any case, whether in the form of a deposit or a recognizances, is in the discretion of the court, but excessive bail must not be fixed.  What is excessive in any particular case will depend on the financial resources of the accused person, so these must be investigated carefully by the court.  When fixing the amount of bail, the court must reconcile the twin objectives of allowing the accused to be at liberty, while ensuring that he is sufficiently motivated to appear in court when required.

Amendment or Withdrawal of Bail

If new facts are brought to the attention of a judge or magistrate as a result of which he considers it necessary or advisable in the interests of justice to amend or add to the conditions of bail, he may do so.  He may also order that the accused be committed to prison and issue a warrant for his arrest.

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

Appeal against Grant or Refusal of Bail

Appeal by accused against decision of magistrate

An accused person may appeal to a judge of the High Court at any time against a magistrate’s refusal to grant him bail, or against the amount of bail or conditions of bail fixed by a magistrate.  The appeal does not suspend the decision, so the accused will remain in custody pending the result of the appeal.

The appeal must be in writing and must give sufficient particulars to identify the decision that is the subject of the appeal and must state the grounds on which the decision is appealed against.  A copy of the written statement of appeal must be served on the Prosecutor-General, and the appeal must be set down within 96 hours after it is filed with the Registrar of the High Court.

The judge has wide powers on appeal, equivalent to those of the magistrate whose decision is the subject of the appeal, and the appeal amounts to a rehearing:  it is an appeal in the wide sense, and the judge can substitute his own discretion for that of the magistrate.

There is no further appeal to the Supreme Court from a decision of a judge of the High Court on appeal, unless the accused person has been charged with any of the following crimes

• subverting constitutional government (section 22 of the Criminal Law Code);or
• crimes relating to insurgency, banditry, sabotage or terrorism (sections 23 to 29 of the Criminal Law Code);or
• an economic crime set out in the Ninth Schedule to the .

In such a case, either the accused person or the Prosecutor-General can appeal to the Supreme Court against a decision of a judge of the High Court on appeal.

Appeal by accused against decision of judge

An accused person who has been refused bail by a judge, or who is aggrieved by conditions of bail imposed by a judge acting as a court of first instance, may appeal to a judge of the Supreme Court.  Leave to appeal must first be obtained from the judge or, if he refuses it, from a judge of the Supreme Court.  As with an appeal against a magistrate’s decision, the appeal does not suspend the decision appealed against.

The procedure to be followed in such appeals is the same as that for appeals to the High Court against decisions of magistrates on bail, and the Supreme Court’s power on appeal are the same as those of the High Court in such appeals.   In other words, the appeal amounts to a rehearing and the Supreme Court can substitute its own discretion for that of the judge of the High Court.  This is because section 121(5) of the Criminal Procedure and Evidence Act [Chapter 9:07] makes no distinction between appeals to the High Court and appeals to the Supreme Court  Earlier cases, such as S v Chikumbirike 1986 (2) ZLR 145 (S) at 164, which held that the Supreme Court will interfere with a decision of a judge in a bail application only if the judge committed an irregularity or misdirection or exercised his discretion so unreasonably or improperly as to vitiate his decision, no longer reflect the current law.

Appeal by Prosecutor-General against bail decisions

The Prosecutor-General may appeal against a decision made by a judge or magistrate in regard to bail.  Where he appeals against a magistrate’s decision, the appeal lies to a judge of the High Court;  where he appeals against a decision of a judge of the High Court, the appeal lies to a judge of the Supreme Court.  As with an appeal by an accused person, leave must be obtained before an appeal against a decision of a judge is noted.

If the Prosecutor-General wants to appeal against a grant of bail, he must do so within 48 hours after the decision to grant bail.  After he has noted his appeal the decision to grant bail remains in force unless, on the application of the Prosecutor-General or a public prosecutor, the judge or magistrate suspends the decision on being satisfied that there is a reasonable possibility that the interests of justice may be defeated if the accused person is released.

The procedure to be followed in appeals by the Prosecutor-General is the same as the procedure to be followed in appeals by accused persons.

As with appeals by accused persons against decisions of magistrates, there is no further appeal to a judge of the Supreme Court against a decision of a judge of the High Court on appeal, unless the accused is charged with certain serious crimes (as to which, see above).

Bail Granted by Police

It is a fundamental principle that the courts, not the Executive (i.e. the police) should decide whether or not a person who is awaiting trial should be granted bail or be kept in custody.  Nevertheless, if a suspect has been arrested on a relatively minor charge and is unlikely to abscond or interfere with the evidence, or to commit further crimes, it is obviously desirable for him to be granted bail as soon as possible, even if a magistrate is not immediately available to hear his application for bail.

Hence section 132 of the Criminal Procedure and Evidence Act states that a police officer of or above the rank of Assistant Inspector, or a police officer in charge of a police station, can grant an arrested suspect bail if no judicial officer is available, so long as the suspect is not charged with a crime specified in the Fifth Schedule to the Act, namely:

• Murder
• Rape or aggravated indecent assault
• Robbery
• Assault in which a dangerous injury is inflicted
• Malicious damage to property committed in aggravating circumstances as provided in section 143 of the Criminal Law Code (i.e. if it is committed with fire or explosives, or causes considerable loss, or is committed against State property).
• Unlawful entry into premises committed in aggravating circumstances as provided in section 131 (2) of the Criminal Law Code (i.e. if the accused entered a dwelling, or used violence, or committed some other crime — e.g. theft)
• Theft, making off without payment, receiving any stolen property knowing it to have been stolen, fraud or forgery, if the amount or value involved in any such crime exceeds five hundred thousand dollars.
• Stock theft.
• Any crime under any enactment relating to the unlawful possession of, or dealing in, precious metals or precious stones.
• Any crime relating to the coinage or banknotes.
• Contravening section 20, 21, 22, 23, 24, 25, 26, 27 or 29 of the Criminal Law Code (i.e. treason, subverting constitutional government or crimes involving insurgency, banditry, sabotage or terrorism).
• A conspiracy, incitement or attempt to commit any of the above crimes

Although section 132 of the Act does not say so expressly, a police officer cannot grant bail after the accused person’s first appearance in court;  this limitation is essential to ensure that courts remain in direct and exclusive control over release on bail once the case is on the court roll.

Police officers should be prepared to grant bail in proper cases.  As stated by Reid Rowland Criminal Procedure in Zimbabwe p. 6-3:

“[S]ince the Act gives the authority to police officers to grant bail, they should not shirk their responsibility for deciding the question of bail on the pretext that a judicial officer will be available at some time in the future.  Nor should a police officer take the line that he is not qualified to decide such matters.  By virtue of his rank or appointment, he is qualified.  If the accused requests bail and the offence is one in respect of which a police officer may grant bail, the police officer should give proper consideration to the request.”

It has been suggested that an action for damages will lie against a police officer who refuses police bail on malicious grounds, or where a properly authorised police officer has simply refused to exercise his discretion.

A police officer may accept a deposit of bail money;  he has no power to accept sureties.