Search of persons and premises
Section 57 of the Constitution provides that every person has the right to privacy which includes the right not to have:
- their homes, premises or property entered without their permission;
- their person, home, premises or property searched.
These rights are not absolute as they are not listed under section 86(3) as rights that may not be limited by law. Therefore they may be limited by a law which complies with the provisions of s 86(2) of the Constitution.
The police have power under s 49 CPEA to search for and seize articles which are, or are on reasonable grounds believed to be, concerned in the commission of a crime; or which the police reasonably believe may afford evidence of the commission of a crime; or which are intended to be used in the commission of a crime or which the Police reasonably believe are intended to be so used.
A search may be done with or without warrant.
A search warrant is a document issued by a judicial officer or a justice of the peace authorising the police to carry out a search and to seize certain items. Such a warrant is issued in terms of s 50 CPEA.
Before issuing such a warrant on the application of the police, the judge should satisfy himself that the police have reasonable grounds for applying for such a warrant. Searches of premises and persons constitute an invasion of privacy and are only justifiable where there are good grounds for carrying out the searches. Section 57 of the Constitution forbids the searching of a person or his or her property or the entry onto his or her premises by others unless this is done for the enforcement of the law in circumstances where there are reasonable grounds to believe that the search or entry is necessary for the prevention or detection of a criminal offence or for the seizure of property which will provide evidence in relation to a criminal offence.
The application for a search warrant must therefore be supported by an affidavit from a police officer setting out the reasons why a search warrant is being sought. A search warrant must only be issued where, on the basis of the information from the police, the judge is satisfied that there are reasonable grounds to believe that the search will result in the discovery of certain articles which are believed on reasonable grounds to be concerned in the commission of a crime. The police may believe that the items have already been used to commit a crime or that they will be so used or that they will provide evidence of the commission of a crime.
The premises or persons who may be searched must be precisely described. In respect of search of premises, it must be stated whether the search is to be carried out during the day or night.
The items to be searched for and to be seized if found must again be specifically and precisely stated. The police may not be issued with a warrant which allows them to “go on a fishing expedition” in the hope that they may find some illegal items during the search.
In the case of Elliott v Commissioner of ZRP 1986 (1) ZLR 228 (H), the High Court held that a search warrant which had been issued was invalid because it was far too general and vague. No offence was identified and no attempt was made to identify the particular documents which were to be searched for and seized and to relate these documents to a particular offence.
When a warrant is issued the judge will fill in the standard form in which the relevant particulars will be entered. (See sample form in Appendix)
Under the Serious Offences (Confiscation of Profits) Act [Chapter 9:17] there are special provisions relating to the issue of search warrants to search for “tainted property” as defined in that legislation. See s 26 of that Act.
The Police have power under s 49 CPEA to search for and seize articles which are, or are on reasonable grounds believed to be, concerned in the commission of a crime; or which the Police reasonably believe may afford evidence of the commission of a crime; or which are intended to be used in the commission of a crime or which the Police reasonably believe are intended to be so used.
In Biti v Commissioner-General Chihuri & Ors HH-156-11 the applicant sought an interdict prohibiting the respondents from accessing his phone records. He contended that his right to privacy was being threatened thereby.
The court pointed out that s 54 (2) (a) and (b) CPEA permits the police to enter premises and obtain evidence upon reasonable suspicion that relevant information may be obtained therein.
The police were clearly authorized the police to obtain without warrant the required information not only upon reasonable suspicion that a crime has been committed but also for purposes of detecting crime. There was a reasonable suspicion in the present case and therefore the question of invasion of privacy does not arise. While the applicant has the right to privacy under section 18 of the Constitution, that right is not absolute. Thus where the police have reasonable cause to investigate crime the subject’s right to privacy must of necessity give way for the common good and public interest to fight crime. The law does not prohibit lawful invasion of privacy. What it prohibits is wanton and unlawful inversion of privacy. In this case as the police appear to be acting according to law, the application cannot succeed.
Seizure of items by police without warrant
In Chinjayani v Minister of Home Affairs & Ors 2010 (1) ZLR 280 (H) the court pointed out that the seizure of an article without a warrant in terms of s 51(1)(b) CPEA must satisfy the two requirements of subparas (i) and (ii). The officer effecting the seizure must on reasonable grounds believe that a warrant would be issued to him in terms of s 50(1()(a) if he applied for one; and that the delay in obtaining a warrant would prevent the seizure. Even if the officer has reasonable grounds for believing that a warrant would be issued, he must also, if the seizure is to be lawful, explain the effect of the delay in seizing the article while awaiting the issuance of a warrant of seizure. If the issue of the effect of delay is unexplained, the seizure cannot stand. If the seizure is to take place by virtue of a warrant, the warrant must, in terms of s 50(1) of the Act, be issued before the article is seized. The police officer must in those circumstances ascertain from the warrant the extent of the authority it gives him. A warrant does not have retrospective effect; the issue of a warrant after the article has been seized cannot legitimize the seizure.
In Chigwada v Commissioner-General, ZRP & Ors HH-69-11 the applicants were the registered owners of a particular vehicle. The vehicle was the subject of an investigation into an alleged fraud committed by the seller on two other parties before. It was seized by the police as exhibit evidence in terms of section 49 CPEA and placed in police custody. At the time of seizure the vehicle was at a garage undergoing repairs. The applicants sought the release of the vehicle contended that there was no legal basis for the police to interfere with their possession and ownership of the vehicle. The court held that the applicants failed to discharge the onus of proving that the police acted outside the law.
In Gonese & Anor v Commissioner of Police & Ors HH-54-12 the court decided that X who had been acquitted and no appeal was pending was entitled to the articles seized to be used as exhibits at his trial.
Constitutional provisions on rights of arrested or detained persons
Section 50(1) of the Constitution provides that a person arrested or detained must:
- be informed at the time of arrest of the reason for the arrest;
- be permitted, without delay—
- at the expense of the State, to contact their spouse or partner, or a relative or legal practitioner, or anyone else of their choice; and
- at their own expense, to consult in private with a legal practitioner and a medical practitioner of their choice;
and must be informed of this right promptly;
- be treated humanely and with respect for their inherent dignity;
- be released unconditionally or on reasonable conditions, pending a charge or trial, unless there are compelling reasons justifying their continued detention; and
- must be permitted to challenge the lawfulness of the arrest in person before a court and must be released promptly if the arrest is unlawful.
Section 50(4) provides that a person who is arrested or detained for an alleged offence has the right—
- to remain silent;
- to be informed promptly of their right to remain silent and of the consequences of remaining silent and of not remaining silent;
- not to be compelled to make any confession or admission; and
- at the first court appearance after being arrested, to be charged or to be informed of the reason why their detention should continue, or to be released.
Section 50(5) provides that a person who is detained, including a sentenced prisoner, has the right—
- to be informed promptly of the reason for their being detained;
- at their own expense, to consult in private with a legal practitioner of their choice, and to be informed of this right promptly;
- to communicate with, and be visited by a spouse or partner, a relative, the person’s chosen religious counselor, the person’schosen legal practitioner, the person’s chosen medical practitioner and subject to reasonable restrictions imposed for the proper administration of prisons or places of detention, anyone else of the person’s choice;
- to conditions of detention that are consistent with human dignity, including the opportunity for physical exercise and the provision, at State expense, of adequate accommodation, ablution facilities, personal hygiene, nutrition, appropriate reading material and medical treatment;
- to challenge the lawfulness of their detention in person before a court and, if the detention is unlawful, to be released promptly.
These provisions have now been incorporated into the CPEA by the following new section—
385A Rights of arrested or detained persons and interested parties
(1) In this section—
“interested party”, in relation to a detained person, includes—
(a) a relative, friend or employer of the detained person; and
(b) any person with a legitimate interest in the detained person’s welfare; and
(c) a legal practitioner representing the detained person or engaged by a person referred to in paragraph (a) or (b) to represent the detained person;
“responsible person” means the member of a State agency primarily responsible for a detained person’s detention or custody;
“State agency” includes the Police Service, the Prison Service, every branch of the Defence Forces, and any other organisation consisting wholly or mainly of persons employed by the State.
(2) A person who has been arrested or is detained, whether under this Act or any other enactment, shall be permitted without delay—
(a) to exercise his or her right to contact, at the state’s expense, any one of the persons specified in section 41A(1)(d):
Provided that if the arrested or detained person does not succeed, without any fault on his or her part, in contacting a person of his or her first choice, the arrested or detained person shall be allowed to contact any other person specified in section 41A(1)(d) until he or she succeeds in contacting him or her; and
(b) to obtain and instruct, at his or her own expense, a legal practitioner of his or her own choice, and to communicate privately with that legal practitioner:
Provided that, where an arrested person must be produced before a court within forty-eight hours after his or her arrest in accordance with section 32, it shall be lawful for the police to take the arrested person to court in the absence of his or her legal practitioner if—
(i) the arrested person, without any fault on the part of the police, fails to contact, obtain or instruct a legal practitioner of his or her own choice; or
(ii) where the arrested person succeeds in contacting, obtaining or instructing a legal practitioner of his or her own choice, that legal practitioner, without any fault on the part of the police, fails to represent the arrested person within that period or at the court where he or she must appear.
(3) The responsible person shall inform any interested party, promptly on request, of the detained person’s whereabouts and of the reasons for the detained person’s detention or custody unless there are compelling reasons for not doing so (the proof whereof rests with the responsible person).
A warrant of arrest is a document issued by a judicial officer or a justice of the peace authorising the police to arrest a person in connection with the offence specified in the warrant.
An arrest warrant will be issued in terms of s 33 CPEA. The application for such a warrant may only be made on written application by the Prosecutor-General or the local public prosecutor or a police officer who is an inspector or higher in rank or is a member in charge of a police station who is a section officer or higher in rank.
In the written application, the applicant must:
- specify the person to be arrested and the offence alleged to have been committed by that person; and
- declare that on the basis of the information available to him he has reasonable grounds for suspecting that this person has committed the specified offence.
The magistrate may also issue an arrest warrant on the basis of information given on oath before him by another person that he has information which leads him to have reasonable grounds for suspecting that a specified offence has been committed by the person.
Where the application is a written one, the question arises whether the magistrate hearing the application must satisfy himself that the applicant does actually have reasonable grounds for suspecting that an offence has been committed. In other words, does the magistrate have to probe the facts upon which the application is based to satisfy himself that there are reasonable grounds for suspicion? All that the section requires is that the applicant declares that on the basis of the information available to him, the applicant has reasonable grounds for suspecting that the specified offence has been committed. It does not say that the applicant has to give details of the facts upon which he formed his suspicion. At face value, the section does not require the magistrate to delve into the facts as the applicant is not obliged to set out the facts in his application. In the South African case of Prinsloo & Anor v Newman 1975 (1) SA 481 (A), the South African Appellate Division decided that as the applicant in a written application is not obliged to set out the facts upon which he relies for his conclusion that there are reasonable grounds of suspicion, the magistrate is not called upon to consider the correctness of the conclusion of the applicant. This does not mean that the magistrate does not exercise a discretion in considering whether or not to issue a warrant. He must satisfy himself that the alleged offence is an offence at law, and that it is of such a nature and gravity as to justify the issuing of a warrant.
There is no case in Zimbabwe that has decided this issue. However, it could be argued that the whole purpose of court applications for arrest warrants is to allow the court to exercise a supervisory role in respect of such applications and that impliedly therefore the court must satisfy itself that there are reasonable grounds for the issuing of a warrant and it can only do this if it probes the facts. After all section 13 of the Constitution requires that a person only be deprived of his liberty upon reasonable suspicion of his having committed or being about to commit a crime. See Muzonda v Minister of Home Affairs & Anor S-17-93. Thus if the court issued a warrant where there were no reasonable grounds for suspicion it would be authorising an unlawful arrest. On the other hand, if the section does not require the applicant to state the facts upon which his suspicion is based, the court would not have before it the facts and this makes it impossible for the court to exercise this sort of supervisory role as the legislation stands at present. By contrast s 50(1) CPEA dealing with search warrants explicitly requires the magistrate to delve into whether there are reasonable grounds for believing that any such article is in the person’s possession or upon any premises.
A magistrate may only issue a warrant for arrest if the offence was committed in his area of jurisdiction or the person to be arrested is suspected to be or is in his area of jurisdiction when the warrant is issued.
The warrant may be issued on any day of the week and it remains in operation until it is cancelled by the person who issued it or until the person is arrested on the basis of the warrant.
In terms of s 33(1) CPEA where a person has been arrested without warrant, an application can be made by the police to a magistrate for the further detention of that person. This warrant is supposed to be made in the same manner as the ordinary warrant for arrest. Magistrates should grant warrants for further detention on a very sparing basis as in the past the police have sought further detention warrants simply in order to have a longer period of time to interrogate accused persons without bringing them before the courts. An accused has a right to be brought before a court as soon as possible so that he can apply for bail and so that he has a chance to complain about any mistreatment he has received while in police custody.
In the case of Nyamhoko & Ors v OC ZRP Manicaland Province & Ors HH-37-06 the applicants were arrested by the police on allegations of committing offences under the Public Order and Security Act. They were maltreated while in custody and denied access to their legal practitioners. State counsel who tried to intercede were threatened by the police and had to flee the district. The applicants sought a declaratur that their detention, which had been for more than 48 hours, was unlawful, as well as an order for the return of property taken from them. No warrant for further detention was shown to the court. The court held that where an applicant has been held beyond the 48 hour period, it is competent to declare the whole detention period illegal. Even assuming in favour of the respondents that somewhere in their offices warrants for further detention lay unattended, the facts before the court required that the detention be declared illegal.
Arrest without warrant
In cases of arrest without warrant, a person can only be lawfully arrested in connection with a criminal offence if offence is committed in the presence of the arresting officer or if the person arresting officer has a reasonable suspicion that the person has committed or is about to commit a criminal offence. Where an arrest warrant has been obtained, however, by one police officer, it can be lawfully executed by another officer, even though the second officer may not himself know the basis upon which the warrant was issued and thus cannot say that he reasonably suspected that the person he was arresting had committed an offence. This applies whether the arrest was on the basis of a warrant of arrest or was done without warrant.
The circumstances in which a person may lawfully be arrested without warrant are set out in s 25 CPEA. They include cases where the person arrested has committed or has attempted to commit a crime in the presence of the peace officer arresting him and where the peace officer has reasonable grounds for suspecting that the person has committed any of the offences contained in the First Schedule. The offences in the First Schedule are statutory offences where the maximum punishment is imprisonment for more than six months without the option of a fine.
If the person making an arrest without warrant does not have a reasonable suspicion that a crime has or is about to be committed, the arrest is illegal and the lawyer representing the arrested person can apply to the High Court for the immediate release of that person. See s 13(2)(e) of the Constitution of Zimbabwe. The arresting officer and the Ministry of Home Affairs should be cited as the respondents.
Reasonable suspicion is not the same as proof beyond reasonable doubt. What is required is that the person making the arrest must have information on the basis of which a reasonable person would hold a suspicion that the person to be arrested had committed or was about to commit the criminal offence: Purcell-Gilpin 1971 (1) RLR 241; Miller 1973 (2) RLR 387; Moll v Commissioner of Police & Ors 1973 (1) ZLR 234 (H); Allan v Minister of Home Affairs 1985 (1) ZLR 339 (H); Bull v Attorney-General & Anor 1986 (1) ZLR 117 (S); Gwenyure v Minister of Home Affairs HH-702-87; Attorney-General v Blumears 1991 (1) ZLR 118(S); Feldman v Minister of Home Affairs S-210-92; Gous v Minister of Home Affairs & Ors 1992 (2) ZLR 142 (H); Muzabazi v Jambawu & Ors HH-234-92; Dube J v Officer Commanding ZRP Nkayi District & Ors 2010 (2) ZLR 462 (H).
Even if there was reasonable suspicion, the police have the discretion whether or not to arrest. If, in the circumstances, the arrest was not justified the arrest will still be unlawful and the arrested person will be entitled to claim delictual damages. The exercise of this discretion to arrest may be interfered with when exercised grossly unreasonably. In Muzonda v Minister of Home Affairs & Anor 1993 (1) ZLR 92 (S) it was held, that although the police officer was authorised to arrest the appellant, he had a discretion as to whether to do so or not; the power of arrest is not intended always, or even ordinarily, to be exercised. Further, the principles applicable to administrative law applied: that the court would have to find that the exercise of the discretion was so outrageous in its defiance of logic or of accepted moral standards that no sensible person who had applied his mind to the question could have arrived at it. Some of the considerations to be taken into account in determining whether an arrest is open to challenge are the possibility of escape, the prevention of further crime and the obstruction of police enquiries. On none of these grounds could the exercise of the discretion be justified in the Muzonda case. In Paradza v Minister of Justice & Ors S-46-03 the Supreme Court held that there had been an abuse of discretion which was unconstitutional on the basis that it violated s13 and 18 of the constitution- right to liberty and to protection of the law. See also Botha v Zvada & Anor 1997 (1) ZLR 415 (S); Nyatanga v Mlambo NO & Ors 2003 (1) ZLR 508 (H).
The onus is upon the person making the arrest to prove that the arrest was lawfully justified: Stambolie v Commissioner of Police 1989 (3) ZLR 287 (S).
Where a person whose arrest is attempted resists the attempt and cannot be arrested without the use of force, the person attempting to carry out the arrest has the right to use such force as it reasonably justifiable in the circumstances to aver any resistance put up to the arrest. The court must place itself in the shoes of the accused when looking into whether or not the force applied to effect the arrest was reasonable: Ncube & Ors HB-61-03.
Maximum periods of custody
The maximum period for which a person can be held after arrest or detention before that person must be brought before a court of law is now provided for in section 50(2) of the Constitution of Zimbabwe. The relevant provisions are as follows:
50(2) Any person who is arrested or detained—
(a) for the purpose of bringing him or her before a court; or
(b) for an alleged offence;
and who is not released must be brought before a court as soon as possible and in any event not later than forty-eight hours after the arrest took place or the detention began,as the case may be, whether or not the period ends on a Saturday, Sunday or publicholiday.
(3) Any person who is not brought to court within the forty-eight hour period
referred to in subsection (2) must be released immediately unless their detention has
earlier been extended by a competent court.
This provision applies both to arrests and detention with warrant and arrests and detention without warrants.
These constitutional provisions are now incorporated into the CPEA as a result the Criminal Procedure and Evidence Amendment Act, Act 2 of 2016. The new provisions follow verbatim the constitutional provisions:
Section 32 (3) of the Act now reads:
“Any person who is arrested or detained—
a) for the purpose of bringing him or her before a court, or
b) for an alleged offence;
and who is not released must be brought before a court as soon as possible and in any event not later than forty-eight hours after the arrest took place or the detention began, as the case may be, whether or not the period ends on Sunday or a public holiday.”
In Chiramba & Ors v Minister of Home Affairs & Ors 2008 (2) ZLR 269 (H) the applicants, all activists in the main opposition party, were detained by the police. For some two weeks the applicants were kept incommunicado. They had no access to their lawyers for nearly two weeks. They were not informed of the reason for their arrest, and enquiries by their lawyers were met with denials that the applicants were in police custody at all. The applicants sought orders (a) declaring their arrest and continued detention unlawful; (b) requiring the respondents and all those acting through them or on their behalf to permit applicants access to medical treatment at medical centres of their choices; and (c) directing the respondents produce the applicants before a High Court judge in chambers within two hours of the order being made or, alternatively, to take the applicants for a remand hearing at the magistrates court by a stated time, failing which the respondents should forthwith release all the applicants from custody.
The court held that Zimbabwe is a signatory to the International Covenant on Civil and Political Rights. As a state party to this treaty, Zimbabwe is bound by the obligations flowing from the treaty, which deals, inter alia, with the rights of persons who have been arrested and detained on criminal charges. The treaty places two types of obligations on states: firstly, the duty to respect and ensure human rights and, secondly, the duty to guarantee that those same rights are respected. The first set of obligations is both positive and negative in nature; on the one hand the state must refrain (whether by act or omission) from violating human rights; and on the other the state must ensure that, through the adoption of whatever means necessary, such rights can be actively enjoyed. Section 13(3) of the Constitution guarantees the rights of persons who have been detained, and s 32(2) CPEA requires that a person who has been arrested must be brought before a judge or magistrate within 48 hours. The respondents had denied the applicants the protection of the law. Their conduct in doing so should be deprecated.
In Madono 2015 (1) ZLR 807 (H) arrested persons has been held beyond the maximum 48 hour period and no warrant for further detention had been obtained before the expiry of the 48 hour period. They were only taken before a magistrate after 72 hours and an application was made for their immediate release. The High Court held that the magistrate should not have condoned the illegal detention of the accused. The magistrate had the jurisdiction to release the accused and he should have ordered their immediate release.
Arrest with warrant
In terms of s 33(1) CPEA where a person has been arrested without warrant, an application can be made by the police to a judge for the further detention of that person. This warrant is supposed to be made in the same manner as the ordinary warrant for arrest. Judges should grant warrants for further detention on a very sparing basis as in the past the police have sought further detention warrants simply in order to have a longer period of time to interrogate accused persons without bringing them before the courts. An accused has a right to be brought before a court as soon as possible so that he can apply for bail and so that he has a chance to complain about any mistreatment he has received while in police custody.
Where the person is arrested on the basis of an arrest warrant, he must be brought as soon as possible to a police station or a charge office unless the warrant specifically authorises that he be taken to some other place: s 34(3) CPEA
Thereafter he must be brought as soon as possible before a judicial officer upon the charge mentioned in the warrant: s 34(3) CPEA.
Arrest without warrant
Where a person is arrested without warrant he must be taken as soon as possible to a police station or a charge office and if he is not released, he may not be detained for more than forty-eight hours. However, the detention can be extended beyond this period if a judge, magistrate or justice of the peace issues a warrant for further detention: s 32(2) CPEA.
In the case of Nyamhoko & Ors v OC ZRP Manicaland Province & Ors HH-37-06 the applicants were arrested by the police on allegations of committing offences under the Public Order and Security Act. They were maltreated while in custody and denied access to their legal practitioners. State counsel who tried to intercede were threatened by the police and had to flee the district. The applicants sought a declaratur that their detention, which had been for more than 48 hours, was unlawful, as well as an order for the return of property taken from them. No warrant for further detention was shown to the court. The court held that where an applicant has been held beyond the 48-hour period, it is competent to declare the whole detention period illegal. Even assuming in favour of the respondents that somewhere in their offices warrants for further detention lay unattended, the facts before the court required that the detention be declared illegal.
The provision for obtaining a warrant for further detention is open to abuse as the police can obtain this warrant without even having to appear personally before a magistrate and without taking the prisoner before the magistrate by applying to a justice of the peace who is a police officer, or obtaining authorization for further detention from a magistrate. On occasions it has apparently been used as a device for keeping the prisoner incommunicado for extended periods without access to his lawyer or relatives and without access to the courts to apply for bail. If the police are using these provisions in an abusive fashion, an urgent application can be made to the High Court for a court order to oblige the police to take the arrested person before a court so that the case can be properly remanded and an application for bail can be made. Although the provisions are not entirely clear on this point, it was surely not envisaged that the 96 hour upper limit for bringing a person arrested without warrant before a court can be completely circumvented by relying upon the provisions relating to further detention. The police officer who has denied access and the Ministry of Home Affairs can be cited as respondents in this action.
Special provisions for offences in Third and Ninth Schedules
There are special provisions for prolonged detention of persons who are charged with offences in the Third and Ninth Schedules CPEA. There apply both to persons arrested with warrant and those arrested without warrant.
If the charge is for an offence in paragraph 10 of the Third Schedule (i.e. certain offences under the Public Order and Security Act) and the judicial officer is satisfied that there is a reasonable suspicion that he has committed the offence, he must order the continued detention of that person for a period of 21 days: s 34(4)(a) CPEA (with warrant) and s 32(3a) CPEA (without warrant) These two sections are not easy to interpret, since the Third Schedule was replaced in 2006 and the new Schedule has no paragraph 10; furthermore, the offences under POSA have since been repealed and re-enacted in the CLCA.
If the charge is for any offence in the Ninth Schedule, the Prosecutor-Generalmay produce a certificate that the offence in question involves significant national interest of Zimbabwe and further detention for a period up to 21 days is necessary because of the complexity of the case, and/or the difficulty of obtaining evidence in relation to the offence, and/or the likelihood of X concealing or destroying evidence relating to the offence. Where such a certificate is produced and the judicial officer is satisfied that there is a reasonable suspicion that X committed the offence, he must order the continued detention of X for a period of 21 days or the lesser period specified in the Attorney-General’s certificate: s 34(4)(b) CPEA (with warrant) and s 32(3a) and (3b) (without warrant). However, with arrest without warrant there are certain requirements in addition to the Attorney-General’s certificate. The arresting officer must be an officer of or above the rank of assistant inspector at the time of the arrest and where the arrest was disclosed through an anonymous complaint, a copy of the recorded complaint must be laid before the judicial officer.
No court may admit to bail any person detained for 21 days under the provisions above: 34(5) CPEA and s 32(3c) CPEA.
Where X is detained for 21 days under these provisions, the arresting officer must make periodic reports at intervals of not more than 48 hours to the Prosecutor-Generalon the progress of the investigations. If the Prosecutor-General believes on the basis of such a report that X’s detention is no longer justified, he may order the immediate and unconditional release of the person: 34(5) and 32(3c) CPEA.
Within 48 hours of the expiry of the 21-day detention period the detaining authority may obtain an order or warrant for further detention of such person pending the outcome of their criminal investigations. However, X will still have the right to apply for bail: s 34(6) and s 32(3d) CPEA.
Section 50(7) of the Constitution provides that if there are reasonable grounds to believe that a person is being detained illegally or if it is not possible to ascertain the whereabouts of a detained person, any person may approach the High Court for an order—
- of habeas corpus, that is to say an order requiring the detained person to be released, or to be brought before the court for the lawfulness of the detention to be justified, or requiring the whereabouts of the detained person to be disclosed; or
- declaring the detention to be illegal and ordering the detained person’s prompt release;
- and the High Court may make whatever order is appropriate in the circumstances.
Section 50(8) provides that an arrest or detention which contravenes this section 50, or in which the conditions set out in this section are not met, is illegal.
Section 50(9) provides that a person who has been illegally arrested or detained is entitled to compensation from the person responsible for the arrest or detention, but a law may protect the following persons from liability under this section—
- a judicial officer acting in a judicial capacity reasonably and in good faith;
- any other public officer acting reasonably and in good faith and without culpable ignorance or negligence.
Unlawful detention of child with parent
In Chiramba & Ors v Minister of Home Affairs & Ors 2008 (2) ZLR 269 (H) the police had detained a child together with the parent and had held the parent and child for some two weeks. The court held that the detention of the child was illegal. The court pointed out that Zimbabwe was also a signatory to the Convention on the Rights of the Child and accordingly it must be seen, through the acts of its public officials, to be protective of the rights of the child. Article 16 of the Convention provided that no child shall be subjected to arbitrary or unlawful interference with his or her privacy, family, home or correspondence, nor to unlawful attacks on his or her honour and reputation. Neither the Criminal Procedure and Evidence Act nor the Childrens’ Act provided for a child in a situation like this; they dealt with young persons suspected of having committed criminal offences. The Prisons Act made provision in s 58 for dealing with the unweaned child of a female prisoner. Section 84(1) of the Children's Act did not expressly address the plight of a baby taken by police who have arrested its mother but the prohibition against detention of minors is implied in this section. The conduct of the respondents in this case did not in any way uphold this international obligation to protect and promote the rights of the child. To subject a two year old to the rigours of detention simply on the grounds that its mother may have committed some criminal offence is totally unconscionable and immoral, made worse by the denial of basic rights to the mother.
A remand will usually be requested by the State when it is not ready to bring a case to trial because police investigations are still taking place or the police may be experiencing difficulties in locating vital State witnesses. The State will ask that X be remanded either in custody or out of custody. If X is remanded out of custody, he may be remanded on bail or without bail being required. The magistrate may not order a remand in excess of fourteen days at a time without X’s consent: proviso to s 165 CPEA. At the end of the fourteen-day period X can be remanded again for further periods of fourteen days until the State is ready to start the trial.
See Appendix for sample Remand Form.
Other reasons why remands may be requested by the State include these:
- the prosecutor is awaiting the Attorney-General’s authority to prosecute or his instructions as to which court the case should be tried in;
- the prosecutor needs time to arrange the court roll so that the case can be fitted in for trial;
- the prosecutor has returned the docket to the police so that certain points can be clarified or further investigations can be carried out on certain points and the police have not yet responded to these points.
X himself or herself may also request a remand. He or she may do so in order that he or she can have time to organise legal representation or in order to contact defence witnesses.
Where accused indicted for trial in High Court
Where an accused has been indicted for trial in the High Court in terms of s 66(2) CPEA the magistrate is obliged to remand the accused in custody even if the accused has previously been released on bail. Only the High Court can release the accused on bail on application by the accused to the High Court.
Right to be tried within reasonable period
Section 69 of the Constitution provides that a person charged with a criminal offence has a right to a fair hearing within a reasonable time by an independent and impartial court. (Section 18(2) in the previous constitution.) Section 49 provides for the right to personal liberty which includes the right not to be detained without trial.
Section 50(6) of the Constitution provides that a 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.
Refusal of further remand
Magistrates who preside over applications for initial and further remands have a duty to observe the constitutional rights to personal liberty and trial within a reasonable period of time. If the court is of the view that further remand of the accused is not justified or reasonable, it may remove the accused from remand, usually on the basis that the State can proceed against the accused by way of summons when the docket is complete and the State is ready for trial. The effect of an order for refusal of further remand is not to discharge the accused. The charge remains extant until such a time that the discharge of the accused by withdrawal of the charge before plea or an acquittal after plea. Mhari v Mangoti & Ors 2015 (1) ZLR 420 (H)
Application by accused for discharge in default of prosecution
Where an accused makes a formal application in terms of s 320 CPEA before the trial court for discharge in default of prosecution and succeeds with this application, this will result in dismissal or the summons, indictment or charge and the acquittal of the accused of the charges against him or her and the rendering of the charge unworthy of consideration for any purpose. Mhari v Mangoti & Ors 2015 (1) ZLR 420 (H)
Dismissal of charge for want of prosecution
Section 160(2) CPEA provides that if an accused person is not brought to trial after the expiry of six months from the date of his or her committal for trial, his or her case shall be “dismissed”. Such “dismissal” does not amount to an acquittal, nor does it relate to prescription. It relates to the committal and the effects or consequences or implications thereof. The subsection is meant to protect accused persons from being unreasonably kept under committal for trial for longer than six months when the trial has failed to take place during that period, as well as to ensure that the Attorney-General ensures that trials of accused persons committed for trial are expeditiously conducted - Mukuze & Anor v A-G (2) HH-17-05 and Mhari v Mangoti & Ors 2015 (H).
In Matapo 2011 (1) ZLR 514 (H) the court pointed out that a dismissal for want of prosecution in terms of s 160(2) CPEA means that the person must forthwith be discharged from custody. It does not, however, bar further proceedings but upon being served with a notice of trial the accused may not be required to pay further bail or be committed to custody. For such an accused to be brought to trial, it is not necessary that he be re-indicted before a magistrate in terms of s 66 CPEA, which enjoins a magistrate to commit the accused to custody. Section 66 provides for a summary committal of an accused where the Attorney-General is of the opinion that any person is under reasonable suspicion of having committed an offence for which the person may be tried in the High Court. After committal for trial and the dismissal of the case in terms of s 160(2), the Attorney-General has no need to revisit the process of committal; it is inconceivable that he will formulate a second opinion over a matter in which he previously caused the accused to be committed for trial. In any event, in terms of s 137, as soon as the indictment has been lodged with the registrar, the case is deemed to be pending.
Where at the initial or subsequent remand the State is seeking the remand in custody of X, the court must only grant this application provided that there is a reasonable suspicion that X committed the crime with which he is being charged. In the case of Attorney-General v Blumears & Anor 1991 (1) ZLR 118 (S), the following principles were laid down by the Supreme Court:
The State must allege facts that constitute a crime and justify a reasonable suspicion that the accused committed the crime. The accused may submit that the State has not alleged such facts or may lead cogent evidence which obliges the magistrate to reject those facts. The remand procedure is an important protective process to ensure the finding of a reasonable suspicion by someone independent of the police and prosecution. The hearsay rule and the rules relating to cross-examination of witnesses do not apply. Statements can be made from the bar by legal counsel. Although the onus is on the State, it does not have to show guilt beyond reasonable doubt or on a balance of probabilities. The court cannot reject State allegations simply because they seem to be of doubtful validity.
In Lupepe v AG & Anor HB-130-93, the court said that before putting anyone on remand, the police must satisfy themselves that the information they are acting on is sufficient to raise a reasonable suspicion and that there are enough grounds to place him on remand. The State must disclose to the court grounds which when tested objectively give rise to a reasonable suspicion against X. The failure of an unrepresented accused to oppose the initial remand did not assist the State. The applicant had been detained and remanded on the basis of the fact that that information had been received implicating him in a gold robbery and murder. The State at no stage said what the source of that information was; the co-accused did not implicate applicant and he was not found in possession of anything which could implicate him. He was entitled to apply to the High Court for an order for his release.
In Smyth v Ushewokunze & Anor 1997 (2) ZLR 544 (S), it was held that in order to justify the applicant’s deprivation of freedom on the grounds of reasonable suspicion that he had committed an offence, it was not necessary to establish his guilt beyond a reasonable doubt or even on the balance of probabilities. The test was the same as that for arrest without a warrant. There had to be sufficient information to warrant a prudent person in suspecting that the applicant was legally responsible for the alleged offence.
The prosecutor must be as open and forthright as possible when advising the remand court of the facts relied on. It can be very difficult deciding what to reveal and what to conceal in sensitive investigations which X might interfere with, but he should never conceal facts simply to hinder the defence and must ensure that he alleges enough to implicate X.
Even if X does not complain that there is no case against him and therefore that there is no basis for remanding him, the court must still satisfy itself that there are reasonable grounds for the remand. The remand magistrate should obtain information from the prosecutor justifying the existence of a reasonable suspicion on the initial remand, and the prosecutor must assure and satisfy the court that there is still a reasonable suspicion against him at all subsequent remands. This applies especially when X is not legally represented.
In Williams & Anor v Msipha NO &Ors 2010 (2) ZLR 552 (S) the Supreme Court dealt with the requirements for remand. It pointed out that under s 13(2)(e) a person may only be deprived of his or her liberty where there is a reasonable suspicion of that person having committed a criminal offence. The judicial officer must, therefore make a finding that the facts on which the charge laid is based provide ground for a reasonable suspicion that he or she has committed that offence. Where the accused challenges the legality of the charge on the ground that the offence itself was not committed, the onus is on the State to first show that, if proved at the trial. The facts on which the charge is based would constitute the offence charged. Only then would the question arise whether the facts provide grounds for a reasonable suspicion that the accused committed the offence. The magistrate was required to take into account the essential elements of the offence and the offence and the conduct which, if proved at the trial, would constitute the offence charged. He was required to apply the knowledge of the statute to the conduct actually committed by the accused and decide whether it constituted the prescribed conduct.
Maltreatment in custody
If a person brought to court for remand complains that he or she has been tortured or assaulted by police officers or prison officers whilst in custody, the magistrate must investigate this matter. The magistrate should make written notes about the complaint and may also ask the prisoner to show him the injuries that he or she claims have been inflicted. Again the magistrate must make notes on what injuries he or she has observed on the prisoner. Where allegations are made of serious mistreatment and particularly the magistrate has observed physical signs of such mistreatment, the magistrate should order that the prisoner be medically examined. If the medical report point to physical mistreatment in custody, the magistrate should then order the authorities to conduct an expeditious inquiry and make a report to him or her about the results of this inquiry.
In Makawa & Anor 1991 (1) ZLR 142 (S) the court commented that although it was aware “that allegations of police maltreatment are commonly made by accused persons and that such allegations are often spurious. But the frequency with which they are made ought not to justify ignoring them. It is a matter of gravity to the State that policemen have abused their positions in this manner. It is even more serious to allege that the reason for such abuse was to force the victim to say or do something he would not otherwise have said or done. Where an accused person stands in jeopardy of a criminal conviction, should the statement made because of the alleged maltreatment be believed, it is incumbent on the judicial officer to investigate to the fullest possible extent the veracity of the allegations.”
The civil court will award substantial damages where a person has been tortured whilst in police custody. In Karimazondo & Anor v Minister of Home Affairs 2001 (2) ZLR 363 (H) a police officer and his wife were arrested on allegations of murder. The wife was tortured while in custody and suffered long-lasting physical and psychological effects, full details of which were disclosed in medical reports. The court held that the circumstances of the case were exceedingly grave and warranted a substantial award of damages. The actions of the police were in flagrant and reckless disregard of the rights of the persons concerned. The fact of the detention in itself created a hardship. The brutality and callousness with which the assaults were perpetrated on the woman instilled in any right thinking person a sense of horror and shock. The unlawful and inhumane treatment to which P1 was subjected to was totally unnecessary, vindictive and malicious. The court made an award which in money terms expressed its disapproval of the seriousness, brutality and humiliating effect of such treatment. The decline in the value of money in recent years was also taken into account.
In the case of Reza & Anor HH-02-04 the court strongly condemned the practice of torture by police officers. The two police officers had tortured a criminal suspect by beating him on the soles of his feet. The officers were convicted of assault with intent to do grievous bodily harm. The court stated that the torture inflicted by the police officers called for severe censure in terms of punishment
Mentally disturbed accused prior to trial
Section 26 of the Mental Health Act sets out in detail the procedure for dealing with cases in which persons appearing before the magistrate on remand or for any other purpose prior to arraignment on a criminal charge on a charge of committing an offence which the magistrate considers will not merit imprisonment without the option of a fine or a fine exceeding level three.
Section 27 of the Mental Health Act deals with the procedure to be followed when it appears to the Prosecutor-General or a person in charge of a prison that a person detained on a charge pending trial is mentally disordered. Basically a report must be made without delay to a magistrate who must take the steps provided for in that section.
It is most undesirable that juveniles should be remanded in prison custody along with adult prisoners up to the time they are tried. If the juveniles have to be remanded in custody, all efforts must be made to place them in an institution such as a juvenile reformatory until they are tried. Magistrates should ensure that juveniles are brought for trial as soon as possible.
In terms of the Constitution, every person has a right to a fair trial within a reasonable period of time and not to be deprived of his or her liberty unless there is a reasonable suspicion that he or she has committed a criminal offence. Magistrates presiding at remand hearings have a duty to ensure that these rights are respected by the State. A person should not be remanded in custody unless the magistrate is satisfied that there are facts indicating that there is a reasonable suspicion that the person has committed a crime. The magistrate should not continue to remand a case if there have been unreasonable delays in bringing it to trial.
Postponement of cases
All applications for postponement of cases before they have commenced must be made in open court. (The same applies to the postponement or adjournment of cases after they have commenced.) The prosecutor or X or his legal representative must explain to the court why a postponement or further remand is being sought. The court must be satisfied that the reason provided is a genuine one and that the postponement is necessary. The reasons for the postponement must be recorded. Where there is doubt about the genuineness of the reason for the requested postponement, the matter can be stood down and, if necessary, the matter can be referred to the Senior Public Prosecutor or to the senior prosecutor at the station. For more detailed instructions on how magistrates should deal with applications for postponement, see Appendix.
This procedure ensures that there is a written record of who applied for the postponement and why. This will be important in the event of questions later being raised as to undue delay in the completion of the trial and who was responsible for the delay. Disputes can arise months later between the defence and prosecution as to who was to blame for the delay in finalising the case. These disputes can be easily resolved by checking the record of the case. This will ensure that accused persons do not escape proper punishment where they are in fact responsible for the delay and not the State as alleged.
In Martin v A-G & Ors S-53-93 the State applied to remand applicant on a charge under the Prevention of Corruption Act. The defence argued that the facts alleged did not disclose an offence, therefore that a remand was in violation of the Constitution, and asked for the matter to be referred to the Supreme Court. The magistrate considered the matter and held that the essential elements of the offence were alleged, and refused to refer the matter because it was frivolous and vexatious. Applicant applied to the Supreme Court under s 24(1) of the Constitution.
The appeal court decided that:
- The magistrate should not have decided the point of law and then decided that the application was vexatious or frivolous. He was obliged to refer the decision on the law to the Supreme Court unless it was clearly groundless and so devoid of any merit that no reasonable person could argue it, or clearly mala fide and put forward in the knowledge that it could not succeed.
- Every individual can rely on s 13(2)(e) of the Constitution to challenge a remand on the grounds that there is no reasonable suspicion that he has committed an offence (or is about to do so). He can adduce evidence at the remand.
- A remand even out of custody is a deprivation of personal liberty. An order to surrender his passport is a deprivation of the constitutional right under s 22(1) to leave and re-enter Zimbabwe. Refusing to refer the matter to the Supreme Court is a denial of his constitutional right under s 18(1) to the protection of the law.
- A man claiming to be deprived of such constitutional rights is entitled to apply to the Supreme Court for redress under s 24(1), subject to s 24(3), for an order declaring that the Declaration of Rights has been breached by the magistrate, and declaring that the remand was unconstitutional.
- In this case, the State had not alleged sufficient facts and the application was allowed with costs.
Courtesy to witnesses
Out of courtesy and consideration for the witnesses they should be told why the trial cannot proceed and an apology should be given to them for the time that they have wasted in coming to court in vain.
Witnesses often suffer great inconvenience in having to come to court, especially where they reside at a place far away from where the proceedings are taking place. It is an even greater burden if they have to come back again on one or more subsequent occasions and steps must be taken to ensure that such inconvenience does not occur by trying to avoid unnecessary postponements. If postponements cannot be avoided, then the witnesses are at least entitled to receive an explanation and apology. The best person to do this is the magistrate rather than it being done by the prosecutor in the corridors. By bringing the witnesses before the magistrate, the witnesses are at least given the impression that they have been “heard” by the court and the magistrate is able to convey the message that their attendance on this occasion is appreciated.
Witnesses in attendance should be brought into court and warned by the court to come back on the new trial date. The names of the witnesses so warned and the new trial date must be recorded. This device saves the police having to serve fresh subpoenas on these witnesses.
If the reason why there has to be a postponement is that X has failed to attend for his trial, no new trial date will be fixed as there will be uncertainty as to when X will be located and when he can be brought to court. The witnesses should then be told that the case has had to be postponed because of the absence of X. The witnesses must be told that they will have to come back to give evidence at a date which will be fixed in the future and that they will receive subpoenas telling them when to come back.
However, if calling of the magistrate will take some time, it will be better if the prosecutor informs the witnesses as soon as he knows that a matter will have to be postponed.
If it is known that the case will have to be postponed at the start of the court day, then witnesses should not be kept waiting around until the end of the day and then dismissed; they should be dismissed as early as possible with an appropriate explanation and apology.
The prosecutor dealing with the case which has been postponed should personally ensure that the new trial date is inserted in the set down book for the appropriate court. Postponed cases should be given priority over all other cases set down for that date. The more often the case has been postponed, the greater the priority which it must be accorded. Whenever possible, cases should not be remanded to a date a long time hence. Indeed, wherever possible, cases should be rolled-over to the next day if there is a realistic prospect that they can be heard then. Witnesses who have travelled long distances can then be accommodated overnight, heard the next day and then be allowed to return to their homes.
Witnesses should never be dismissed without being heard simply because a “vital” witness is not available. The “vital” witness can be heard at a later date. (This is largely based on the Chief Magistrate’s Circular No. 17 of 1990 and the Attorney-General’s Circular No. 5 of 1991).
All applications for postponements of cases must be made in court. There must be valid reasons for granting postponements. When granting a postponement the magistrate must record who applied for the postponement and on what basis.
Bail Pending Trial
Reid-Rowland Chapter 6
General constitutional provision
Section 50(1)(d) of the Constitution provides that a person arrested or detained must be released unconditionally or on reasonable conditions, pending a charge or trial, unless there are compelling reasons justifying their continued detention. (Emphasis added).
Entitlement to bail [s 117]
This 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. The provision reads as follows:
“Subject to this section and section 32, a person who is in custody in respect of an offence is 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.”
Application for bail [s 117A]
Subject to the proviso to section 116, an accused person may at any time apply verbally or in writing to the magistrate before whom he or she is appearing to be admitted to bail immediately or may make such application in writing to a judge or magistrate. A written application for bail must be made in such form as may be prescribed in rules of court.
A person may also make an application for the alteration of his or her bail conditions.
The applicant must give reasonable notice to the Prosecutor-General for an application to the local prosecutor for a bail application to a magistrate.
Every written bail application must be disposed of without undue delay.
The court can postpone the bail application.
Evidence to be considered on bail application [s 117A]
In bail proceedings the court may receive—
- evidence on oath, including hearsay evidence;
- affidavits and written reports which may be tendered by the prosecutor, the accused or his or her legal representative;
- written statements made by the prosecutor, the accused or his or her legal representative;
- statements not on oath made by the accused.
In A-G v Mpanga-Nhachi 2009 (2) ZLR 150 (S) the court pointed out that bail proceedings are different from proceedings in a criminal trial. In bail proceedings the court has a wide range of information, including hearsay evidence, as the basis on which to determine whether or not to grant bail to the accused. In terms of s 117A (4) CPEA, the court may consider evidence on oath, including hearsay evidence; affidavits and written reports which may be tendered by the prosecution or the defence; written statements made by the prosecutor, the accused or his legal representative; and statements not on oath made by the accused. The court may require the prosecutor or the accused to adduce evidence. If the court does not do so, the prosecutor is not obliged to produce any report he is relying on. In any event, under s 117A (10), assuming the report is part of the police docket, unless the Prosecutor-General directed otherwise, the defence is not entitled to have access to the report in the bail proceedings although they would be entitled to it for the purposes of his trial.
In Ncube 2001 (2) ZLR 556 (S) the court said that in considering a bail application, a judicial officer must bear in mind the presumption of innocence, and should grant bail where possible. The accused must be allowed to call witnesses to show that the allegations against him are unfounded. Failure by the court to allow him to call such evidence is a serious misdirection, one which would allow the Supreme Court to interfere with a decision of a judge of the High Court to refuse bail.
In the South African case of Adams en Andere 1993 (1) SACR 611 (C), the court said that the evidence in a bail application is admissible against X in his subsequent trial.
The court may require the prosecutor to place on record the reasons for not opposing bail. The court may also require the prosecutor or the accused to adduce evidence.
In bail proceedings the accused is compelled to inform the court whether—
- the accused has previously been convicted of any offence; and
- there are any charges pending against him or her and whether he or she has been released on bail in respect of those charges.
If the legal representative submits this information on behalf of X, X will be required by the court to declare whether he or she confirms this information.
For the purposes of bail proceedings, an accused may not 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, record or document which is held by any police officer charged with the investigation in question, unless the Prosecutor-General otherwise directs.
In Ncube & Anor 2002 (2) ZLR 524 (H) the judge pointed out that bail applications are sui generis: there is no prescribed format or procedure. It is the duty of the presiding officer, with due allowance for the circumstances of each case, to determine the way in which each party must submit its evidence. In a majority of cases ex parte statements are made from the Bar by both the defence and by the public prosecutor who intimates what the police objections are. There are no formalities; no evidence is led, no affidavits are placed before the court and the record is so meagre that there may be little or nothing to place before the superior courts if the matter is taken on appeal.
In bail applications both sides may make submissions from the Bar or lead evidence. Evidence should be led in support of any fact which is in dispute.
In the South African case of Maki & Ors (1) 1994 (2) SACR 630 (E) the court said that the procedure for hearing and adjudicating on bail applications should be flexible and adaptable. The laying down of rigid rules as to what evidence is admissible in a given situation should be avoided, except that both oral evidence and affidavits should be admissible and, in appropriate cases, other material such as ex parte statements.
Court to be apprised of charge when bail application is made
In Mukoko 2009 (1) ZLR 93 (HH) the court pointed out that where there is no legal justification, the court is enjoined not to place the accused on remand. Where the court finds that there is legal justification to place the accused on remand, the next issue is whether he should be remanded in custody or not. It is during this process that the issue of bail arises. It is important that this process takes place, as it is during this process that the court, having been informed of the allegations against the accused, will be better positioned to consider the various factors in adjudicating on the question of bail pending trial. To grant bail without first ascertaining whether there is legal justification for the accused to be placed on remand would be incompetent. The phrase "after a person has appeared in court on a charge" must be construed to mean "after the initial process of a criminal trial", which is the initial appearance in court before a judicial officer and the presentation to the legal officer of legal justification for the person's arrest and detention.
Presumption of innocence
In our law persons are presumed innocent until their guilt has been proven. When a person applies for bail he or she has not yet been tried and the allegations against him or her have not yet been proven. Pre-trial incarceration cuts across the presumption of innocence as a person is being incarcerated before trial despite the fact that he or she may be found not guilty when he or she is tried. Wherever the interests of justice will not be prejudiced by pre-trial release, the courts should lean in favour of liberty and grant release on bail with or without additional conditions. This is particularly so if the offence with which the accused is being tried is not likely to attract a prison sentence. Pre-trial incarceration of petty offenders means that they end up being punished to a disproportionate extent. If they are found guilty and fined, they will already have spent time in custody; if they receive short prison sentences, they may already have spent longer in prison waiting for their trial than the period of the prison sentence imposed. For petty offences, therefore, there must be very cogent reasons for refusal of bail.
The right to liberty is one of the most fundamental human rights and should not be lightly interfered with. The court should lean in favour of protecting liberty unless the State establishes the necessity to deprive X of his or her liberty pending the trial.
In Biti 2002 (1) ZLR 115 (H) it was stated that the court should always grant bail where possible and should lean in favour of the liberty of the applicant provided that the interests of justice will not be prejudiced. The approach is one of striking a balance between the interest of society (i.e. the applicant should stand trial and there should be no interference with the administration of justice) and the liberty of an accused (who, pending the outcome of his or her trial, is presumed to be innocent). In Ncube 2001 (2) ZLR 556 (S) the court said that in considering a bail application, a judicial officer must bear in mind the presumption of innocence, and should grant bail where possible.
Power of magistrate to admit to bail
A magistrate may grant bail if the accused is in custody within the magistrate’s area of jurisdiction at any time after he or she has appeared in court on a charge and before sentence is imposed.
But the magistrate may not admit to bail for offences in the Third Schedule, provided with the personal consent of the Prosecutor-General a magistrate may grant bail or alter bail conditions in respect of any offence.
However, with the personal consent of the, may grant bail to a person or alter a person’s conditions of bail in respect of any offence.
A magistrate within whose area of jurisdiction a person is in custody may grant bail if the case of the person is adjourned in terms of section 55(1) of the Magistrates Court Act or in respect of whom an order has been made in terms of section 351(4).
Restrictions on granting bail by magistrates
The power of magistrates to grant bail or alter bail conditions is severely restricted. In terms of s 116(b) CPEA, where X has been charged with any of the offences specified in the Third Schedule, magistrates may only grant bail if the Prosecutor-General personally has consented to X’s admission to bail. Section 117(6) contains further restrictions on the granting of bail by magistrates.
If X is charged with an offence contained in Part I of the Third Schedule, then even if the Prosecutor-General has consented to X’s admission to bail the court must order X to be detained in custody unless X has adduced evidence which satisfies the magistrate that exceptional circumstances exist which in the interests of justice permit his release (s 117(6)(a) CPEA).
If X is charged with an offence contained in Part II of the Third Schedule, then even if the Prosecutor-General has consented to X’s admission to bail the court must order X to be detained in custody unless X has adduced evidence which satisfies the magistrate that the interests of justice permit his release (s 117(6)(b) CPEA).
Third Schedule Offences
Certificate for Third Schedule offence
Where X has applied for bail in respect of an offence in the Third Schedule the Prosecutor-General or the Minister responsible for the administration of the Public Order and Security Act [Chapter 11:17], in respect of offence referred to in paragraph 6 of Part I of the Third Schedule may issue a certificate stating that it is intended to charge the person with the offence. Such a certificate is admissible in any proceedings on its production by any person as prima facie evidence of its contents.
Extradited persons [s 116(5)]
Bail must be refused by a magistrate if the accused has been extradited from another country to Zimbabwe and if the Minister who administers the Extradition Act has given an undertaking to the government of that other country that X will not be admitted to bail while in Zimbabwe. A certificate from the Minister, which states that he has given that undertaking, must be produced. If the Minister has given the undertaking that X will only be admitted to bail on certain conditions, then the court may grant bail on those conditions. The court may impose further conditions which are not inconsistent with the conditions specified by the Minister.
A Ministerial certificate is admissible in any proceedings on its production by any person as prima facie evidence of its contents
Burden of proof in bail proceedings [s 115C(2)]
Previously there was some controversy as about the issue of onus of proof in bail cases.
There are a number of earlier Zimbabwean cases in which the Supreme Court it is laid down that after the State has led sufficient evidence to show that there is a real likelihood that the administration of justice will be prejudiced if the accused is admitted to bail, the onus lies on the person applying for bail to show on a balance of probabilities that his admission to bail would not prejudice the interests of justice: Chiadzwa 1988 (2) ZLR 19 (S); Hussey 1991 (2) ZLR 187 (S).
However, in Kuruneri HH-111-04 the judge commented on the issue of bail in bail cases. It held that there is no statutory authority for placing an onus upon an applicant for bail, and that prior rulings to that effect were based on South African cases. These are based on a statute which is materially different from the Zimbabwean legislation. In arriving at the decision, the learned Judge held that section 13(4) of the [pre-2003] Constitution requires that any person who is arrested or detained should be tried within a reasonable time, failing which he or she should be released from custody. In other words, the discretionary power of a magistrate to deny bail may not be exercised in violation of the accused’s constitutional right to be brought to trial within a reasonable time or be freed from custody. The notion of the accused having an onus to discharge to enable him or her to be admitted to bail is not part of our law as legislated. The constitutional presumption of innocence in bail application operates fully and at the general level. It is because of the presumption of innocence that the courts are expected, and indeed required, to lean in favour of the liberty of the accused. If the State’s fears of that the accused will abscond or interfere with witnesses and the applicant’s assurances to the contrary are equally balanced, then the presumption of innocence would require the court to lean in favour of the liberty of the accused person and grant bail. Part IX CPEA was amended in 2006, however, and the current provisions (particularly s 117(1), quoted above) are more in line with the views expressed in Kuruneri’s case than in those earlier cases.
In Mwonzora & Ors HH-72-11 the court stated that in an application for bail pending trial, the initial onus is on the State to prove the necessity of keeping the applicants in custody. It is not necessary for the applicants to prove that they are to be released on bail. The notion of the accused having an onus to discharge to enable him or her to be admitted to bail is not part of our law as legislated. Having cleared this legal debris, then the place of the constitutional presumption of innocence in bail application becomes clearer. The presumption operates fully and at the general level. It is because of the presumption of innocence that the courts are expected, and indeed required, to lean in favour of the liberty of the accused. In its request for remand (Form 242) the State puts across its reasons for opposing the granting of bail. In his or her application for bail, the applicant addresses the concerns of the State and makes any other averments which tend to favour his admission to bail. The State then responds. Finally, the judge or magistrate assesses all this information with a view to ‘strike a balance between the interests of the prosecutor in obtaining justice for the State, as one party in the accusatorial process, interests of the accused in obtaining justice for himself. If the finding is that, to use the words of Gubbay CJ in Aitken’s case, ‘the case against the applicant is neither obviously strong nor obviously weak’, that the State’s fears of abscondment or interference with witnesses and the applicant’s assurances to the contrary are equally balanced, then the presumption of innocence would require the court to lean in favour of the liberty of the accused person and grant bail.
Section 50(1)(d) of the Constitution provides that a person arrested or detained must be released unconditionally or on reasonable conditions, pending a charge or trial, unless there are compelling reasons justifying their continued detention. This provision would seem to entail that the onus is on the State to establish that there are compelling reasons why bail should not be granted and the accused should remain in custody pending trial.
However, clause 28 the Criminal Procedure and Evidence Amendment Act (Act 2 of 2016) has introduced a new section 115C to the Act which purports to there were several decisions which laid down that in bail cases that the onus was on the prosecution to cast the onus on the accused in respect of Third Schedule offences. The new provisions are summarised below:
Where an accused who is in custody in respect of an offence applies to be admitted to bail to the court that has convicted the accused—
Burden of proof
Offence not in Third Schedule
On prosecution to show, on a balance of probabilities, that there are compelling reasons justifying the accused’s continued detention
Offence in Part 1 of Third Schedule
Even if the Prosecutor-General has consented to bail, the burden of proof is on accused, having been given a reasonable opportunity to do so, adduces evidence which satisfies the judge or magistrate that exceptional circumstances exist which in the interests of justice permit his or her release
Offence in Part 11 of the Third Schedule
On the accused to show on a balance of probabilities that exceptional circumstances exist which in the interests of justice permit his or her release on bail.
Further applications for bail
After a judge or magistrate determines a bail application, a further bail application may only be made to the judge or magistrate who determined the previous application or to any other judge or magistrate if such application is based on facts which were not placed before the judge or magistrate who determined the previous application and which have arisen or been discovered after that determination, but a magistrate may not, without the personal consent of the Prosecutor-General, admit a person to bail or alter a person’s conditions of bail in respect of an offence specified in the Third Schedule.
Grounds for refusal of bail [s 117]
The refusal to grant bail and the detention of an accused in custody shall be in the interests of justice where one or more of the following grounds are established—
- where there is a likelihood that X, if he or she were released on bail, will—
- endanger the safety of the public or any particular person or will commit an First Schedule offence; or
- not stand his or her trial or appear to receive sentence; or
- attempt to influence or intimidate witnesses or to conceal or destroy evidence; or
- undermine or jeopardise the objectives or proper functioning of the criminal justice system, including the bail system;
- where in exceptional circumstances there is the likelihood that the release of X will disturb the public order or undermine public peace or security.
Section 117 provides detailed guidelines to courts on how to go about deciding whether it is or is not in the interests of justice to grant bail.
It provides that it would be in the interests of justice to refuse bail if one or more of the certain grounds are present and sets out the factors that the court should take into account in deciding whether these grounds are present. The table below sets out the specified grounds and the factors that are to be taken into account in respect of each of these grounds.
Likelihood that if X is released he will endanger the safety of the public or a particular person or will commit a First Schedule offence.
In deciding whether this ground has been established, the court must, where applicable, take into account these factors:
Likelihood if X is released he will attempt to intimidate witnesses or conceal or destroy evidence.
In deciding whether this ground has been established the court must take into account these factors:
Likelihood that X will attempt to influence or intimidate witnesses or to conceal or destroy evidence.
In considering whether this ground has been established, the court must take into account—
Likelihood that if X is released he will undermine or jeopardise the objectives or proper functioning of the criminal justice system, including the bail system
In considering whether this ground has been established, the court must take into account—
Where in exceptional circumstances there is a likelihood that X’s release will disturb the public order or undermine public peace or security
In considering whether this ground has been established, the court, where applicable, must take into account—
Weighing the competing interests
In considering these questions the court must decide the matter by weighing the interests of justice against the right of the accused to his or her personal freedom and in particular the prejudice X is likely to suffer if X were to be detained in custody, taking into account, where applicable, the following factors, namely—
- the period for which the accused has already been in custody since his or her arrest;
- the probable period of detention until the disposal or conclusion of the trial if the accused is not released on bail;
- the reason for any delay in the disposal or conclusion of the trial and any fault on the part of X with regard to such delay;
- any impediment in the preparation of X’s defence or any delay in obtaining legal representation which may be brought about by X’s detention;
- X’s state of health;
any other factor which the court thinks should be taken into account.
In Ndhlovu 2001 (2) ZLR 261 (H) the court stated that in bail applications, the court has to strike a balance between the interests of society (which are that the accused should stand trial and that there should be no interference with the administration of justice) and the liberty of the accused (who is presumed to be innocent). Grounds for refusal of bail should be reasonably 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.
In Mwonzora & Ors HH-72-11 it was held that the court should strike a balance between the interests of society and the liberty of the accused. This includes that the accused should stand trial and that there be no interference with witnesses. Bail must therefore be granted provided the interests of justice will not be prejudiced. If the state’s fears that the accused will abscond or interfere with witnesses and the applicants’ assurances to the contrary are equally balanced, the presumption of innocence would require the court to lean in favour of the liberty of the person and granted bail. In striking a balance between the liberty of the subject and the proper administration of justice, the imposition of conditions can be decisive. Where bail can be granted subject to safeguarding conditions, the court should, if possible, lean in favour of doing so. When a judicial officer decides on an application, he or she must at least refer to that legal principle upon which the decision is based in addition to the facts upon which the legal principle is applied. The lack of these basic features in the ruling constitutes a misdirection.
It would seem that by granting an entitlement to bail unless the interests of justice require that bail not be granted, the legislature has placed the onus on the State to establish that there are clear grounds justifying the refusal of bail. In the South African case of Maki & Ors (1) 1994 (2) SACR 630 (E) the court stated 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.
Grounds for refusal of bail
The fundamental principle governing the court’s approach to bail applications is to uphold the interests of justice. The court must take into account the factors set out in s 117 CPEA and try to strike a balance between the protection of the liberty of the individual and the administration of justice. In our law persons are presumed innocent until their guilt has been proved. When a person applies for bail he has not yet been tried and the allegations against him have not yet been proved. Therefore, pre-trial incarceration cuts across the presumption of innocence as a person is being incarcerated before trial despite the fact that he may be found not guilty when he is tried. Whenever the interests of justice will not be prejudiced by pre-trial release the courts should lean in favour of liberty and grant release on bail with or without additional conditions. This is particularly so if the offence with which X is being tried is not likely to attract a prison sentence. Pre-trial incarceration of petty offenders means that they end up being punished to a disproportionate extent. If they are found guilty and fined, they have already spent time in custody; if they receive short prison sentences, they may already have spent longer in prison waiting for their trial than the prison sentence imposed for their crime. For petty offences, therefore, there must be very cogent reasons for the refusal of bail.
Well-founded grounds for State opposition to bail
It was made quite clear in Hussey 1991 (2) ZLR 187 (S) that where the State seeks to rely on one or more of these grounds when opposing bail, it is insufficient for the State merely to make bald assertions that the particular grounds applied. Its assertions must be well-grounded. It must produce cogent reasons why the particular ground in question applies and these reasons must be supported by proper information. In Malumjwa HB-34-03 it was held that in bail applications the court has to strike a balance between the interest of society (that the applicant should stand trial and there should be no interference with the administration of justice) and the liberty of an accused person (who pending the outcome of his trial is presumed to be innocent). The likelihood of a lengthy prison term being imposed (i.e. the seriousness of the offence) is a factor to be taken into account in assessing the risk of absconding. Where is has been shown that the accused has interfered with evidence, the court is justified in denying him bail. The court should, however, not refuse bail on the bare assertion of the State; there must be enough reason for such a conclusion. In other words, grounds for refusal of bail should be reasonably substantiated.
In Madzokere & Ors 2011 (2) ZLR 1 (H) the court pointed out that 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) CPEA 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." 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.
Likelihood of absconding
An accused who has decided not to stand trial may either flee the country if he has the capacity to do so or try to go to a place inside the country where he believes the authorities will be unable to find him. The problems of bringing to justice a person who has fled the country are obviously greater than if he hides himself within Zimbabwe.
If there are good grounds for believing that X will take flight and become a fugitive from justice if he is granted bail then bail must be refused: Hussey 1991 (2) ZLR 187 (S). If, before or after his arrest, X escaped or tried to escape from custody, this would clearly show his predisposition to abscond and not to stand trial: Chiadzwa 1988 (2) ZLR 19 (S). In Jongwe 2002 (2) ZLR 209 (S) it was held that when assessing the risk of an applicant for bail absconding before trial, the court will be guided by the character of the charges and the penalties which in all probability would be imposed if convicted; the strength of the State case; the accused’s ability to flee to a foreign country and the absence of extradition facilities; the past response to being released on bail; and the assurance given that it is intended to stand trial. The most critical factors are the nature of the charges and the severity of the punishment likely to be imposed upon conviction and also the apparent strengths and weaknesses of the State case.
In deciding whether flight is likely and in the absence of such concrete evidence of a predisposition to abscond, account must be taken of a number of factors which common experience have shown influence a person either to stand trial or to take flight.
These factors are the gravity of the charge and the likely sentence for that crime, the capacity of and opportunities for X to flee and whether he has contacts abroad who will offer him sanctuary or whether X has substantial assets abroad. Other factors which are relevant are the property holdings of X and his status in society. It may be that he would lose so much if he absconded that flight is unlikely.
There is need for the court to assess the strength of State case. Where allegations in police papers raise a prima facie case, there is need for accused to rebut allegations and show that he should be granted bail. In Makamba S-30-04 the appellant was refused bail in the High Court on various charges under the exchange control legislation. Among other grounds of appeal, it was argued that the judge a quo should not have relied on the mere allegations made by the investigating officer. The strength of the State case had not been assessed by the judge a quo, though it should have been. However, the allegations made in the affidavit of the investigating officer were fairly detailed and raised at least a prima facie case against the appellant. In such circumstances an applicant would be expected, in attempting to discharge the onus upon him, either to deny the allegations; or to place before the court such information as would tend to establish his innocence; or to show that even if he were to be convicted the likely penalties were not such as to present a temptation for him to abscond; or to show that the interests of justice would not be prejudiced by his release on bail
The case of Chiadzwa 1988 (2) ZLR 19 (S) examines the combination of factors which make international flight likely. Where a person is facing a serious charge which will lead to lengthy incarceration on conviction and the evidence against him is very strong and conviction probable, and that person has the capacity to leave the country and has someone outside the country who will support him, there will be a substantial risk of external flight. In these circumstances the person may be quite prepared to abandon substantial assets in Zimbabwe to avoid the prospect of spending years in prison. With less serious charges, in respect of which the evidence is weak, it would be unlikely that a wealthy person will flee the country leaving behind substantial assets, especially if that person has no external assets and few acquaintances outside the country who could assist him to re-establish himself. See also Aitken & Anor v Attorney-General 1992 (1) ZLR 249 (S) and Aitken (2) 1992 (2) ZLR 463 (S).
In considering whether flight is likely the courts take into account whether a person has a fixed abode and whether he has a job. In these days of high unemployment favourable consideration should be given to employment in the informal sector. With the drastic shortages of accommodation in urban areas, the fact that a person does not have permanent accommodation should not necessarily be held against him. The attachment of regular reporting conditions will usually ensure that a person who only has temporary accommodation can be located when necessary.
If the State opposes bail on the ground that X is of no fixed abode and will therefore probably not attend court when his case is to be tried, but X asserts that he lives at a particular address, then the State should indicate in specific terms the basis for its belief that X does not live at that place: Gwatiringa HH-128-88.
In Mambo 1992 (1) ZLR 245 (H), X had been refused bail on the grounds that he was very likely to abscond. On appeal, it was held that bail should be granted as, on the probabilities, it was unlikely that X would abscond. He was aware for some time that he was under investigation for the alleged fraud in question and had not absconded; he had travelled to South Africa and when he was informed that the Zimbabwean police were looking for him, he had returned to the country and surrendered himself to the police. The fact that X is facing a very serious charge and that the sums involved in the alleged fraud are considerable is not a sufficient basis for refusing bail.
In Biti 2002(2) ZLR 209 (S) the court decided that where evidence is given that there is a strong case for the prosecution, that a heavy sentence is likely, increasing the risk of the accused absconding, and that other perpetrators of the crime are still at large, the onus then falls on the accused to show that the interests of justice will not be prejudiced, namely, that it is likely that he will stand his trial and not otherwise interfere with the administration of justice or commit an offence.
In Jongwe 2002 (2) ZLR 209 (S), Chidyausiku CJ indicated that when assessing the risk of an applicant for bail absconding before trial, the court will be guided by
- the character of the charges and the penalties which in all probability would be imposed if convicted;
- the strength of the State case;
- the accused’s ability to flee to a foreign country and the absence of extradition facilities;
- the past response to being released on bail; and
- the assurance given that it is intended to stand trial.
He pointed out that the most critical factors are the nature of the charges and the severity of the punishment likely to be imposed upon conviction and also the apparent strengths and weaknesses of the State case.
In Ndhlovu 2001 (2) ZLR 261 (H) the court said that in deciding whether there is a risk of X absconding, the court should consider such factors as the seriousness of the offence, the likely sentence and the incentive to abscond, X’s mobility and access to cross-border travel, and the strength of the prosecution case. It may be desirable for X to disclose his defence and not merely make a bald statement that he is not guilty of the offence. Such a defence is of great, and often of decisive, importance in the exercise of the court’s discretion. X’s personal circumstances, such as financial position and business interests, are of little value in assessing the risk of absconding. They may, in some cases, be used to facilitate absconding. The fact that X surrendered to the police should normally be a factor in his favour, though if he surrendered under a false name with the intention of deceiving the police, it would not count in his favour.
Often the attaching of conditions to the granting of bail, such as reporting to a designated police station at particular hours, may be enough to minimise any danger of X absconding.
Likelihood of commission of further offences
The public must be protected against further criminal activities of a person pending trial. This is especially so in respect of dangerous criminals who may commit grave crimes whilst out on bail. However, the majority of persons facing trial are unlikely to commit further crimes if released prior to trial. The impending trial will usually act as a restraint as it will be realised that they will face serious penalties if they engage in further criminal conduct before their trial.
If the State maintains that further criminal conduct is likely, it must point to some facts that suggest there is such a danger and that this cannot be averted by the imposition of stringent bail conditions. It is permissible for the State to produce a list of X’s previous convictions: 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 whilst on bail. In the case of Attorney-General v Phiri 1987 (2) ZLR 33 (H) the evidence of the propensity to commit further crimes whilst at liberty was particularly strong. In addition to a bad criminal record, there was evidence that X had committed further similar crimes to the crimes for which he was yet to be tried. Such previous conduct whilst on bail showed a disregard for the law and a contempt for the administration of justice. Bail was understandably refused.
However, in the case of Demba HH-133-89 the High Court said that if after a person has been granted bail for one offence, he is then suspected of having committed another similar crime some time before the current offence, this does not necessarily mean that he will be more likely to commit yet another offence whilst at liberty such that he should now be refused bail. See also Patel 1970 (3) SA 565 (W).
In Madzokere & Ors S-8-12 the Supreme Court stated that the purpose of the exercise of the discretionary power vested in the court considering a bail application under s 117 CPEA is to secure the interest of the public in the administration of justice by ensuring that a person charged with a criminal offence upon a reasonable suspicion of having committed it will appear on the appointed day to stand trial. It is for that purpose that the section provides, in effect, that upon sufficient evidence being available to justify it, a finding that an accused person is likely not to stand trial when released on bail is a relevant and sufficient ground for ordering continued detention of him or her pending trial. Section 117 is also based on the principle that, regard being had to the presumption of innocence which is a fundamental right guaranteed under the Constitution to an accused person awaiting trial, he must be released on bail on appropriate conditions if the same object of ensuring his appearance at the trial can be achieved.
The question for determination is whether, on the facts available and regard being had to the presumption of innocence to which the accused is entitled, the court would be justified in finding that there is a likelihood that the accused would not stand trial if released on bail, even with stringent measures to ensure close monitoring by the police. Only if such a finding is justified by the available evidence can it be said that the likelihood of the accused not standing trial if released on bail is a relevant and sufficient ground for depriving him of his liberty pending trial. The court said that the following factors are a useful guide in deciding whether an accused person would abscond if released on bail:
- the nature of the charge and the severity of the punishment likely to be imposed on the accused upon conviction
- the apparent strength or weakness of the State case
- the accused’s ability to reach another country and the absence of extradition facilities from that country
- the accused’s previous behaviour when previously released on bail; and
- the credibility of the accused’s own assurance of his intention and motivation to remain and stand trial.
Likelihood of tampering with evidence or interfering with administration of justice
The argument that there is a likelihood of interference with evidence will obviously be strong if the State can show that there have already been attempts to do this. This was the situation in Maharaj 1976 (3) SA 205 (D) where X had already tried to persuade a State witness to disappear; in Chiadzwa 1988 (2) ZLR 19 (S) where there was evidence suggesting X had attempted to bribe a police officer and had composed a plan whilst in prison to discredit witnesses against him; and in Maratera S-93-91 where there was evidence that there had been an interference with the course of justice. See also Bennett 1976 (3) SA 652 (C).
What if there is no such clear evidence of a preparedness to interfere with the evidence? In the South African case of Hlongwa 1979 (4) SA 112 the court stated that it may, in appropriate circumstances, rely on the investigating officer’s assertion that X was likely to tamper with evidence if he or she were to be released even if this assertion is unsupported by any direct evidence. On the other hand, in the case of Hussey 1991 (2) ZLR 187 (S) the Supreme Court seems to have laid down that more is required than simply bald assertions by the State that X was likely to interfere with witnesses who may be called by the State. The assertion must be well grounded and the State is obliged to place cogent reasons before the court, supported by information to justify the assertion.
If X lives or works with the State witnesses there will be a greater likelihood of interference with witnesses.
In Shambira HB-04-10 the applicant was a member of the Zimbabwe National Army. He was facing two charges firstly, that he wrote a threatening letter to a magistrate who was presiding over a case involving his colleagues who faced charges of attempted murder and discharging a fire arm in public. The second charge was that he attempted to kidnap complainant’s daughter when she was at school. The applicant applied for bail pending trial on the basis that he would not abscond nor endanger the safety of the public. The application was opposed on grounds of abscondment, public safety, and interference with State witnesses.
As regards the threat of endangering public safety that it is trite that where possible a suspect should not be deprived of his liberty unless his release will and not “may” interfere with the due process of law and crime control. In the present case applicant has positively shown his desire to interfere with both due process and crime control. The applicant has threatened a Magistrate with death and also attempted to kidnap his daughter. This is a serious threat to public safety. A person who threatens another with death is a potential danger to society in general and to the individual in particular. The applicant’s position is exacerbated by the fact that the threat was directed at the officer who is charged with dispensing justice. This type of conduct runs contrary to the independence of the judiciary, in that a judiciary officer’s oath of office to dispense justice without fear of favour is highly compromised. A judiciary officer’s exercise of a judicial function should never be interfered with, by anybody at all. What the applicant did is unlawful and goes to demonstrate that he is a danger to the proper administration of justice. In view of his determination to frustrate the administration of justice, he is not a person who should be liberated pending trial. Any person who unlawfully interferes with the Police, prison officers, public prosecutors, judiciary officers or any other officer charged with the proper administration of justice should be deprived of his liberty pending trial. Indeed there is reason to apprehend that if he is released he will interfere with the magistrate, the child and all other officers whom he perceives as a stumbling block in the release of his colleagues. Therefore bail was denied.
In Madzokere & Ors 2011 (2) ZLR 1 (H) that 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. If an applicant is likely to interfere with witnesses or evidence, he may be denied bail on this ground, but only if that interference cannot be restrained by imposition of bail conditions deterring him from doing so.
Likelihood that accused will disturb the public order or security
In Madzokere & Ors 2011 (2) ZLR 1 (H) the court stated for this ground to apply there must be clear evidence establishing the applicant's propensity to disturb public order, and undermine peace and security. What would establish a strong propensity is evidence that the applicant has previous convictions for public violence and is facing several similar cases. The words "in exceptional circumstances" clearly indicate that the legislature was conscious of the remote possibility of this ground ever being ordinarily applicable, so whenever this ground is advanced it should be carefully considered to ascertain whether that likelihood is present.
Fear for safety of accused
In Mwonzora & Ors HH-72-11 the court held that fears for the safety of the accused because of the unlawful actions of the mob outside the courtroom, threatening to kill the accused, are not a ground to refuse to grant bail.
In K (A Juvenile) 2010 (2) ZLR 35 (H) a 17 year old juvenile, was indicted for trial before the High Court on two counts of murder. It was alleged, and not in dispute, that he shot both of his parents. He applied for bail pending trial, before he was asked to plead to the charges. The grounds for the application at this stage were that the applicant needed to be examined by a psychiatrist before the trial. The applicant alleged that he was suffering from a mental disability at the time he gunned down his parents. The issue for trial was whether or not he had the necessary mens rea at the time he fired the fatal shots. The State produced a report by a doctor who examined the applicant and found that he is suicidal and a danger to himself and others.
The court held that this ordinarily would not be the best time for a bail application, as whatever bail the accused might be granted at this stage would be affected by his plea of not guilty, a plea which was unavoidable in terms of s 271 CPEA. In terms of s 169 of the Act, any bail granted before the accused tenders his plea will lapse when he pleads to the indictment and a fresh application would have to be made. However, in casu there was a need for the applicant to apply for bail before pleading to the two charges, but the application should have been preceded by an application for postponement.
The fact that the shooting was not in dispute and that the applicant's mental state was in issue called for a careful consideration of whether or not the applicant was a danger to those he would stay with if he were released on bail. There was good reason for fearing that the applicant was not only a danger to himself but also to members of his family and to the public. In terms of s 117(2)(a)(i) of the Act, a reason for refusing bail would include the fact that the applicant was a danger to the safety of the public or a particular person. It was too risky to release the applicant into society when he had not been properly examined, and or treated, for the condition which triggered the events of the fateful day.
However, it was not only undesirable for a juvenile to be kept in a remand prison, but such a course was contrary to the provisions of s 84 (1) Children's Act, which stipulates that a young person shall not before conviction be detained in a prison or police cell or lock-up unless his detention is necessary and no suitable remand home is conveniently available for his detention. There being such a home available, the applicant would be detained there.
State not opposing bail
Even if the prosecution does not oppose the granting of bail, the court still has “the duty to weigh up the personal interests of the accused against the interests of justice” and decide whether it is in the interests of justice to grant bail. [s 117(5) CPEA] The court can require the prosecutor to put on record the reasons for not opposing bail. [s 117A(4) CPEA] And where X is charged with a crime set out in Part I of the Third Schedule CPEA, a magistrate cannot grant bail unless X adduces evidence showing that there are exceptional circumstances justifying his release, even if the Prosecutor-Generalhas personally consented to the grant of bail.
Whether opposition by State to bail is decisive factor
In Ndhlovu 2001 (2) ZLR 261 (H) the court stated that the attitude of the Attorney-General is a relevant but not a decisive factor. His opinion commands respect because of his experience and the responsibility of his office, unless it is evident that he is no better informed than the court. However, his assertion cannot be substituted for the court’s discretion.
The attitude of the police or prosecutor is not a decisive factor in the grant or refusal of bail. It was held to merely be a relevant consideration in Mahata v Chigumira NO & Anor HH-24-04. Accordingly, bail cannot merely be refused on the grounds that the state is opposed to it.
Invalid reasons for refusing bail
The seriousness of the offence is not in itself a reason to refuse bail: Kanoda & Ors HH-200-90-90; Hussey 1991 (2) ZLR 187 (S). The fact that the charge is a serious one and is prevalent, and would attract a lengthy prison term if X is found guilty, is only a factor to be considered together with other factors in deciding whether X should be kept in custody until his trial. Hussey 1991 (2) ZLR 187 (S).
It is not proper to refuse bail merely because a date has been set for trial, except in exceptional cases as, for instance, where the date of trial is a few days away and the release of X on bail would create transport or accommodation problems for him: Chiadzwa 1988 (2) ZLR 19 (S).
Fears for the safety of the accused because of the unlawful actions of a mob outside the court room, threatening to kill the accused, are not normally grounds to refuse to grant bail, particularly once the accused is removed from the area: Bhebhe & Ors 2002 (1) ZLR 137 (H). On the other hand, the court is enjoined by s 117(2)(b) as read with s 117(3)(e)(iii) CPEA to consider X’s safety when deciding whether exceptional circumstances exist for refusing him bail.
Jointly charged accused
Where two or more persons have been jointly charged in one case, for the purposes of considering whether bail should be granted each case must be considered there is still an obligation to consider each individual case separately as well as treating the person as part of a group: Mutambara & Ors v Minister of Home Affairs 1989 (3) ZLR 96 (H).
Magistrate functus officio after granting bail
In Khumalo & Anor v Mukondiwa-Mazhandu NO & Anor HB-68-12 applicants were granted bail by the first respondent. The prosecutor was not opposed to the granting of the bail. For some reason the first respondent wanted the prosecutor to check with the police. This was done and the prosecutor indicated that the police were not opposed to the granting of bail. The first respondent granted the application, but in spite of the applicants’ relatives having paid the bail money, the applicants were not released. It emerged that the first respondent had directed the prison staff at the courts not to release the applicants. She had done this, she said, because the police were alleging that she had been bribed by the applicants’ relatives. It was this approach by the police that caused her to revoke the bail that she had granted earlier on.
The court held that when the first respondent granted bail, the magistrate then became functus officio. There was no legal basis for denying the applicants their liberty. If the police or the applicants’ relatives alleged that she had been bribed, that was not a legal ground to recall the matter and alter the decision that she had already taken. She should have dealt with the allegations of bribery levelled against her without denying the applicants their liberty. Magistrates should not have informal discussions elsewhere on issues that took place in court.
Amount of bail
If bail is to be granted an excessive amount of bail must not be demanded: s 120 CPEA. If bail is set beyond the capacity of X to raise the amount, he will end up in custody and the granting of bail will have been a futile gesture; in effect a person is denied bail if bail is set well beyond his means to pay. In respect of persons with little or no financial means, bail can be set at a low level or a person can be released on his or her own recognizances, with or without further conditions, or he can be released subject to sureties being found, provided that there is a reasonable prospect of his or her finding such sureties. The magistrate must therefore investigate X’s means and whether X has relations or other persons who would be prepared to pay the bail or stand surety for him or her.
Deposit of property or recognizance in respect of property
Instead of or in addition to cash bail the court can order X to deposit property belonging to him or enter into a recognizance in respect of property belonging to him. Thus in Aitken(2) S-168-92 the court ordered that, in addition to cash bail, X enter into a recognizance in a certain amount against the security of a house registered in his name: s 131 and s 118 (1) CPEA.
The accused may also be required to find persons to stand surety for him. The sureties will be required to enter into recognizances to pay a certain amount of money in the event of X defaulting and not standing trial: s 119 (1) CPEA. The court should property explain to sureties that if X defaults on his bail conditions, they will have to pay over the amount agreed to in the recognizance and they will lose this amount.
Conditions of bail
Conditions may be added —
- requiring X to surrender all his travel documents;
- specifying that he report to the police or other authority at a specified place and at specified times;
- forbidding him from going to particular places (in land acquisition cases a person contesting the acquisition of his farm cannot be ordered not to go back to his farm; he can only be evicted after being convicted of failing to vacate a farm that has been lawfully acquired
- prohibiting him from communicating with prosecution witnesses;
- imposing other conditions as to his conduct, such as that he places himself under the care and supervision of a particular organisation. s 118(3) CPEA.
In imposing conditions, a magistrate must carefully consider the surrounding circumstances in order to give a reasonable ruling. In Prior HH-163-02, The appellant was charged with failing to vacate her farm, in respect of which an acquisition order had been made under s 8 of the Land Acquisition Act [Chapter 20:10]. She was granted bail, one of the conditions of which being that she should not return to the farm other than to collect her possessions. She appealed in respect of that condition. It was held that it was not reasonable to order that she should not return to her home. She was contesting the acquisition, and until that issue had been determined, she was entitled to exercise her rights of ownership. The section provided for eviction only after conviction; the bail condition effectively amounted to eviction before conviction. The condition would be altered to require her to reside at her home.
Once conditions are imposed, it is not permissible for the State to seek further conditions to those already imposed in the absence of further violations while on bail. In Tsvangirai & Ors 2003 (1) ZLR 618 (H) the accused were on trial on charges of treason. They had been granted bail, and had not breached any of the conditions. The State applied to have further conditions added. It alleged that the accused had indulged in activities which occurred after the grant of bail and which were unlawful and bordered on treason. No charges were being brought in respect of those alleged activities. It was held that the grant of bail is a consequence of the arrest and remand of an accused person on a specific charge. The nature of the offence charged and other relevant considerations are factors to be taken into account in determining the grant or refusal of bail and, where such bail is granted, the conditions to be attached to the recognizance. Any conditions attached to a recognizance must have some bearing to the offence of which the accused is charged, in particular the need to secure his attendance; to ensure that he does not interfere with the evidence and to ensure that he does not commit further offences whilst awaiting trial. The conditions added to the recognizance cannot refer to some other allegation that the accused person may possibly face in future and in respect of which he has not been charged. What the State wanted was to prevent the accused from conducting themselves unlawfully. It could not do so through conditions added to bail.
In another linked application, the court expressed the view that conditions should be imposed where these can dispense with State fears adequately. In Tsvangirai 2003 (1) ZLR 650 (H) the applicant, along with 2 others, was on trial on charges of treason. They had been granted bail, and had not breached any of the conditions. The State unsuccessfully applied to have further conditions added. That application was dismissed on the grounds that bail conditions cannot refer to some other allegation that the accused person may possibly face in future and in respect of which he has not been charged. The applicant was then arrested on a further charge of treason, based on statements he was alleged to have made, urging a mass stay-away as a means of removing the government from power. The State conceded that it had no reason to fear that the applicant would not stand trial or interfere with the evidence, but expressed apprehension that, if granted bail, the applicant was likely to commit or influence his supporters to commit similar crimes; that the applicant has a propensity to commit such crimes when out of custody. The court held that the fact that the applicant was facing other charges previously preferred against him and for which he had not been convicted was not by itself a reason for denying him bail. However, the State’s fears that he might commit similar crimes were not totally unfounded, but could be catered for by the imposition of appropriate conditions, something the court was empowered to do. Bail was granted on that basis.
Equal treatment of accused
In Lotriet & Anor 2001 (2) ZLR 225 (H) the applicants were granted bail by a magistrate but the Attorney-General’s appeal against the grant of bail was upheld by the High Court, so they remained in custody. In a further application to the High Court it was revealed that an accomplice had been granted bail. The court granted their application on the basis of two fundamental principles: the right of the individual to liberty and the need for justice to be seen to be administered evenly. The judge commented that it was “vital that in the administration of justice there does not appear any form of discrimination, particularly in a matter where the liberty of a person is involved.”
Cancellation and forfeiture of bail
If X breaches any of the conditions of his bail the judicial officer who admitted him to bail or the judicial officer before whom X is brought may declare the bail to be forfeited: s 133(a) CPEA.
Where X has failed to appear in court for trial (his name having been called three times both inside and outside the courtroom), the prosecutor may apply for a warrant of apprehension and for the forfeiture of X’s bail and any recognizances that have been entered into: s 119 CPEA.
The court will usually refrain from ordering forfeiture of bail until X is arrested and brought before the court and asked to explain his default. The correct procedure is merely to issue a warrant for the apprehension of X. The court should only order forfeiture when, after hearing X's explanation, it is satisfied that the default was wilful or deliberate: Sibanda (1) 1980 ZLR 413 (GD). X’s lawyer can appear at this hearing to explain why his client failed to appear in court for trial and to try to persuade the court not to order forfeiture of bail but instead to extend the previous bail and to set a new trial date. However, if the default of X was wilful the court is obliged to order forfeiture of bail: Knight NO v Van Tonder & Ors 1962 R & N 405 (SR).
It is impermissible for the court to order both forfeiture of bail and the imposition of a fine for failure to appear in court. This amounts to punishing X twice for the same offence: Sibanda (1) 1980 ZLR 413 (GD).
Alteration of bail conditions
In Musariri HB-41-95 X had suggested that certain bail conditions which the State accepted, including undertaking to remain at his house except for necessary visits to the court or to doctors. Four weeks later he sought a variation of the conditions saying that he was being subjected to virtual house arrest. Variation was refused.
In Bilal v Attorney-General HH-105-11 the applicant was charged with a serious fraud involving US$1 million. He applied for alteration of his bail conditions on humanitarian grounds in order to visit his wife in South Africa who was seriously ill with cancer and had heart problems which required a transplant. However, the supporting documentation relating to the wife’s condition were not authenticated as required by the rule 3 of the High Court (Authentication of Documents) Rules, 1971 and were inadmissible were just bald or naked assertions which could not be accepted..
The respondent opposed the application on two main planks, viz that the humanitarian reasons proffered have no basis at law as they do not in any way save the interests of justice and that the applicant, if allowed to leave the Court’s jurisdiction, would never be seen again since he was a peregrinus.
The court held that in terms of s 126 (1) CPEA conditions of a recognizance can only be altered or added to if necessary or advisable in the interests of justice. In the present case the alteration of or addition to the bail conditions being sought is premised solely on humanitarian grounds. The question therefore is whether the grounds advanced are in the interests of justice. Humanitarian grounds such as the ones given in the instant case do not fall within the ambit of the phrase “in the interests of justice”. Such moral or humanitarian considerations have no place in our bail jurisprudence for every accused person denied bail has a moral or humanitarian crisis consequent to him.
Regarding the issue of flight risk, the appeal strikes at the heart of the due administration of justice. Releasing the applicants solely on their promise to return for trial is untenable. It means that local law enforcement agents would not be able to apprehend them if they decide to default. The court would have to rely on the magnanimity of the South African Law enforcement agents to arrest them. The South African Police Service’s magnanimity would depend on the complex extradition procedures in their country. Indeed the extradition of the alleged principal was an arduous process. It would delay the due administration of justice unnecessarily. The court cannot simply agree to abdicate its jurisdiction in favour of foreign processes over which it does not have any control or influence. The application for the alteration of bail conditions dismissed.
Bail during trial
Bail generally comes to an end, unless expressly stipulated, once X pleads at the commencement of the trial. The court can, however, extend the bail for the period of the trial or grant fresh bail on new conditions.
Further applications for bail
Even if bail has been refused by a court, a further application for bail can be made at subsequent remand proceedings if this application is based on new or different facts from the previous application: s 116 (1)(c) proviso (ii).
The passage of time since the last application for bail can be a new fact arising after the last application. See Murambiwa S-62-92 and Aitken (2) 1992 (2) ZLR 463 (S). The fact that the police have had sufficient time since the last application to investigate the case but have not been able to strengthen their case will be a factor which must be considered in the further application for bail. See Murambiwa and Aitken (2). In Stouyannides 1992 (2) ZLR 126 (S) the court pointed out that where a considerable period of time has elapsed, the Attorney-General acts at his peril if he fails to put before the court specific facts strengthening the case over the period of time which has elapsed. This was confirmed Barros & Ors 2002 (2) ZLR 17 (H) where the judge held that a postponement of a trial is a change in circumstances entitling a court to reconsider the question of bail. Whether bail should in fact be granted will depend on the circumstances of the case in question, the length of the postponement and the nature of the charges.
If X previously had no money for bail but now has raised some, his lawyer can inform the court of this and request that bail now be granted.
Appeal against decision on bail by magistrate
Where a person applies for bail in the magistrates’ court and the application is refused he or she is only entitled to a single appeal against this decision to the High Court. Section 121(8) CPEA had removed the right of the person concerned who had appealed to a judge of the High Court against the bail decision of a magistrate to take the judge’s decision, subject to leave, on appeal to a judge of the Supreme Court.
Appeals against decisions regarding bail [s 121]
Where a magistrate has admitted or refused to admit a person to bail—
- the Prosecutor-General or the public prosecutor, within forty-eight hours of the decision; or
- the person concerned, at any time;
may appeal to a judge of the High Court against the admission to or refusal to bail or the amount fixed as bail or any conditions imposed in connection with bail.
Where a judge or magistrate has admitted a person to bail, and an appeal is noted by the Prosecutor-General or public prosecutor, 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.
An appeal by the person admitted to bail or refused admission to bail will not suspend the decision appealed against.
A judge who hears an appeal in terms of this section may make such order relating to bail or any condition in connection therewith as he or she considers should have been made by the judge or magistrate whose decision is the subject of the appeal.
This section will apply in regard to a private prosecution as if references to the Prosecutor-General were references to the private party instituting the prosecution.
In Chiyangwa v AG & Ors S-1-04 it was held that there is only one appeal against the grant or refusal of bail by a judge or magistrate, no matter which party appeals. If a magistrate refuses bail and a judge of the High Court grants bail on appeal by the accused, that is the end of the matter. The Prosecutor-General has no right of appeal to the Supreme Court. See also AG v Lotriet & Ors 2001 (2) ZLR 168 (H)
However, an exception arises in respect of currency offences, as in the case of Attorney-General v Fundira S-33-04. In that case, the respondent, who was charged with currency offences, had been granted bail in the High Court. The Attorney-General immediately announced his intention of appealing and applied for leave to appeal. The judge refused leave, and within two days the Attorney-General applied to the Supreme Court for leave to appeal. The respondent argued that as the Attorney-General had not noted an appeal within 7 days (now 48 hours), there was no appeal before the court and the respondent should be released. It was held no appeal lies to the Supreme Court from an order of a High Court judge sitting as an appeal judge in a bail application. However, there is an exception in respect of persons charged with currency offences: applications for bail in respect of those offences can commence in the magistrate’s court, then proceed to the High Court and thereafter to the Supreme Court. No party is relieved of the requirement to obtain leave to appeal in a bail application, where the appeal is against the decision of a judge of the High Court. The Attorney-General’s application, within 7 days, for leave to appeal constituted compliance with s 121 CPEA. It cannot have been the intention of the legislature to require the Attorney-General to file the notice of appeal at a time when it was legally not possible to file such a notice of appeal, by reason of awaiting the outcome of his application for leave to appeal.
In A-G v Mabusa 2011 (2) ZLR 522 (H) the court pointed out that the discretion of the AG in terms of s 121 CPEA to veto the granting of bail by a magistrate must be exercised judiciously and must not be abused as this will bring the administration of justice into disrepute. The prosecutor must not invoke this provision without applying his or her mind properly to the matter. The discretion must only be used where there is merit in the appeal and where it shown that there was a misdirection by the magistrate or the discretion by the trial court to grant bail was exercised injudiciously.
Where bail has been granted by a magistrate, and the state appeals, the High Court cannot substitute its own discretion for that of the magistrate in the absence of misdirection or irregularity: A-G v Ruturi HH-26-03. When there is an appeal against a decision to admit a person to bail, that decision should not be set aside unless there are compelling reasons to do so. The period for the Prosecutor-General to note an appeal against the granting of bail by a magistrate, is 7 days which includes Saturdays, Sundays and public holidays. See Dhlamini & Anor v Ministers of Home Affairs & Ors 2010 (2) ZLR 25 (H).
Bail pending appeal and review
Reid-Rowland 6-17 – 6-20
The main factors to weigh in the balance are the interrelated factors of the prospects on appeal and whether the granting of bail will jeopardise the interests of the administration of justice.
In Kilpin 1978 RLR 282 (A), the appeal court pointed out that the principles governing the granting of bail after conviction were different to those governing the granting of bail before conviction. Where the person has not yet been convicted he or she is still presumed innocent and the courts will lean in favour of granting him or her liberty before he or she is tried. On the other hand, where he or she has already been convicted, the presumption of innocence falls away. There are certain cases where bail pending appeal should not be granted such as where the person has been convicted of an offence which almost invariably attracts a lengthy prison term and there are no reasonable prospects of an appeal against the lengthy prison term succeeding to a material degree. The trial magistrate had thus been wrong to automatically extend bail granted before trial to the post-trial stage where the person had pleaded guilty to such an offence.
Where the evidence of guilt is overwhelming there are no reasonable prospects of a successful appeal against conviction, but if there is room for a difference of opinion regarding conviction there would be a reasonable prospect on appeal.
However in Williams 1980 ZLR 466 (A), the appeal court said that even after conviction the court should lean in favour of liberty if this would not endanger the interests of the administration of justice. The prospects of success on appeal must be balanced against the interests of the administration of justice. The less chance of success on appeal the greater the chance there was of the convicted person absconding. But it was putting it too highly to say that bail should only be granted where there was a reasonable prospect of the appeal succeeding. On the other hand, in serious cases even where there was a reasonable prospect of success on appeal, bail should sometimes be refused, notwithstanding that there is little danger of the convicted person absconding. See also Benatar 1985 (2) ZLR 205 (H).
In deciding whether the administration of justice will be prejudiced if bail is granted the court should take into account the seriousness of the offence, the seriousness of the penalty imposed, whether the appeal is against conviction or only against sentence and the prospects of success on appeal. With a serious offence which normally attracts a substantial prison sentence there will be a pronounced risk that the convicted person will flee from justice if released, especially if he or she has no reasonable chance of successfully appealing against conviction. There will be a very great risk of flight if X is only appealing against sentence and the most he or she can hope for is that the prison sentence will be subject to some minor adjustment. Even where there is a reasonable prospect of success on appeal against such a conviction, the convicted person may not be inclined to take the chance of the appeal succeeding, but may take flight instead if he or she is released pending appeal. With less serious offences not attracting drastic penalties the position will be radically different.
In assessing the prospects of success on appeal, the magistrate is obviously placed in a somewhat difficult position as, to a certain extent, he or she is being asked to come to a decision on the reliability of his or her conviction and/or sentence. He or she must try to assess this as objectively as possible.
In Gardner HH-60-08 the court held there are two primary considerations in an application for bail pending appeal, namely; the risk of absconding and the prospects of success on appeal. Other factors to bear in mind in such applications are the right of the individual to liberty and the potential length of the delay before the appeal can be heard. There are two conflicting interests that the procedure of bail seeks to reconcile. These are the right of the applicant to his liberty and the interests of the due administration of justice. Hence the basic purpose from society’s point of view of the procedure known as “bail” is to strike a balance between two conflicting interests- liberty of the accused, and the requirement of the State that he stand trial to be judged and that the administration of justice be safeguarded from interference or frustration. This proposition is amply supported by authority.
The right of the applicant to his liberty is easy to define and understand. In applications for bail pending trial, the right of the individual to his liberty is reinforced by the presumption of innocence and the State bears the onus of proving that the interests of justice will be prejudiced by granting the applicant bail. In applications for bail pending appeal because the presumption of innocence will have ceased to operate in favour of the liberty of the applicant upon conviction, the onus shifts and rests with the applicant to show that the interests of justice will not be prejudiced by his or her admission to bail.
The concept of the interests of justice and the due integrity of the due administration of justice that is sought to be protected in bail procedures easy to repeat and pay lip service to (following the authorities), but difficult to define and apply. Not a single aspect or feature can be pointed at and discerned in each case.
The securing of the attendance of the applicant at the hearing of the appeal is one aspect of the due administration of justice. Thus, where there is a real risk that the applicant will abscond and not stand trial, the interests of justice would have been prejudiced by granting bail to such an accused. This is easy to envision. Again where evidence will be tempered with, and investigation frustrated by an accused because he is out of custody, the interests of justice would have been prejudiced by the granting of bail to the accused. Not so obvious are instances where the integrity of the administration of justice will fall into disrepute if bail is granted to an accused person. This brings into play the elusive concept of justice as understood by society. Where the granting of bail will result in uproar from society for one reason or another, the court should be slow to grant bail in an effort to safeguard the interests of justice and the integrity of the justice delivery system as perceived by the public which the court seeks to serve. Thus for instance, a serial rapist or murderer who is unlikely to abscond may not be granted bail immediately upon his arrest for to do so may affront the public’s notion of justice and the purpose of the justice delivery system. On the other hand, to deny bail to an accused who is later exonerated on appeal will equally bring the administration of justice into disrepute.
In Kwenda & Anor HH-37-10 the court said that the distinction between considerations that should weigh with the court in an application for bail pending appeal and an application for bail pending trial is well settled. There is an essential difference between bail pending trial and bail pending appeal. In either case bail is a matter for the discretion of the court, but bail pending trial will not normally be refused unless there are positive reasons for refusal, such as the danger of the accused absconding or of interference with witnesses. But bail pending appeal involves a new and important factor; the applicant has been found guilty and sentenced to imprisonment. Bail is not a right. An applicant for bail asks the court to exercise its discretion in his favour and it is for him to satisfy the court that there are grounds for so doing. In the case of bail pending appeal the position is not, even as a matter of practice, that bail will be granted in the absence of positive grounds for refusal, the proper approach is that in the absence of positive grounds for granting bail it will be refused. This is not to say that an applicant for bail pending appeal has any heavy onus to discharge; if justice is not endangered, the court favours liberty, more particularly where there is a reasonable prospect of success. But it is nevertheless important not to lose sight of the fact that the exercise of the court's discretion involves balancing the considerations of the liberty of the individual and the proper administration of justice, and that where the applicant has been tried and sentenced it is for him to tip the balance in his favour. It is not the consideration of any particular factor that should weigh with the court in considering such an application. Rather, the question to be answered at the end of the inquiry is whether the applicants have shown that the court’s discretion should be exercised in their favour, taking all the factors into account.
The exercise of discretion by the presiding officer is protected in the absence of a misdirection that vitiates the proceedings. Not every misdirection will entitle an appeal court to interfere with the decision of the trial court. Only an improper or unreasonable exercise of discretion will be considered as a misdirection that calls for the appeal court to exercise fresh discretion in the matter. It is not adequate that the present court might have imposed a different sentence in the matter. The court’s attention must be drawn to a misdirection by the sentencing court. It was not.
Indeed the opinion of the Attorney- General commands the respect of this court as it is invariably well put and founded. It is invariably based on established legal principles that underpin the criminal law of this country and is based on detailed research that the court does not have time to carry out on its own. It is invariably balanced and where necessary, draws the attention of the court to authorities that may be adverse to the final position adopted by the respondent. It is invariably reliable as a statement of the position at law of the issue in dispute.
In Chimbwa HH-62-08 the applicant was convicted of theft. He was sentenced to 36 months imprisonment with 12 months suspended on conditions of good behaviour and restitution. The applicant appealed against both conviction and sentence. He then applied for bail pending appeal. The application was opposed.
The applicant argued that the respondent did not prove its case against him beyond reasonable doubt and thus, he had prospects of success on appeal against the conviction.
In dismissing the application the court held that the applicant did not discharge the onus on him to show that he is entitled to bail pending appeal. The evidence on record is cogent enough to ground a conviction, thereby diminishing the prospects of the applicant succeeding on appeal. It is trite that one of the factors that a court has to take into account in considering an application for bail pending appeal is the prospect of the appeal being upheld. The other factors are the likelihood of the applicant absconding, the delays that are likely to ensue before the appeal is heard and the right of the applicant to his liberty pending determination of the appeal. In arguing the prospects of success in an application for bail pending appeal, it is not enough for an applicant to raise individual features of the State case that may be unsatisfactory. He must prove that the totality of the evidence led against him at trial does not justify the subsequent conviction bearing in mind always that the burden resting on the State in criminal matters is proof beyond a reasonable doubt and not proof beyond any shadow of doubt. Although the state relied on the testimony of a single witness, it is trite that the testimony of one witness in our law is sufficient to ground a conviction.
The procedure of bail is meant to strike a balance between the liberty of an individual and the due administration of justice. However, after conviction, the liberty of the individual loses some of its weight and the due administration of justice becomes the stronger factor. It is further trite that once an applicant has been convicted and sentenced, he is not as of right entitled to his liberty as the presumption of innocence ceases to operate in his favour upon conviction. The onus then falls on him to show the court that he is entitled to his liberty pending the determination of the appeal. It is not enough for a convicted applicant to show that he will not abscond if granted bail pending appeal. He must prove that the interests of justice and the integrity of the justice delivery system will not be prejudiced if he is released on bail pending appeal.
In Kaseke HH-120-11 the applicant was convicted of fraud by a regional court and was sentenced to an effective term of one year in prison. He applied for bail pending appeal. The court refused his application holding that there were no prospects of a successful appeal and there was a risk of the applicant absconding as he had already felt the rigours of imprisonment. Even if in the present case the hearing of the appeal was likely to be delayed, the applicant will not suffer any prejudice at all by continuing to serve sentence. In fact this will be to his advantage. The interests of justice demand that persons properly convicted and sentenced must quickly serve their punishment. The sentence seems on the lenient side in view of the prejudice caused.
In Maseko HB-65-08 the applicant sought bail pending appeal. She was convicted of possession of dagga She pleaded guilty, was convicted and sentenced to 20 months imprisonment. She was 41 years of age and a widow looking after two minor children. The main reasons for her application are that she is a widow looking after two minor children and HIV positive and therefore ill.
The court took judicial notice of the fact that HIV is now medically better managed due to the advancement in medical development in society and properly managed her life can actually be prolonged. Therefore the fact that she is HIV positive is not per se a good reason for her to be granted bail. While this factor is no doubt important, that alone without more is not enough. This factor should be combined with other factors which are mitigatory. The court observed that while the court sympathized with her plight as a widow looking after her children the she cannot transgress the law and expect sympathy. Her recent and relevant previous conviction could not be ignored in determining this application. This is a factor that militates against her. Her application for bail pending appeal was dismissed.
In Pfumbidzayi HH-726-15 the court said that where bail after conviction is sought, the onus is on the applicant to show why justice requires that he should be granted bail. The proper approach is not that bail will be granted in the absence of positive grounds for refusal but that in the absence of positive grounds for granting bail it will be refused. First and foremost, the applicant must show that there is a reasonable prospect of success on appeal. Even where there is a reasonable prospect of success, bail may be refused in serious cases, notwithstanding that there is little danger of the applicant absconding. The court must balance the liberty of the individual and the proper administration of justice and where the applicant has already been tried and sentenced it is for him to tip the balance in his favour. It is also necessary to balance the likelihood of the applicant absconding as against the prospects of success, these two factors being interconnected because the less likelihood are the prospects of success the more inducement there is to abscond. Where the prospect of success on appeal is weak, the length of the sentence imposed is a factor that weighs against the granting of bail. Conversely, where the likely delay before the appeal can be heard is considerable, the right to liberty favours the granting of bail.
It is not a requirement that “exceptional circumstances” should exist to justify release on bail. What are required are positive grounds to show that bail must be granted.
Informing accused of charge
In terms of section 50(1)(a) of the Constitution a person who has been arrested must be informed at the time of the arrest of the reason for the arrest.
Section 70(1)(c) of the Constitution provides that a person accused of a criminal offence has the right to be informed informed promptly of the charge, in sufficient detail to enable the person to answer it. In terms of section 70(2) this information must be given in a language the person understands and if the person cannot read or write, the document containing the information must be explained in such a way that the person understands it.
Adequate time and facilities to prepare a defence
Section 70(1)(b) of the Constitution provides that a person accused of a crime has the right to be given adequate time and facilities to prepare a defence;
Unreasonable delay in bringing for trial
Section 69(1) of the Constitution provides that everyone accused of a criminal offence is entitled to a fair hearing within a reasonable time before an independent and impartial court. (Section 18(2) in the previous Constitution.)
Section 50(6) of the Constitution provides that a 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.
(These provisions were found in s 13(4) of the previous constitution.)
There is now the following provision in the CPEA.
“167A Unreasonable delay in bringing accused to trial
(1) A court before which criminal proceedings are pending shall investigate any delay in the completion of the proceedings which appears to the court to be unreasonable and which could cause substantial prejudice to the prosecution, to the accused or his or her legal representative, to a witness or other person concerned in the proceedings, or to the public interest.
(2) In considering whether any delay is unreasonable for the purposes of subsection (1), the court shall consider all the circumstances of the case and in particular the following —
(a) the extent of the delay;
(b) the reasons advanced for the delay;
(c) whether any person can be blamed for the delay;
(d) whether the accused has raised such objections to the delay as he or she might reasonably have been expected to have raised;
(e) the seriousness, extent or complexity of the charge or charges;
(f) any actual or potential prejudice which the delay may have caused to the State, to the accused or his or her legal representative or to any other person concerned in the proceedings;
(g) the effect of the delay on the administration of justice;
(h) the adverse effect on the interests of the public or the victims in the event of the prosecution being stopped or discontinued.
(3) If after an investigation in terms of subsection (1) the court finds that—
(a) the completion of the proceedings is being unduly delayed; or
(b) there has been an unreasonable delay in bringing the accused to trial or in completing the trial;
the court may issue such order as it considers appropriate in order to eliminate the delay and any
prejudice arising from it or to prevent further delay or prejudice, including an order—
(i) refusing further postponement of the proceedings;
(ii) granting a postponement subject to such conditions as the court may determine;
(iii) that the prosecution of the accused for the offence be permanently stayed;
(iv) that the matter be referred to the appropriate authority for an administrative investigation and possible disciplinary action against any person responsible for the delay.
(4) The Prosecutor-General may appeal against an order referred to in subsection (3) (iii) as if it were an acquittal of the accused.”
Section 160(2) CPEA provides that if X is not brought to trial after the expiry of six months from the date of his committal for trial, his case shall be “dismissed”. This provision is meant to protect accused persons from being unreasonably kept under committal for trial for longer than six months when the trial has failed to take place during that period, as well as to ensure that the Prosecutor-General ensures that trials of accused persons committed for trial are expeditiously conducted.” In Mukuze & Anor v A-G (2) HH-17-05 the court decided that the six-month period mentioned in s 160 could be interrupted (a) if X is through circumstances beyond the control of the Attorney General not available to stand trial or (b) if the Attorney-General has in terms of s 108 ordered a further examination to be taken.
It is the responsibility of the magistrate hearing applications for initial and further remands to ensure that the Constitutional provisions are observed. In terms of s 69(1) of the Constitution every person accused of an offence has the right to a fair and public trial within a reasonable time before an independent and impartial court.
It is the duty of the remand court to decline to grant requests from the State for further remands when unreasonably long periods of time have elapsed since X was first charged. It must ensure that the State proceeds to trial within a reasonable time: Bull v Minister of Home Affairs 1986 (1) ZLR 202 (S). The responsibility of the court to prevent unreasonable delays is a continuing one. At each further remand the progress of the investigations should be checked. If at the last remand the State has asked for further time so that the police can locate a missing witness or carry out some further investigations and the State is now applying for a further remand on the basis of the same reason advanced previously, the court should obviously check that the police have been vigorously attempting to deal with these matters.
Even where X is out of custody pending trial, the State is nonetheless obliged to ensure that the case is brought for trial within a reasonable time. Where X is in custody it is obviously even more important that the case be brought for trial within a reasonable time. The responsibility of the court to prevent unreasonable delays is a continuing one. At each further remand the progress of the investigations should be checked. If at the last remand the State has asked for further time so that the police can locate a missing witness or carry out some further investigations and the State is now applying for a further remand on the basis of the same reason advanced previously, the court should obviously check that the police have been vigorously attempting to deal with these matters.
Not only at the first remand but at each subsequent remand the remanding magistrate must note in the record why X is being remanded.
The court has the primary responsibility for the protection of the right of the unrepresented accused to a speedy trial because an unrepresented accused who is unfamiliar with the criminal process will be likely to be unaware of his rights to be tried within a reasonable period. The court before whom the unrepresented accused is brought must take the initiative to ensure that the constitutional right of X to a speedy trial is not violated. It should not wait for X to raise a complaint of a violation of his constitutional right and to ask the court to deny any further remands. The court should probe the reasons for any apparently undue delays and, where no satisfactory explanations are forthcoming, it should take appropriate action. At very least, it would be expected that the court would inform X of his rights. But the informing of such an accused of his rights should not be seen as been a sufficient safeguarding of X’s rights. Even after being given such information, he may still be ignorant about what remedies he has and how he should go about raising this issue. The undefended accused may still lack the ability to assert those rights. He may be inarticulate, nervous and overawed when he appears in court. If he is in custody, he may be worried about the consequences of raising complaints about undue delays in bringing the case to trial. The court has the power to require explanations for the delays from the prosecutor which X is not. See Tao HH-182-96; Msindo HH-63-97; Chakwinya 1997 (1) ZLR 109 (H).
The remand court therefore should not go on granting requests for further remands when an unreasonably long period of time has elapsed since X was first charged. It should seek to ensure that the State proceeds to trial within a reasonable period of time. Bull v Minister of Home Affairs 1986 (1) ZLR 202 (S).
In Dube & Anor 1989 (3) ZLR 245 (S) the court said that for justice to be seen to be done, the machinery of justice, as it grinds through police stations, the Attorney-General’s Department and the courts of justice, must move expeditiously. In this case, where the accused spent over 4 years out of prison awaiting trial and the hearing of their appeals, it was held not to be in the interests of justice to send them to prison.
In Ruzario 1990 (1) ZLR 359 (S) X a police officer had been convicted of culpable homicide and sentenced to four months imprisonment with labour for killing three persons while driving negligently and under the influence of alcohol. There had been a delay of 4 years in bringing the case for trial. The appeal court declined to interfere with the prison sentence. Once it was apparent that the State was dragging its feet he ought to have taken appropriate steps to have asserted his right to have the matter dealt with within a reasonable period of time. He had not done so. In any event it was evident from the magistrate’s judgment that he took into account the four year delay in his assessment of punishment and were it not for that feature, would have ordered the appellant to serve a far longer period of imprisonment. The appeal was dismissed.
In Chakwinya 1997 (1) ZLR 109 (H) the court held that every person, deserving or otherwise, was entitled to the protection of s 18 of the Constitution, which includes the right to a fair trial within a reasonable time. The delay in this case had been extreme and the reason for it was inexcusable. The prejudice to the accused was such that had he been convicted and sentenced when he should have been, he would more than likely have been released by now. To impose the sentence that would normally be expected would be unconscionably prejudicial. It further held that it would be most inappropriate to hold against an unrepresented accused a failure to take assiduous steps to enforce his freedom. The accused was an unemployed communal land dweller who had never been advised of his rights. He was at the mercy of the system, and the system failed him. Elementary administrative checks would have revealed the accused’s plight.
In Kundishora 1990 (2) ZLR 245 (S) X was sentenced a prison term for fraud He appealed. The trial took place 3½ years after the discovery of the offence and the appeal was heard 10 months later. Dismissing the appeal against conviction and sentence, the court held that the delay in this matter should not be regarded as a mitigating factor in sentence because X did nothing to assert his right to be tried within a reasonable period and part of the delay was due to the appellant putting up a thoroughly dishonest defence, which had no prospects of success.
In Sibanda HH-78-94, there was a delay of almost 7 years before bringing X to trial: his lawyer asked the magistrate for a permanent stay of prosecution; this was refused; he asked for the decision to be reviewed by a Judge of the High Court before the trial proceeded on the grounds:
- that the magistrate had no jurisdiction to decide the issue; or
- that he should have found that X’s constitutional rights had been violated.
It was held that the High Court will only review criminal proceedings before they are completed in exceptional circumstances, which must be set out. The matter was therefore not properly before it. A magistrates court can decide on an application for a stay of prosecution itself unless either party asks it to refer the matter to the Supreme Court or if it considers the request for referral frivolous or vexatious. As it had not been asked to refer this case, its decision was competent. The lawyer could have asked the magistrates court to grant a stay of prosecution or alternatively to refer the matter to the Supreme Court. It was still open to him at the resumed hearing in the magistrates court to request that the matter be referred; as the case involved such a long delay, it could hardly be said to be frivolous or vexatious - the court would be obliged to refer it.
In Matapo & Ors 2010 (2) ZLR 120 (H) the applicants, having been arrested in May 2007, were committed for trial in June 2008. The matter was not set down for trial in spite of requests by the defence for various documents. In August 2008 an application relating to the constitutionality of the charges was heard; it was dismissed in November 2008 and the Supreme Court, to which the issue was then referred, rejected the constitutional application in December 2009. In March 2010 the applicants were notified of a trial date in June 2010.
They brought an application for the dismissal of the case against them, arguing that, in terms of s 160(2) CPEA, they were entitled to have the case dismissed as they had not been brought to trial within 6 months of the date of committal. It was argued that the only time they had not been available for trial was while the constitutional issue was pending. The Attorney-General argued that the calculation of the period within which the accused should have been brought to trial should take into account the times the High Court was on vacation. It was also contended that the six months that entitle a dismissal of the case must run uninterrupted.
The court held that the prerogative of setting down a criminal matter for trial is that of the Attorney-General. The only time an accused person may be granted an earlier date is upon application before the court. Section 160(2) does not provide for the reckoning of the six months period, so the meaning given in the Interpretation Act must be relied on, that is, a “calendar month”. “Calendar month” has two meanings, the second of which is the space of time from any date in any month to the corresponding date in the next. That was the appropriate meaning in the context of s 160(2).
The only way the period could be interrupted would be if the accused were unavailable for trial. When an accused person is committed for trial he automatically becomes available for trial. The only time he is not available for trial would be for example, if he is too ill or, as here, when the trial process is interrupted by some other process like an application for referral of a constitutional issue to the Supreme Court. When the applicants were committed for trial in June 2008, the six month period within which they should have been brought to trial immediately commenced to run.
Although between that date and the date the constitutional application was first heard the matter could not be tried because the defence had not been furnished with certain documents, that period should be counted as part of the six months within which the applicants should have been tried. Further, the fact that the High Court was on vacation on two occasions did not constitute a circumstance beyond the control of the Attorney-General. This was so because it could not be said the applicants were not available to stand trial.
See also 1996 Vol. 8 No. 1 Legal Forum 35 and Kumusana S-110-89; Makoni S-9-90; Dube & Anor 1989 (3) ZLR 245 (S); Ruzario 1990 (1) ZLR 359 (S); Kundishora 1990 (2) ZLR 30 (S); Mlambo S-221-91.
Accused in custody
If X is in custody he can apply for the release from custody on the ground that an unreasonably long period has elapsed in bringing the case for trial. Section 50(6) of the Constitution specifically lays down that if a person who is being held in custody is not brought for trial within a reasonable period of time, he must be released from custody conditionally or unconditionally but may still be brought to trial later. (Section 13(3) in previous Constitution.) The onus is on the defence to establish that the accused person is entitled to be released because of unreasonable delay: In re Hativagone & Anor S-67-04
X may also ask that, in addition to the release of his client, the State should either proceed to trial within a short space of time or that the charges against his client be withdrawn
In Fikilini v Attorney-General 1990 (1) ZLR 105 (S) it was laid down that in determining whether a person's detention pending trial had become unlawful because of failure to bring him to trial within a reasonable time the court should take account of:
- whether in all the circumstances the length of his detention has been unreasonably long. The nature of the charge and the investigation process required to investigate that charge should be examined. Is the charge a complex one which demands lengthy and painstaking investigation or is it simple and straightforward and could have been disposed of speedily if the police had been efficient? Does the case require the gathering of evidence in other countries? Are there some vital witnesses which the State is still trying to locate?
- the reasons which the State has advanced for the delay. The State should obviously be required to advance reasons for the delays which have occurred in bringing the matter to trial. A proper reason, such as difficulties in locating a vital witness will justify an appropriate delay. But if it turns out that the State is improperly delaying bringing the case to trial in order, for instance, to hamper the defence, this will weigh heavily against the State.
- whether the accused asserted his right to have the case brought to trial within a reasonable time. If he has asserted his right this is evidence that he is being deprived of this right; but if he has not done so this may be indicative that his right is not being breached. [But the undefended accused may fail to assert this right because he does not know that he has this right. Tau 1997 (1) ZLR 93 (H)]
- the prejudice which may be occasioned to X by the delay. Will the preparation of the defence be impaired by the delay? Will it cause oppressive pre-trial incarceration? Will it lead to disproportionate anxiety and mental suffering?
Accused out of custody
If X is out of custody, the defence lawyer can ask that a trial date within the near future be set, failing which the charge should be withdrawn.
As mentioned above s 160(2) CPEA provides that if X is not brought to trial after the expiry of six months from the date of his committal for trial in the High Court, his case shall be “dismissed”. In Mukuze & Anor v A-G (2) HH-17-05 the court decided that the six-month period mentioned in s 160 could be interrupted if X is through circumstances beyond the control of the Attorney General not available to stand trial.
In Mukandi & Ors CC-9-14 the court held that in determining such an application the following factors are to be taken into account: (a) the length of the delay; (b) the reasons for the delay; (c) the assertion by the accused of his or her right to a speedy trial; and (d) the prejudice to the accused caused by the delay. Here, the length of the delay was presumptively prejudicial. The onus was on the applicant to establish that the delay was unreasonable. Lesser delays than that in casu had been held to be unreasonable. The events that intervened between the time when the applicants were first charged and the eventual setting down of the matter for trial would serve to afford an acceptable explanation for the inordinate delay. The test for determining whether there has been an unreasonable delay or not requires an objective analysis of all the factors surrounding the entire process, including any challenges and problems that the prosecuting authority might have been faced with during the relevant period. The attitude and actions of the accused persons are also a consideration in the assessment.
The court had to strike a balance between the interests of the accused person and those of society. As much as an accused person has the right to assert that his constitutional rights should be given effect to, it is in the interest of a functioning society that suspected perpetrators of a crime be brought to trial.
The yardstick for ordering a permanent stay of prosecution is not simply a question or issue of fairness to the particular accused, although it is an important consideration. The court also has to consider whether there is an abuse of the court processes by the prosecuting authority for some ulterior motive. It is also of importance to consider whether the continuation of the prosecution is inconsistent with the recognized processes of the administration of criminal justice and so constitutes an abuse of court process. Finally, the court, when considering whether a delay is alleged to have prejudiced an accused’s right to a fair trial, must have regard to the interest that society has in the resolution of the culpability of an accused person, especially when a permanent stay of prosecution is sought.
The applicants had the onus of showing that a trial after such a lengthy period would prejudice them in their defence. They had not done so. The charges they faced were very serious and the amount involved was considerable. The allegations related to fraud involving government funds and taxpayers would have an interest in the outcome of criminal charges concerning fraud allegedly committed in respect of state funds. When weighed against the prejudice that the applicants alleged they would suffer from a delayed prosecution, society would be justified in expecting that the criminal trial be brought to its logical conclusion.
In re Hativagone & Anor S-67-04 the appellants were arrested on criminal charges in 1998 and placed on remand. They denied the charges. In 1999 the charges were withdrawn before plea. Four years later, the accused were summoned to appear to answer the charges. The Attorney-General had deferred the prosecution of the applicants until the trial of the accomplice who was to be the principal witness against them was complete. This person had been prosecuted, but the proceedings were set aside and had to be restarted. The applicants brought an application for a permanent stay of proceedings, arguing that their right under s 18(2) of the Constitution to a fair trial within a reasonable time had been violated. The court held that in order for the application to succeed, it was necessary to consider:
- the length of delay and whether it was presumptively prejudicial;
- the reasons for the delay;
- whether the applicants had asserted their right to a speedy trial; and
- the prejudice to the applicants.
In considering the length of the delay, the fact that the charge had been withdrawn before plea did not assist the State, as the withdrawal was not unconditional. The overall delay was presumptively prejudicial. However, the reasons given for the delay were reasonable in the circumstances and to a large extent the Attorney-General was not to blame for the delay. The applicants had failed to discharge the onus on them to show that they had asserted their right to a speedy trial. Although the applicants were prejudiced by the fact that potential defence witnesses were not available, having either died or emigrated, nonetheless, because the Attorney-General’s explanation was reasonable and because the applicants had failed to assert their rights, the application failed.
In Watson S-17-06 the applicant, while driving his vehicle, had negligently caused the death of a pedestrian. He was initially placed on remand on a charge of culpable homicide, but later placed off remand. Eleven years later, he was summoned to appear on the same charge. It was held there was an inordinate delay by the State in bringing the applicant to trial. The explanation for the delay was neither adequate nor reasonable. The delay was, by any standards, unreasonably long and could not be supported by any court of law. The applicant’s rights under s 18(2) of the Constitution to a fair hearing within a reasonable time had been infringed. Anyone arrested or detained on a criminal charge should be promptly brought before a competent court of law, which will then exercise its judicial power over him, and such trial should be held within a reasonable time. This is to ensure that the accused does not suffer unduly prolonged uncertainty and that evidence is not lost in the process. The inordinate delay caused irretrievable prejudice to the applicant and a permanent stay of proceedings was granted.
Similarly in In re Masendeke 1992 (2) ZLR 5 (S) there had been seven years’ delay in a case involving a policeman who was on two simple charges of taking bribes. The magistrate referred the case to the Supreme Court under s 24(2) of the Constitution. There was no justification for such a protracted delay and it was not suggested that the accused was to blame for the delay. The Supreme Court ordered a permanent stay of proceedings.
In Tau 1997 (1) ZLR 93 (H) it was suggested that if X has been on remand for a period approaching a year, the court should question the State very closely indeed if it applies for a further remand.
See also Ruzario 1990 (1) ZLR 359 (S) and Kundishora 1990 (2) ZLR 30 (S).
Where X alleges that there has been an undue delay in bringing his case for trial the onus is on him to prove that there has been such an undue delay. Fikilini v Attorney-General 1990 (1) ZLR 105 (S) and that he has asserted his right to a speedy trial. In re Hativagone & Anor S-67-04
Where the defence alleges that there has been an undue delay in bringing his case for trial, the onus is on it to prove that there has been such an undue delay: Fikilini v Attorney-General 1990 (1) ZLR 105 (S) and that he has asserted his right to a speedy trial. In re Hativagone & Anor S-67-04
In re Hativagone & Anor S-67-04 The appellants were arrested on criminal charges in 1998 and placed on remand. They denied the charges. In 1999 the charges were withdrawn before plea. Four years later, the accused were summoned to appear to answer the charges. The Attorney-General had deferred the prosecution of the applicants until the trial of the accomplice who was to be the principal witness against them was complete. This person had been prosecuted, but the proceedings were set aside and had to be restarted. The applicants brought an application for a permanent stay of proceedings, arguing that their right under s 18(2) of the Constitution to a fair trial within a reasonable time had been violated. The court held that in order for the application to succeed, it was necessary to consider
- the length of delay and whether it was presumptively prejudicial;
- the reasons for the delay;
- whether the applicants had asserted their right to a speedy trial; and
- the prejudice to the applicants.
In considering the length of the delay, the fact that the charge had been withdrawn before plea did not assist the State, as the withdrawal was not unconditional. The overall delay was presumptively prejudicial. However, the reasons given for the delay were reasonable in the circumstances and to a large extent the Attorney-General was not to blame for the delay. The applicants had failed to discharge the onus on them to show that they had asserted their right to a speedy trial. Although the applicants were prejudiced by the fact that potential defence witnesses were not available, having either died or emigrated, nonetheless, because the Attorney-General’s explanation was reasonable and because the applicants had failed to assert their rights, the application must fail.
In Watson S-17-06 the applicant, while driving his vehicle, had negligently caused the death of a pedestrian. He was initially placed on remand on a charge of culpable homicide, but later placed off remand. Eleven years later, he was summoned to appear on the same charge. Held: there was an inordinate delay by the State in bringing the applicant to trial. The explanation for the delay was neither adequate nor reasonable. The delay was, by any standards, unreasonably long and could not be supported by any court of law. The applicant’s rights under s 18(2) of the Constitution to a fair hearing within a reasonable time had been infringed. Anyone arrested or detained on a criminal charge should be promptly brought before a competent court of law, which will then exercise its judicial power over him, and such trial should be held within a reasonable time. This is to ensure that the accused does not suffer unduly prolonged uncertainty and that evidence is not lost in the process. The inordinate delay caused irretrievable prejudice to the applicant and a permanent stay of proceedings would be granted.
See also Ruzario 1990 (1) ZLR 359 (S) and Kundishora 1990 (2) ZLR 30 (S).
Section 160(2) CPEA now provides that that if X is not brought to trial after the expiry of six months from the date of his committal for trial, his case must “dismissed”. It was decided in Mukuze & Anor v A-G (2) HH-17-05 that the “dismissal” of the case does not amount to an acquittal, nor does it relate to prescription. It relates to the committal and the effects or consequences or implications thereof. The subsection is meant to protect accused persons from being unreasonably kept under committal for trial for longer than six months when the trial has failed to take place during that period, as well as to ensure that the Attorney-General ensures that trials of accused persons committed for trial are expeditiously conducted.
In the case of Mukuze & Anor v A-G HH-2-05 the court decided that the six-month period mentioned in s 160 could be interrupted (a) if X is through circumstances beyond the control of the Attorney General not available to stand trial or (b) if the Attorney-General has in terms of s 108 ordered a further examination to be taken.
Confirmation of Statements made by Accused to Police
Reid-Rowland 20-9 – 20-12
Purpose of confirmation proceedings
In terms of s 113 CPEA, an accused person may be brought before a magistrate for the purpose of having a statement made by him confirmed. It is not mandatory that there be confirmation of the statement. Statements include confessions. Also encompassed are statements made to the police while X is pointing out things or making indications and statements made on the way to the location where indications are to be made. This is the case despite the fact that the indications themselves are admissible in terms of s 258(2) CPEA: Ndlovu 1988 (2) ZLR 465 (S); Jana S-172-88.
The confirmation procedure was introduced to cut down on the number of trials within trials consequent upon challenges in court by accused to the admissibility of their confessions. The purpose of the confirmation proceedings is to give X the chance to object to the manner in which a statement was extracted from him.
The intention is that an accused person should be brought before a magistrate as soon as possible so that if he alleges ill-treatment, the magistrate can make a note of any visible injuries and order a medical examination where appropriate.
Once a statement has been properly confirmed, it becomes far more difficult to challenge the admissibility of that statement. This is because the onus is then placed on the defence to prove, on a balance of probabilities, that despite its confirmation the statement was not made by X or that it was not made freely and voluntarily and without undue influence: s 256(2) CPEA.
On the other hand, if the police have not had the statement confirmed or the magistrate refuses to confirm it because X has alleged that it was not made freely and voluntarily, the onus will then rest on the State to prove beyond reasonable doubt that the statement was made freely and voluntarily and without undue influence.
Role of magistrate
The role of the magistrate at such a hearing is essentially an investigatory one: Attorney-General v Slatter & Ors 1984 (1) ZLR 306 (S). There must be a thorough enquiry into all salient matters: Munukwa & Ors 1982 (1) ZLR 30. This includes looking into whether X’s wish to have access to his legal representative is being improperly frustrated: Attorney-General v Slatter & Ors 1984 (1) ZLR 306 (S). The magistrate asked to confirm the statement must take the utmost care to ensure, through the official court interpreter, that the English translation of statements made in the vernacular in fact represents what X actually said, and the magistrate should record that he has satisfied himself about this fact: Ndhlovu 1981 ZLR 618 (S).
If he accepts that the statement was made by X and that it was made freely and voluntarily and without undue influence, the magistrate then confirms it and if X challenges that statement at his trial the onus is upon him to prove its inadmissibility.
At the confirmation, proceedings that the magistrate must investigate carefully whether X did make the statement and made it on a free and voluntary basis and without undue influence.
Statements not made freely and voluntarily
A confession or a statement made by X is admissible in terms of s 256 (1) CPEA if it is “freely and voluntarily made by X without his having been unduly influenced thereto”.
The statement will not have been made freely and voluntarily and without undue influence if X made the statement because he:
- was tortured, beaten up or physically maltreated in some other way, such as by being deprived of sleep or food and drink for long periods in order to force him to confess;
- was threatened with death or with torture or physical brutality unless he made the statement;
- was told that dire consequences would occur to members of his family unless he made the statement;
- was offered some benefit or advantage if he confessed to the crime, such as that he would be released from custody as soon as he confessed or that if he confessed he would receive only a light sentence such as a fine;
- had been kept in solitary confinement for a long period and no one had been allowed to visit him and he confessed simply because he could no longer bear this isolation;
- he had been denied access to his lawyer after requesting access to him and had been pressured into making a statement in the absence of his lawyer;
- had been subjected to such intensive, hostile and prolonged questioning that his freedom of volition had been overborne as a result of this psychological pressure.
See Ananias 1963 RN 938 (SR); Hlupe 1964 RLR 333 (GD); Murambiwa 1952 SR 271 (SR); Michael & Anor 1962 R&N 374; Dube 1965 RLR 177 (RA); Hackwell 1965 RLR 1 (RA); Edward 1966 (2) SA 359 (R); Mfungelwa 1967 RLR 308; Schaube-Kuffler 1969 (1) RLR 78 (A); Attorney-General v Slatter & Ors 1984 (1) ZLR 306 (S); Mthombeni S-80-90; Nkomo & Anor 1989 (2) ZLR 117 (S); Jana S-172-88; Ndlovu 1988 (2) ZLR 465 (S).
The reason why such evidence is not admissible is that the contents of a statement made in these circumstances will be highly unreliable.
In Woods & Ors 1993 (2) ZLR 258 (S) the court ruled that the wilful denial of proper access to a legal practitioner may render inadmissible any statements made before a person has consulted with his lawyer. If accused are denied access to their lawyers confirmation proceedings are vitiated.
Procedure for confirmation
The procedure at confirmation proceedings is as follows:
- The prosecutor produces the statement by handing it to the magistrate and informing the magistrate of when, where and to whom it was made.
- The statement is then read over to X and he is informed of when, where and to whom he made the statement. The magistrate will then ask X whether he admits making the statement and making it freely and voluntarily and without being subject to undue influence.
- The magistrate must explain to X that if he admits that he freely and voluntarily made the statement, or refuses to answer the question whether he freely made it, the statement will be confirmed and then can be admitted in evidence at his trial on mere production.
- If X then admits that he freely made the statement or refuses to say whether he so made the statement, the magistrate will proceed to confirm it.
- If X denies he made it or alleges it was not freely made, the magistrate will then ask him to give sufficient facts to back up his denial or his allegation of duress or undue influence and, where it is reasonably possible for him to do so, to identify those who applied the undue pressure on him. The magistrate must also tell X that if he fails to mention any facts salient to his allegations concerning the making of the statement, adverse inferences may be drawn from this failure when the admissibility of his statement is being dealt with at his trial.
- If X alleges that he has been subjected to physical ill-treatment to extract a confession, the magistrate must note and record any signs of injuries which X says were the result of physical mistreatment by the police. The magistrate also has power to order an immediate medical examination of X. This power should usually be invoked in these circumstances in order that any evidence of ill-treatment can be detected by a medical expert.
- The magistrate also has the power to order such other investigations as he considers tobe necessary or desirable in the circumstances.
- If X person says anything in his replies to questions which imply that there has been some inducement to make the statement which is the subject of the confirmation proceedings, he must attempt to clarify the position and must not confirm the statement until he has done so: Slatter & Ors 1983 ZLR 144 (H).
- The magistrate should also be on the lookout for suspicious factors which may point in the direction of undue pressure having been applied, such as that an appreciable amount of time has elapsed between the recording and signing of a confession and the bringing of X to have his statement confirmed. If X has alleged he was tortured to extract a confession and confirmation has been sought a long time after the statement was made, this may suggest that this time lapse was to allow signs of injury to disappear.
- If X indicates that parts of his statement were not freely and voluntarily made, the magistrate should decline to confirm the whole statement. It is not proper to confirm some parts and to decline to confirm the parts which X has said were not freely and voluntarily made: Munukwa & Ors 1982 (1) ZLR 30 (S).
- During these proceedings the magistrate must ensure that the police investigating officer and his colleagues remain outside the courtroom and that they are far away enough from the courtroom so they cannot hear what is being said inside the courtroom.
- The proceedings must be held in camera and the investigating officer must not be present in court.
- The procedure does not entail getting the investigating officer to take the oath and getting him to tell the court that he wants the statement confirmed and testifying that accused gave statement freely and voluntarily.
- The statement is merely handed over to the magistrate in court and proceedings are held in camera and the recording detail is not called to give evidence.
- If the statement was made in the vernacular and then translated into English the official court interpreter could be asked to check the accuracy of the translation.
- After the confirmation proceedings X — if he is not granted bail — should be remanded to a prison rather than returned to the custody of the police: Munukwa & Ors 1982 (1) ZLR 30 (S).
If these procedures are not strictly adhered to the confirmation proceedings will be invalid. In Slatter & Ors 1983 (2) ZLR 144 (H) it was laid down that denying X access to his lawyer violates the constitutional rights of X and constitutes undue influence upon him. If X is denied access to his lawyer before or during the confirmation proceedings, the confirmation proceedings will be rendered invalid and the onus would revert to the State to prove that the statements were made freely and voluntarily. This would even apply where relatives of a person in police custody had instructed the lawyer without X being aware of this and the lawyer is prevented from seeing the person concerned subsequently.
In many cases the defence lawyer will only be brought in at a stage when his client has already made an incriminatory statement to the police and the statement has already been confirmed before a magistrate. It may still, however, be possible to challenge the admissibility of the incriminatory statement at the trial. If the defence can establish that the confirmation proceedings were improperly conducted, the proceedings will be ruled to be invalid and the statement will be treated as if it had not been confirmed. Where the defence challenges the validity of the confirmation proceedings, as opposed to challenging the admissibility of the confirmed statement, the State bears the onus of proving beyond a reasonable doubt that the proceedings were properly conducted.
Even if the confirmation proceedings were properly conducted, the admissibility of the statement can still be challenged either on the basis that the original statement was not made freely and voluntarily without undue influence or on the basis that the statement was not made at all by X and the statement is not true. The onus lies on the defence to prove, on a balance of probability, the inadmissibility of a confirmed statement. In determining the admissibility of a statement the court may draw adverse inferences from X's failure to mention facts at the confirmation proceedings which in the circumstances he could reasonably have been expected to have mentioned: s 115 CPEA. Any failure of X to tell the magistrate about the undue pressure applied to him to force him to make the statement would therefore have to be explained. The reason for X's failure may have been that he was threatened with further violence by the police when he was returned to their custody if he did not tell the magistrate that he had made the statement freely and voluntarily.
Statements by juveniles
The magistrate should check to see whether the juveniles had access to their parents or guardians before they made the statements. See Kondile & Anor 1995 (1) SACR 394 (SEC).
Partial admission by accused
If X indicates that parts of his statement were not freely and voluntarily made the magistrate should decline to confirm the statement. It is not proper to confirm some parts and decline to confirm the parts which X has said were not freely and voluntarily made: Munukwa & Ors 1982 (1) ZLR 30 (S).
A statement must only be confirmed if the magistrate is satisfied that it was made by X and was made freely and voluntarily. If X denies that he made it or refuses to say whether he made it or asserts that the statement or portions thereof was not made freely and voluntarily it must not be confirmed. In this latter event, X must be asked why he is saying these things and the magistrate may order that there be further investigations into these allegations.
Section 31 of the Constitution provides:
The State must take all practical measures, within the limits of the resources available to it, to provide legal representation in civil and criminal cases for people who need it and are unable to afford legal practitioners of their choice.
Section 70(1)(e) of the Constitution provides that an accused person has the right “to be represented by a legal practitioner assigned by the State and at State expense, if substantial injustice would otherwise result.”
Section 10 of the Legal Aid Act [Chapter 7:16] provides for the provision of legal aid in certain criminal cases. Where a magistrate believes that it is in the interests of justice that an accused person be provided with legal aid and that person may have insufficient financial means to engage his own lawyer, he can recommend to the Director of the Legal Aid Directorate that the person should be provided with legal aid. He will decide whether to provide legal aid to such person after assessing that person’s financial means.
If X makes application for free legal assistance to be provided to him the magistrate will have to decide whether it is desirable in the interests of justice that X be legally represented at his trial. In deciding this matter, the criteria set out in the case of Dube & Anor 1988 (2) ZLR 385 (S) must be satisfied. These criteria are listed below in the section dealing with the trial stage under the heading of “Legal representation”.
Mental unfitness of accused in custody
Where an accused is mentally unfit to stand trial he must be dealt with under the Mental Health Act [Chapter 15:06]. The important sections are ss 26 and 27.
In terms of s. 27(1) of the Mental Health Act if it appears that a person being held in custody pending trial is mentally disordered or defective, the Attorney-General or the person in charge of the place of detention (which may be a police station or a prison) must report this without delay to a magistrate of the province in which the place of detention is situated.
The procedures to be followed in this sort of case are set out in subsections (2), (3), (4) and (5) of s 27.
In the Chief Magistrate’s Circular No. 9 of 1984 it is suggested that in this sort of case the magistrate should request the prosecutor, as soon as possible, to obtain copies from the police docket of the witness statements as to X’s conduct at the time of the crime, and where necessary, any further information about his mental condition from relatives and associates. The case should be remanded. The circular says that on receipt of the information if it appears that X may be mentally disordered, arrangements should be made through the police or prisons for the requisite medical examination to be undertaken as required by the Mental Health Act.
Section 27 actually requires that, within twenty-four hours of receipt of a report, the magistrate must direct that the medical examination take place.
Two medical practitioners (or if only one is available the second examination can be done by a psychiatric nurse practitioner) must state in writing their opinion as to the mental condition of the prisoner. (See the Mental Health Regulations RGN 792 of 1977.) Based on this opinion the magistrate must then decide what to do with the person concerned. If such person is considered to be unfit to stand trial because he is mentally disordered or defective he will be committed to a mental institution until he has recovered. After recovery he can then be put on trial: s 30 of the Mental Health Act.
There are special provisions relating to petty cases. A petty case is one in which the judicial officer considers that the charge will not merit imprisonment without the option of a fine or a fine of over level 3.
If after consideration of medical certificate and any other inquiry that he thinks fit to make, a magistrate or other judicial officer is satisfied that X is mentally disordered and would not be able to understand the nature of any criminal proceedings or properly to conduct his defence, he shall order that:
- X submit himself to examination or treatment at a specified institution; or
- X’s spouse, guardian or close relative to apply for a civil detention order;
and may give such directions for X’s release from custody or continued detention or transfer to any institution or other place as he considers necessary to ensure that X receives appropriate treatment.
Often persons who are mentally unfit to stand trial may also have been mentally disordered or defective when they committed the crime. It is therefore useful and saves time if the doctors consider whether X is likely to have been mentally disordered or defective at the time that the offence was committed. This may save having to have a further medical investigation after X has recovered. If the doctors say that this person was mentally disordered or defective at the time of the offence it would seem that there is little point in putting him on trial after his recovery. If he were to be tried, a special verdict would be returned under the Mental Health Act. He would then have to be sent to a mental institution despite the fact that he has already been in a mental institution and he has recovered from his mental condition.
As regards the procedure for dealing with accused who display signs of being mentally disordered after the trial commences, see later under “Trials Mental unfitness of accused to stand trial”.
See Appendix for samples of various Mental Health Act forms.