MUKORERA and OTHERS v STATE (51 of 2025) [2025] ZWMTHC 51 (18 September 2025)

2 HCMTJ51/25 HCMTCR1499/25 JELOUS MUKORERA MAQHAWE SIBANDA SPENCER GWINYAI versus THE STATE HIGH COURT OF ZIMBABWE SIZIBA J MUTARE, 17 & 18 September 2025 APPEAL AGAINST REFUSAL TO GRANT BAIL PENDING TRIAL K. Chimiti, for the appellants T. L. Katsiru, for the respondent SIZIBA J: The appellants are aggrieved by the decision of the learned Provincial Magistrate sitting at Mutare Magistrates Court wherein they were denied bail pending trial. The history of the case is that the appellants were first denied bail pending trial by the learned Regional Magistrate in Mutare and they appealed to this court. It was on a charge of attempted murder. Upon realization that the injuries sustained by the complainant did not warrant such a charge, this court directed a fresh bail application to be made before the court a quo on a charge of assault. Such fresh application was therefore made on the 24th of July 2025 and the application was unsuccessful as the learned magistrate in the court a quo took the view that the appellants could interfere with investigations. An appeal was then lodged with this court based on the following grounds of appeal: The court a quo erred in denying the appellants bail pending trial thereby violating their right to unconditional release in terms of section 50 (1) (d) of the Constitution of Zimbabwe.The court a quo erred in denying the appellants bail when the offence of assault attracts a fine and the likely imprisonment considering the injuries suffered by the complainant is a sentence of less than twenty - four months imprisonment.The court a quo erred in denying the appellants bail without evaluating alternative measures to address concerns of risk of abscondments, interference with witnesses and or investigations such as reporting conditions and an order not to interfere with witnesses or investigations.The court a quo erred in denying the 1st appellant bail on the basis that he has previous convictions and a pending matter without considering alternative measures to address concerns such as risk of abscondment and the risk of interference. The appellants are facing a charge of assault in terms of section 89 (1) of the Criminal Law (Codification and Reform) Act (Chapter 9:23). It is alleged that on the 17th of June 2025, at or near Beer Engine Bar, Second Street, Mutare, the three accused persons with their other accomplices said to be at large committed an act of assault upon the complainant by striking him with an empty beer bottle on the back of the head, knuckle duster, booted feet and open hands all over the body intending to cause bodily harm to him. The alleged facts are that the complainant is a male aged 37 years. He is a driver employed by Trade – Kings Investments in Mutare. On the said date at around 1330 hours, the complainant parked his 15 tone rigid truck near Beer Engine Bar intending to offload some goods into G. Five Shop. Another motor vehicle bumped into complainant’s truck and the traffic police officers attended the accident scene. The police officers asked the complainant to drive his motor vehicle to the police station and that is when the appellants allegedly pounced on him. They allegedly attacked him indiscriminately and then scattered away in different directions and some got into a Honda Fit motor vehicle which was parked nearby and drove off, leaving the complainant unconscious. During the proceedings in the court a quo, it became common cause that the second and third appellants have no previous convictions while the first appellant has previous convictions related to assault as well as pending cases. The first appellant was granted bail pending trial by this court on 8 May 2025 on four records. During the proceedings a quo, the investigating officer was not forthright and consistent in his testimony concerning the issue of whether the appellants deserved to be granted bail or not. Under cross examination, he first said that he had no fears that the appellants could run away if released on bail. He said that his fears were that the appellants could interfere with witnesses if released on bail. Later on, he went on to say that he had fears that they could abscond because they were facing many offences especially the first appellant. He then went on to say that he had no problem if the appellants were to be ordered not to interfere with witnesses and to stay at their given addresses. State counsel who appeared in the court a quo had also submitted that there were fears that the appellants could commit similar offences and also that they could abscond and not stand trial. These arguments were opposed by the appellants’ counsel. THE LAW AND ITS APPLICATION The law to be applied in matters of this nature is a well - trodden path in this jurisdiction. The granting or refusal of bail pending trial is a matter of judicial discretion which discretion is exercisable within the parameters of principles that are now trite. It is also trite that in an appeal against refusal of bail, an appellate court or judge will not sit as a court of first instance but the interference with the decision of a lower court will only be made if that lower court committed an irregularity or a misdirection or exercised its discretion so unreasonably or improperly as to vitiate its decision. See Madamombe v The State SC 117/21. In the present context, the appellants’ contention that their denial of bail was a violation of their right to unconditional release in terms of section 50 (1) (d) of the Constitution of Zimbabwe is unclear to me. A denial of bail pending trial by a court can in the very least constitute a misdirection rather than a violation of the right of an accused person. I do not therefore find any legal basis to interfere with the court a quo’s decision on the basis of the appellant’s first ground of appeal. In terms of the second, third and fourth grounds of appeal, the contention by the appellants is basically in saying that an offence of assault is not so serious and as such the learned magistrate ought to have considered bail conditions to address the concerns of interference with investigations rather than denying the appellants bail pending trial. The appellants are riding on the concessions made by the investigating officer that bail conditions could cater for the fears pointed out by the State. In as much as it is accepted that the State representatives together with the accused’s representatives have a say about whether there are compelling reasons warranting the denial of bail or not, the overall duty and discretion is reposed upon the judicial officer who must consider the relevant material placed before him or her from a neutral perspective to consider whether the interests of justice would be served by admitting the accused persons to bail pending trial. In the context of this case, the court a quo’s decision that the appellants may interfere with investigations was made in the light of the allegations that are levelled against them. It is difficult to find fault with the court a quo’s exercise of discretion when one looks at it in the context of the allegations being levelled against the appellants. One wonders what kind of bail conditions can refrain individuals who are alleged to have brazenly attacked the complainant in the manner that is alleged in the very presence of police officers who had come to the crime scene to attend to an accident. In as much as the appellants are still presumed innocent, the picture that has been portrayed about their behavior warranted the decision that was taken by the court a quo in denying them bail. The first appellant is in a worse off situation with his past record of previous convictions and pending cases of violence. His accomplices are alleged to have participated in attacking the complainant severely in a public place and hence one wonders what the appellants are crying about when the court a quo then says that they are likely to interfere with investigations. What is being portrayed here is a scenario where members of the public are just being attacked by some rogue elements for no apparent reason whilst going about their business in town. It is not then far - fetched for a court of law to have taken the view that such alleged rascals may interfere with witnesses or police investigations. Granting such individuals bail especially when they have previous convictions or pending cases or where such conduct is becoming rife in the community will be a failure of justice. The bail system will be put into disrepute and the public will lament over it as a setback to civilized society and they will regret that it is part of our legal system as entrenched in the Bill of Rights. I therefore see no merit in this appeal in the context of the record placed before me. In the result, the appeal against refusal to grant the appellants bail pending appeal is dismissed for lack of merit. Machaya & Associates, appellant’s legal practitioners National Prosecuting Authority, respondents’ legal practitioners 2 HCMTJ51/25 HCMTCR1499/25 2 HCMTJ51/25 HCMTCR1499/25 JELOUS MUKORERA MAQHAWE SIBANDA SPENCER GWINYAI versus THE STATE HIGH COURT OF ZIMBABWE SIZIBA J MUTARE, 17 & 18 September 2025 APPEAL AGAINST REFUSAL TO GRANT BAIL PENDING TRIAL K. Chimiti, for the appellants T. L. Katsiru, for the respondent SIZIBA J: The appellants are aggrieved by the decision of the learned Provincial Magistrate sitting at Mutare Magistrates Court wherein they were denied bail pending trial. The history of the case is that the appellants were first denied bail pending trial by the learned Regional Magistrate in Mutare and they appealed to this court. It was on a charge of attempted murder. Upon realization that the injuries sustained by the complainant did not warrant such a charge, this court directed a fresh bail application to be made before the court a quo on a charge of assault. Such fresh application was therefore made on the 24th of July 2025 and the application was unsuccessful as the learned magistrate in the court a quo took the view that the appellants could interfere with investigations. An appeal was then lodged with this court based on the following grounds of appeal: The court a quo erred in denying the appellants bail pending trial thereby violating their right to unconditional release in terms of section 50 (1) (d) of the Constitution of Zimbabwe. The court a quo erred in denying the appellants bail when the offence of assault attracts a fine and the likely imprisonment considering the injuries suffered by the complainant is a sentence of less than twenty - four months imprisonment. The court a quo erred in denying the appellants bail without evaluating alternative measures to address concerns of risk of abscondments, interference with witnesses and or investigations such as reporting conditions and an order not to interfere with witnesses or investigations. The court a quo erred in denying the 1st appellant bail on the basis that he has previous convictions and a pending matter without considering alternative measures to address concerns such as risk of abscondment and the risk of interference. The appellants are facing a charge of assault in terms of section 89 (1) of the Criminal Law (Codification and Reform) Act (Chapter 9:23). It is alleged that on the 17th of June 2025, at or near Beer Engine Bar, Second Street, Mutare, the three accused persons with their other accomplices said to be at large committed an act of assault upon the complainant by striking him with an empty beer bottle on the back of the head, knuckle duster, booted feet and open hands all over the body intending to cause bodily harm to him. The alleged facts are that the complainant is a male aged 37 years. He is a driver employed by Trade – Kings Investments in Mutare. On the said date at around 1330 hours, the complainant parked his 15 tone rigid truck near Beer Engine Bar intending to offload some goods into G. Five Shop. Another motor vehicle bumped into complainant’s truck and the traffic police officers attended the accident scene. The police officers asked the complainant to drive his motor vehicle to the police station and that is when the appellants allegedly pounced on him. They allegedly attacked him indiscriminately and then scattered away in different directions and some got into a Honda Fit motor vehicle which was parked nearby and drove off, leaving the complainant unconscious. During the proceedings in the court a quo, it became common cause that the second and third appellants have no previous convictions while the first appellant has previous convictions related to assault as well as pending cases. The first appellant was granted bail pending trial by this court on 8 May 2025 on four records. During the proceedings a quo, the investigating officer was not forthright and consistent in his testimony concerning the issue of whether the appellants deserved to be granted bail or not. Under cross examination, he first said that he had no fears that the appellants could run away if released on bail. He said that his fears were that the appellants could interfere with witnesses if released on bail. Later on, he went on to say that he had fears that they could abscond because they were facing many offences especially the first appellant. He then went on to say that he had no problem if the appellants were to be ordered not to interfere with witnesses and to stay at their given addresses. State counsel who appeared in the court a quo had also submitted that there were fears that the appellants could commit similar offences and also that they could abscond and not stand trial. These arguments were opposed by the appellants’ counsel. THE LAW AND ITS APPLICATION The law to be applied in matters of this nature is a well - trodden path in this jurisdiction. The granting or refusal of bail pending trial is a matter of judicial discretion which discretion is exercisable within the parameters of principles that are now trite. It is also trite that in an appeal against refusal of bail, an appellate court or judge will not sit as a court of first instance but the interference with the decision of a lower court will only be made if that lower court committed an irregularity or a misdirection or exercised its discretion so unreasonably or improperly as to vitiate its decision. See Madamombe v The State SC 117/21. In the present context, the appellants’ contention that their denial of bail was a violation of their right to unconditional release in terms of section 50 (1) (d) of the Constitution of Zimbabwe is unclear to me. A denial of bail pending trial by a court can in the very least constitute a misdirection rather than a violation of the right of an accused person. I do not therefore find any legal basis to interfere with the court a quo’s decision on the basis of the appellant’s first ground of appeal. In terms of the second, third and fourth grounds of appeal, the contention by the appellants is basically in saying that an offence of assault is not so serious and as such the learned magistrate ought to have considered bail conditions to address the concerns of interference with investigations rather than denying the appellants bail pending trial. The appellants are riding on the concessions made by the investigating officer that bail conditions could cater for the fears pointed out by the State. In as much as it is accepted that the State representatives together with the accused’s representatives have a say about whether there are compelling reasons warranting the denial of bail or not, the overall duty and discretion is reposed upon the judicial officer who must consider the relevant material placed before him or her from a neutral perspective to consider whether the interests of justice would be served by admitting the accused persons to bail pending trial. In the context of this case, the court a quo’s decision that the appellants may interfere with investigations was made in the light of the allegations that are levelled against them. It is difficult to find fault with the court a quo’s exercise of discretion when one looks at it in the context of the allegations being levelled against the appellants. One wonders what kind of bail conditions can refrain individuals who are alleged to have brazenly attacked the complainant in the manner that is alleged in the very presence of police officers who had come to the crime scene to attend to an accident. In as much as the appellants are still presumed innocent, the picture that has been portrayed about their behavior warranted the decision that was taken by the court a quo in denying them bail. The first appellant is in a worse off situation with his past record of previous convictions and pending cases of violence. His accomplices are alleged to have participated in attacking the complainant severely in a public place and hence one wonders what the appellants are crying about when the court a quo then says that they are likely to interfere with investigations. What is being portrayed here is a scenario where members of the public are just being attacked by some rogue elements for no apparent reason whilst going about their business in town. It is not then far - fetched for a court of law to have taken the view that such alleged rascals may interfere with witnesses or police investigations. Granting such individuals bail especially when they have previous convictions or pending cases or where such conduct is becoming rife in the community will be a failure of justice. The bail system will be put into disrepute and the public will lament over it as a setback to civilized society and they will regret that it is part of our legal system as entrenched in the Bill of Rights. I therefore see no merit in this appeal in the context of the record placed before me. In the result, the appeal against refusal to grant the appellants bail pending appeal is dismissed for lack of merit. Machaya & Associates, appellant’s legal practitioners National Prosecuting Authority, respondents’ legal practitioners