The defence lawyer must be fully conversant with the factors which the courts take into account in deciding whether or not to grant bail. In taking instructions from clients, all the information which will assist in arguing in favour of bail must be extracted, such as whether X has a fixed place of abode and how much bail he can afford if the court is inclined to grant bail. The State will often oppose bail simply because the police have indicated that X should not be allowed out on bail. The defence lawyer must obviously probe to establish whether the State has any proper basis or justification for opposing bail. In cases where there would appear to be a good reason against granting bail, the defence lawyer may nonetheless seek to persuade the court that the danger pointed to by the State in opposing bail can be overcome by the imposition of certain types of conditions attaching to the granting of bail.
In Ncube S-126-01 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. In Biti HH-23-02 the court 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 Ndhlovu 2001 (2) ZLR 261 (H) the court said that the primary question to be considered in deciding whether the accused should be admitted to bail is whether he will stand trial or abscond. It is equally important to consider whether he will influence the fairness of the trial by intimidating witnesses or tampering with the evidence. A further consideration is whether, if released, he will endanger the public or commit further offences. 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.