Grounds for refusal (Zimbabwe)

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The fundamental principle governing the court's approach to bail applications is to uphold the interests of justice. Section 117 (1) provides that, subject to this section and section 32, a person who is in custody in respect of an offence shall be entitled to be released on bail at any time after he or she has appeared in court on a charge and before sentence has been imposed, unless the court finds that it is in the interests of justice that he or she should be detained in custody. However, numerous restrictions have been imposed on magistrates and judges in respect of the granting of bail.

The court must take into account the factors set out in s 117(2) CPEA and try to strike a balance between the protection of the liberty of the individual and the administration of justice: Aitken & Anor v Attorney-General S-67-92. In our law persons are presumed innocent until their guilt has been proven. When a person applies for bail he has not yet been tried and the allegations against him 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 may be found not guilty when he 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 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 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.

Bail may be refused if the judicial officer considers it likely that if the person were to be admitted to bail:

  • he would abscond and would not stand trial (or, if he has been tried already but has not yet been sentenced, he would not appear to receive his sentence);
  • he would interfere with the evidence against him;
  • he would commit a further offence.

In addition to these grounds for refusal, the judicial officer may refuse to admit to bail for any other reason which seems to him to be good and sufficient.

See Zimbabwe Criminal Defense Manual