6—1

CHAPTER 6

BAIL
Section Page

1. Preliminary ..................................................................................................................... 6—2

2. Bail pending trial ............................................................................................................ 6—2

(1) grant of bail by police ........................................................................................... 6—2
(a) offences in respect of which bail may be granted by police ......................... 6—2
(b) who may grant bail ........................................................................................ 6—3
(c) when bail may be granted ............................................................................. 6—3
(2) grant of bail by a judicial officer
(a) application by accused .................................................................................. 6—3
(b) when bail may be granted ............................................................................. 6—5
(c) considerations
(i) basic principles ...................................................................................... 6—6
(ii) general grounds for refusing bail .......................................................... 6—6
(iii) onus and evidence ................................................................................. 6—7
(d) special provisions: extradited accused .......................................................... 6—8
(3) Ministerial certificate precluding bail .................................................................. 6—8
(4) methods of granting bail ....................................................................................... 6—9
(a) recognizances .............................................................................................. 6—10
(b) deposit by accused of sum of money .......................................................... 6—10
(c) sureties ......................................................................................................... 6—10
(5) bail conditions ..................................................................................................... 6—11
(6) amount of bail ...................................................................................................... 6—11
(7) amendment of recognizances or bail conditions or withdrawal of bail .............. 6—11
(8) breach of bail conditions ..................................................................................... 6—11
(a) failure to appear at trial ............................................................................... 6—12
(b) arrest of person on bail ................................................................................ 6—12
(c) breach of other conditions ........................................................................... 6—12
(9) return of forfeited bail ......................................................................................... 6—13
(10) appeal against decision on bail
(a) appeal by accused
(i) against decision of magistrate ............................................................. 6—13
(ii) against decision of judge ..................................................................... 6—14
(b) appeal by Attorney-General ........................................................................ 6—15
(11) termination of bail on entering plea in High Court ............................................ 6—17

3. Bail pending appeal ...................................................................................................... 6—17

(1) court to which to apply ........................................................................................ 6—17
(2) when bail may be granted ................................................................................... 6—17
(a) principles ..................................................................................................... 6—17
(b) Ministerial certificate precluding bail ........................................................ 6—18
(c) special provisions: extradited applicants .................................................... 6—18
6—2 Criminal Procedure in Zimbabwe

(3) effect on sentence of grant or refusal .................................................................. 6—18

(a) sentence of imprisonment ........................................................................... 6—18
(b) fine or corporal punishment ........................................................................ 6—18
(4) methods of granting bail ..................................................................................... 6—19
(5) procedure where applicant in default .................................................................. 6—19
(6) appeal against decision ....................................................................................... 6—19
(a) appeal by accused ........................................................................................ 6—19
(i) against decision of magistrate ............................................................. 6—19
(ii) against decision of judge ..................................................................... 6—20
(b) appeal by Attorney-General ................................................................................ 6—20

1. PRELIMINARY

Where a person has been arrested and detained pending trial, it may not always be appropriate for
him to be kept in custody, depending on such considerations as the nature of the offence.
Nevertheless, even though it may be inappropriate to keep the accused in custody until his trial,
the circumstances may be such that it would be equally inappropriate or even unwise to release
the accused from custody and rely merely on a summons to secure his attendance. In such a
situation the accused may be released on bail.

Bail may also be granted after conviction, if the accused has been sentenced to a term of
imprisonment and intends to appeal against the conviction or the sentence or both. Different
considerations apply to an application for bail, depending on whether the application is for bail
pending trial or bail pending appeal.

2. BAIL PENDING TRIAL

(1) GRANT OF BAIL BY POLICE

(a) Offences in respect of which bail may be granted by police

Where the offence is not one listed in the Third Schedule to the CP&EA, bail may be granted by
certain police officers.1 The offences in respect of which bail may not be granted by a police
officer are:
• treason;
• sedition;
• murder;
• rape;
• robbery;
• assault in which a dangerous weapon has been used;
• arson;

1 CP&EA s 131 or 132.

Bail 6—3

• breaking or entering any premises with intent to commit an offence, either at common
law or in contravention of any enactment;
• theft, receiving any stolen property knowing that it has been stolen, fraud, forgery or
uttering a forged document knowing it to be forged, where the amount or value involved
in the offence exceeds $1 000;
• any offence under an enactment relating to the unlawful possession of or dealing in
precious metal or stones;
• any offence relating to the coinage;
• a conspiracy, incitement or attempt to commit any of the offences listed above.

Comment

It will be seen that the list of offences in respect of which a police officer may not grant bail
does not coincide with the list of offences in respect of which a magistrate may not grant
bail.2 This could result in anomalies. For example, it would apparently be lawful for a police
officer to grant bail for an exchange control offence but a magistrate could not do so without
the consent of the Attorney-General.

(b) Who may grant bail

Bail may be granted under s 132 by any police officer of or above the rank of assistant inspector
or by any police officer in charge of a police station, whatever his rank.

(c) When bail may be granted

Section 132 authorises the grant of bail by a police officer “at a police station and at such time as
no judicial officer is available”. The object of the section is not to give the police an authority
parallel with that of a magistrate or judge. Where a judicial officer is available, the question of
bail must be decided by that judicial officer and not by a police officer. Equally, though, since the
Act gives the authority to police officers to grant bail, they should not shirk their responsibility
for deciding the question of bail on the pretext that a judicial officer will be available at some
time in the future. Nor should a police officer take the line that he is not qualified to decide such
matters. By virtue of his rank or appointment, he is qualified. If the accused requests bail and the
offence is one in respect of which a police officer may grant bail, the police officer should give
proper consideration to the request and should decide the matter on proper grounds (the factors to
consider will be dealt with below). There should be no question of an automatic refusal of bail by
police officers. The individual’s basic right to liberty still exists.3

(2) GRANT OF BAIL BY A JUDICIAL OFFICER

(a) Application by accused

An accused person who appears before a judge or magistrate may at any time apply verbally to
the judge or magistrate to be admitted to bail immediately.4 Alternatively, he may make a written

2 CP&EA ss 116 and 123 and Eighth Schedule, which was added by s 27 of Act 1 of 1992.
3 See D M Proudhon “Unlocking police bail”, Legal Forum vol 3 no. 3 (1991) p 44.
4 CP&EA s 117(1).
6—4 Criminal Procedure in Zimbabwe

application, in the form prescribed by the rules of court.5 The form of a written application to be
used in the High Court should set out:
(a) the applicant’s name and residential address;
(b) if he is employed, his employer’s name and address and the nature of his employment;
(c) where the application is made before conviction:
(i) the offence with which he is charged;
(ii) the court by which and the date on which he was last remanded:
(iii) the court criminal record book number (if known);
(iv) the police criminal record number, the name of the investigating officer and where
the investigating officer is stationed (if these details are known);
(d) where the application is made after conviction and sentence:
(i) the offence of which he was convicted and the sentence imposed;
(ii) the court(s) which convicted the accused and passed sentence;6
(iii) the court criminal record book number (if known);
(iv) the date(s) of conviction and sentence;
(e) whether or not bail was previously refused by a magistrate and, if it was, the grounds on
which it was refused (if known) and the date of refusal;
(f) the grounds on which the applicant now seeks release on bail;
(g) the amount of bail the accused is prepared to give and the names of any persons who are
prepared to stand surety for him.7

There are no provisions regarding the form to be used in the magistrates court, but it is submitted
that the above format should be used as a model (with suitable changes). Once an application has
been determined by a judge or magistrate, a further application to the judge or magistrate (or to
any other judge or magistrate) may be made only if it is based on facts which were not placed
before the judge who magistrate who first determined the application and which arose or were
discovered after he made that determination.8 If no new facts emerge, the only recourse the accused
has is to appeal. This will be dealt with below.

Where an application is made to the High Court, a copy of the application must be served on the
Attorney-General. The responsibility for service is on the registrar, but if the accused is legally
represented, the registrar may require the accused’s legal representative to serve the application
on the Attorney-General. The registrar must set the matter down for hearing within 48 hours after
filing. This period may be extended by consent or by an order of a judge.9 At least three hours

5 CP&EA s 117(2).
6 This is in the plural because it is possible for a person to be convicted in the magistrates court and sentenced in the
High Court.
7 High Court (Bail) Rules 1991 (SI 109/1991), r 5(1).
8 CP&EA s 116(1), proviso (ii).
9 HC(B)R, r 5(2).
Bail 6—5

before the hearing, the Attorney-General must file a written response to the application and a
copy of the magistrate’s comments. If practicable, a copy of these documents must be served on
the applicant or his legal practitioners.10

(b) When bail may be granted

Although bail would usually be granted as a result of an application by the accused, there would
appear to be no reason why a judge of the High Court or magistrate may not of his own volition
grant bail in a suitable case. Neither a judge nor a magistrate may grant bail before the accused
has appeared in court.11 Consequently, if a police officer refuses to grant bail, the accused would
appear to have no recourse until he appears in court. This does not necessarily mean that the
accused must wait until the police take him to court; if he appears in court at his own request
before the expiry of the 48-hour period referred to in s 32(2) of the CP&EA, he may be granted
bail.12

Once the accused has appeared in court, bail may be granted at any time before sentence is
imposed.

A magistrate may grant bail in respect of any offence (other than an offence specified in the
Eighth Schedule) to an accused person who is in his area of jurisdiction.13 Where the offence is
one specified in the Third Schedule, a magistrate may grant bail only if the Attorney-General
consents to the accused’s admission to bail. The offences specified in the Third Schedule14 are:

• treason;

• murder;

• rape or a conspiracy, incitement or attempt to commit rape;

• robbery accompanied by the use of a firearm of lethal weapon or a conspiracy, incitement

or attempt to commit such a robbery;

• theft of a motor vehicle as defined in s 2 of the Road Traffic Act 48 of 1976;

• any offence in respect of which the Attorney-General has notified the magistrate of his
intention to indict the case to the High Court.

Comment

This list is somewhat wider than that which previously appeared in s 116(1)(b). It is difficult
to see the rationale behind the change, since several of the offences listed could be tried in
the magistrates court and not all the offences are necessarily very serious in themselves.
The list was amended by Act 20 of 1994, following considerable criticism. The Attorney-
General had taken administrative steps to alleviate the difficulties caused by ther introduction
of the previous list and the 1994 amendment formalised those steps.

10 HC(B)R, r 5(4).
11 CP&EA s 116(1)(a) and (b).
12 Minister van Wet en Orde en Andere v Dipper 1993 (3) SA 591; 1993 (2) SACR 221 (A); and see also S v Hlongwane
1989 (4) SA 79 (T), which seems to accept that the superior courts have an inherent common law power to grant bail.
13 CP&EA s 116(1)(b).
14 As amended by s 5 of Act 20 of 1994.
6—6 Criminal Procedure in Zimbabwe

A judge of the High Court may grant bail in respect of any offence and irrespective of the attitude
of the Attorney-General.15 The High Court’s powers are not completely unfettered. Where an
application is made for bail in respect of an Third Schedule offence, the Minister responsible for
the administration of the Law and Order (Maintenance) Act may issue a certificate stating that in
his opinion public security will be prejudiced if the accused is admitted to bail.16 This subject
will be dealt with fully below.

(c) Considerations

(i) Basic principles

The basic starting point is s 13 of the Constitution, which protects the right to personal liberty.
This right is not unqualified. Section 13(2), for instance, allows a person to be deprived of his
liberty —

“ upon reasonable suspicion of his having committed, or being about to commit, a criminal
offence”.

Some magistrates and prosecutors tend to display a rather cavalier attitude towards bail and seem
to think that for certain classes of people loss of liberty is unimportant. This attitude is clearly
wrong. The attitude of the courts (and of prosecutors) should be that accused persons who are
placed on remand should be remanded on bail unless it is not in the interests of justice to grant
bail.17

Related to the right to liberty is the right to trial within a reasonable time. Section 13(4) of the
Constitution provides that if a person who is detained on a criminal charge is not brought to trial
within a reasonable time, then —

“ without prejudice to any further proceedings that may be brought against him, he shall
be released either unconditionally or upon reasonable conditions, including in particular
such conditions as are reasonably necessary to ensure that he appears at a later date for
trial or for proceedings preliminary to trial.”

This does not mean that a magistrate may of his own volition refuse to remand a case any further;
there must be a reason for the refusal.18

(ii) General grounds for refusing bail

Where a judge or magistrate has power to admit an accused person to bail, he may refuse to grant
bail if he considers it likely that if the accused were admitted to bail, the accused would:

• not stand trial or undergo a preparatory examination or appear to receive sentence; or

• interfere with the evidence against him; or

• commit an offence.
15 CP&EA s 116(1)(a).
16 CP&EA s 116(2).
17 Mutambara & Ors v Minister of Home Affairs 1989 (3) ZLR 96 (H).
18 See Chapter 5, above, under Remand.
Bail 6—7

There is, in Zimbabwe (though not in South Africa), the general power to refuse bail for any other
reason which to the judge or magistrate seems good and sufficient.19 The discretion granted to the
court must be exercised judicially.

In this regard, such factors as the following might usefully be taken into account:

(A) The likelihood that the accused will abscond: The court should consider the accused’s
status in society; the nature of the offence; the likely sentence, if the accused is convicted; the
accused’s ties to the community and to the country; what property the accused owns or controls
and whether it is likely that he would be prepared to abandon that property rather than undergo
trial; the strength of the prosecution case against the accused; and the circumstances of the
accused’s arrest (whether he resisted arrest, attempted to escape, and so on). A condition that the
accused surrenders his travel documents and reports at a designated police station at particular
hours may make it difficult, if not impossible, for him to abscond.

(B) The likelihood of interference with witnesses or evidence: Who the witnesses are; the
accused’s relationship with them; whether he works with or lives in close proximity to them;
whether there are other possibilities for influencing the witnesses; if real evidence is still being
sought, whether the accused’s freedom will thwart the attempts of the police to find the evidence.
A condition that the accused report at specified times to a particular police station may make it
difficult or impossible for the accused to get to the area where the evidence is located, if this is
known.

(C) The likelihood that the accused will commit another offence: With most accused persons,
the likelihood is small, but if the accused has numerous convictions and has always lived
dishonestly, the chances are good that he will use time out of custody to continue to live dishonestly.
If the accused is shown to have committed offences when on bail, the likelihood that he will
commit further offences becomes greater; and the onus then falls on the accused to show that
there is in fact no likelihood of repetition.20

(iii) Onus and evidence

In view of the general constitutional right of liberty, the onus of showing that bail should not be
granted before sentence is passed would appear in the first instance to be on the prosecution.21 It
is not enough for the prosecutor to make bald assertions that a particular ground for refusing bail
exists.22 He must show that his assertion is well-grounded and based on full information.

As to how he must prove his assertions, it is usually sufficient for the prosecutor simply to make
a statement from the bar as to the facts on which he bases his opposition to bail, but he should be
prepared, if the application is opposed or if the judicial officer so requires, to call evidence.

If the investigating officer is called to give evidence, it may well be that much of what he has to
say will be hearsay. This is unavoidable. There is no rule of law precluding the admission of

19 CP&EA s 116(7).
20 Attorney-General v Phiri 1987 (2) ZLR 33 (H).
21 S v Chiadzwa 1988 (2) ZLR 19 (S); Attorney-General v Phiri 1987 (2) ZLR 33 (H); 1988 (2) SA 696 (ZH); Mutambara
& Ors v Minister of Home Affairs 1898 (3) ZLR 96 (H).
22 S v Hussey 1991 (2) ZLR 187 (S).
6—8 Criminal Procedure in Zimbabwe

hearsay evidence in these circumstances. The only question should be its reliability. If the
investigating officer is unable to provide information on a particular point, other reliable evidence
should be sought.

Once the police have made credible allegations against the accused which would provide grounds
for refusing bail, however, the onus then shifts to the accused. He must show, on a balance of
probabilities, that his admission to bail would not prejudice the interests of justice and why it is
in the interests of justice that he should be set at liberty before his trial commences or at any other
time.23

The accused is at liberty to argue that the allegations made by the State do not give rise to a
reasonable suspicion that the alleged offence (or any other) was committed; he may also lead
evidence to demolish, clarify or weaken the facts alleged by the State.24

(d) Special provisions: extradited accused

Persons who are brought before the Zimbabwean courts having been extradited from another
country may apply for bail in the same way as any other accused person. In considering such an
application, the court would normally take into account the factors mentioned above. However,
the Minister responsible for the Extradition Act [Chapter 9:08]25 may certify in writing that the
accused has been extradited from a foreign country and that he (the Minister) has given an
undertaking to the government of that country. The undertaking can be one of two kinds. If the
undertaking was that the accused would not be admitted to bail while he is in Zimbabwe, then the
judge or magistrate is obliged to refuse to grant bail. If the undertaking was that the accused
would not be admitted to bail except on certain conditions (which must be specified in the
certificate), then the accused may be released on bail only on those conditions. The judge or
magistrate may fix further conditions not inconsistent with those specified by the Minister.26

The certificate can be produced from the bar by the prosecutor and is prima facie proof of its
contents.27

Comment

The circumstances in which an undertaking of this nature would be justified must be very
limited. Normally a person would be extradited to Zimbabwe at the request of the authorities
in Zimbabwe and any question of his subsequent release on bail would be a matter for the
Zimbabwe authorities only. It would only be where the authorities of the foreign country
themselves have a reason to seek the return of the accused that the Zimbabwean Minister
would be justified in giving an undertaking in terms of s 116(5).

(3) MINISTERIAL CERTIFICATE PRECLUDING BAIL

Where the accused has been charged with an Third Schedule offence and has applied to a judge

23 S v Chiadzwa 1988 (2) ZLR 19 (S).

24 Attorney-General v Blumears & Anor 1991 (1) ZLR 118 (S); Martin v Attorney-General & Anor 1993 (1) ZLR
153 (S).
25 The Minister of Home Affairs (s 2 of the Act).
26 CP&EA s 116(5), proviso.
27 CP&EA s 116(6).
Bail 6—9

of the High Court to be admitted to bail, the Minister responsible for the administration of the
Law and Order (Maintenance) Act [Chapter 11:07]28 may issue a certificate stating that in his
opinion it is likely that public security would be prejudiced if the accused were admitted to bail.29
The certificate must state the grounds on which the Minister’s opinion is based. Reasonable
grounds must exist for seeking and issuing a Ministerial certificate and the Minister should not
issue a certificate without first complying with the audi alteram partem rule.30

A Ministerial certificate, like most other administrative actions, is subject to review by the courts.31

A Ministerial certificate may not be used to prevent a person from being released from custody if
bail has already been granted.

A copy of the certificate must, where practicable, be served on the accused before the hearing of
his application for bail.32 Where such a certificate is produced to a judge, bail must be refused
unless the accused satisfies the judge that, despite the grounds stated in the certificate, he should
be admitted to bail.33

Comment

The issue of a Ministerial certificate should be a rare event, since a certificate may only be
issued in respect of a Third Schedule offence and then only on the grounds that public
security is likely to be prejudiced if the accused is admitted to bail. It is difficult, for instance,
to imagine how such a certificate could be justified in a case of attempted rape or indeed
for any alleged offence other than treason or contravening s 37 or 52 of the Law and Order
(Maintenance) Act.

This provision, introduced by s 7 of Act 1 of 1992, is much narrower than the provision it replaces.
The new subsection also allows the court to grant bail in spite of a Ministerial certificate, whereas
previously the court’s hands would have been tied.

It would be improper for a prosecutor to seek a Ministerial certificate to prevent bail being granted
in an ordinary criminal case.

The question of the constitutionality of Ministerial certificates was considered in Bull v Minister
of Home Affairs 1986 (1) ZLR 202 (S), where the Supreme Court held that such certificates did
not violate ss 13 and 18(9) of the Constitution.

(4) METHODS OF GRANTING BAIL

Where a judge or magistrate decides to grant bail, one of two steps may be taken.
28 The Minister of Home Affairs (GN 285/1980).
29 CP&EA s 116(2)(a).
30 Mutambara & Ors v Minister of Home Affairs 1989 (3) ZLR 96 (H); but compare the earlier case of Carvalho v
Minister of Home Affairs 1987 (2) ZLR 172 (H), where Sandura JP held that it was not necessary for the Minister to act
reasonably or comply with the audi alteram partem rule, provided that he acted bona fide. With respect, the reasoning in
Mutambara’s case is far more convincing and far more in keeping with a constitution in which basic rights are enunciated.
See also Moyakhe & Anor v Attorney-General, Transkei 1993 (3) SA 197 (Tk G), which upheld the requirement for the
audi alteram partem rule.
31 Fikilini v Attorney-General 1990 (1) ZLR 105 (S).
32 CP&EA s 116(3).
33 CP&EA s 116(4).
6—10 Criminal Procedure in Zimbabwe

(a) Recognizances

The first step is that the accused (and if the court so requires, one or more sureties) enter into
recognizances, that is, an undertaking by which the accused and his sureties, if any, undertake to
pay to the court a specified sum of money, if the accused fails to comply with certain conditions.34
These will be dealt with below.

(b) Deposit by accused of sum of money

Instead of entering into recognizances, the accused can be permitted to deposit a sum of money
or Government securities or other property of whatever description acceptable to the Attorney-
General.35 The title deeds of the accused’s dwelling house could, for example, be deposited. In
practice, it is far more common for accused persons to deposit sums of money than to enter into
recognizances. Conditions similar to those relating to recognizances will be imposed.

(c) Sureties

As mentioned, recognizances may be required of one or more sureties as well as from the accused.
This course is frequently taken and would be appropriate where the persons who stand surety are
likely to be able to have some influence on the accused’s subsequent conduct. The fact that a
person is willing to take the risk of standing surety is normally a fair indication that he feels that
he can ensure compliance by the accused with the conditions of the recognizance, but situations
may well exist where a proposed surety is willing to forfeit the pledged sum in order to allow the
accused to escape trial. Consequently, some investigation should be made before a person is
accepted as a surety.

If for any reason insufficient sureties have been accepted or if, having been accepted, they become
insufficient, the judge or magistrate who granted bail may order the accused to be arrested and
may require him to find further sureties. If he fails to find the further securities, the accused may
be committed to prison.36

A surety is generally not discharged until the accused is sentenced or discharged.37 However, a
person who has agreed to stand security for the accused may change his mind. If he wishes to be
discharged from his recognizance, he must apply to the judge or magistrate who granted bail for
the recognizance to be discharged in respect of him. Such an application can be made in person
or in writing. When the application is made, a warrant of arrest must be issued; when the accused
is brought before the court (or appears voluntarily), the surety will be discharged. The accused
will then have to find other sureties.38 Alternatively, the surety may bring the accused to court at
any time before sentence and, in effect, surrender him to the court in discharge of the
recognizances.39 The court may commit the accused to prison or release him again on bail.

The obligation incurred by a surety is personal; if he dies before any forfeiture of the recognizance
has occurred, his estate is not liable in respect of the recognizance. The accused may, however,
be required to find a new security.40
34 CP&EA s 118(1). 35 CP&EA s 131(1).
36 CP&EA s 125. 37 CP&EA s 130.
38 CP&EA s 128(3). 39 CP&EA s 129.
40 CP&EA s 128(4).
Bail 6—11

It should be noted that there is no provision for sureties to deposit money, security or other
property.

(5) BAIL CONDITIONS

Certain conditions must be included in the conditions of any recognizance or in the conditions
made in respect of the deposit of money or other security. The general conditions vary, depending
on the nature of the proceedings, but the essence of them is that the accused will appear in court
at the appointed times and places until the proceedings are completed.41 Further specific conditions
may be, and frequently are, added if the judge or magistrate considers them to be necessary or
advisable in the interests of justice.42 They include the surrender by the accused of his passport;
conditions relating to the times and places at which and persons to whom he must personally
present himself (eg reporting to a specified police station); conditions relating to places where
the accused is forbidden to go; prohibition against communication with witnesses for the
prosecution; and any other matter relating to the accused’s conduct, provided that such matter
can be said to be necessary or advisable in the interests of justice.

(6) AMOUNT OF BAIL

Once the decision in principle has been reached that the accused should be released on bail, the
court is required to perform a balancing act, reconciling the twin objectives of allowing the accused
to be at liberty and ensuring that he is sufficiently motivated to appear in court when required.
The amount of bail taken in any case, whether in the form of recognizances or deposit of money
or security, is in the discretion of the judge or magistrate. The only limitation is that no person
may be required to give excessive bail.43 What is excessive clearly depends on the circumstances.
What to one person may be a drop in the ocean may represent another’s life savings. Investigation
should be carried out into the means of the accused and sureties. Suitable conditions may allow
the reduction of the amount of bail required.

(7) AMENDMENT OF RECOGNIZANCES OR BAIL CONDITIONS OR WITHDRAWAL OF BAIL

If :
• new facts are brought to his attention; and
• as a result he considers it necessary or advisable in the interests of justice,
a judge or magistrate who has granted bail (or, if he is not available, another judge or magistrate)
may require that the conditions on which bail was granted be amended or added to. He may, in
appropriate cases, order that the accused be committed to prison.44 A warrant of arrest may be
issued.

(8) BREACH OF BAIL CONDITIONS

There are three remedies available in the event of a breach or potential breach of the conditions
of bail.

41 CP&EA s 118(2). 42 CP&EA s 118(3).

43 CP&EA s 120. 44 CP&EA s 126.
6—12 Criminal Procedure in Zimbabwe

(a) Failure to appear at trial

The first remedy is used where a trial date has been fixed and due notice of the trial has been
given. If the accused fails to appear, his name must be called three times in or near the court
premises. If the accused still is in default, the prosecutor may apply for a warrant of apprehension
and move that the accused (and his sureties, if any) be called on their recognizance and that the
recognizance (or sum of money or other security deposited by the accused) be declared forfeit. If
the court accedes to the prosecutor’s application, the declaration of forfeiture has the effect of a
civil judgment against the accused and his sureties.45

NOTE: The section does not empower the court of its own volition to issue a warrant and declare
the recognizances forfeit: the prosecutor must apply.

(b) Arrest of person on bail

A peace officer, if he believes on reasonable grounds46 that a person who is on bail is about to
abscond for the purpose of evading justice or is about to interfere with the evidence against him,
may arrest that person without warrant.47 He must forthwith inform the accused of the reason for
arrest48 and as soon as possible take the accused before a magistrate. If the magistrate is satisfied
that the ends of justice would otherwise be defeated, he may commit the accused to prison.

(c) Breach of other conditions

The power of a peace officer to make an arrest of a person on bail is limited to the circumstances
mentioned above. In the event of a breach of any other specific conditions, such as failure to
appear for further remand or failure to comply with reporting conditions, s 133 of the CP&EA
applies. If it appears to the judge or magistrate who admitted the accused to bail or to the judge or
magistrate before whom the accused had to appear in terms of any recognizance that default has
been made in any of the conditions of recognizance, he may issue an order declaring the
recognizance to be forfeited and issue a warrant of arrest. The declaration of forfeiture has the
effect of a civil judgment against the accused and his sureties.

Comment

The Act does not say so, but it is submitted that before an order of forfeiture is issued the
audi alteram partem rule should be applied. Forfeiture is, after all, discretionary, not
mandatory. It may be that the accused has a perfectly reasonable explanation for his
default and that the magistrate, had he heard the explanation, would not have declared
the recognizance forfeit. While it may be argued that there is no need for the magistrate to
hear the accused’s explanation, since the Attorney-General may remit a forfeited
recognizance, that is an involved process and it would be preferable for the magistrate to
let the accused make his explanation.

On the other hand, if the default consists in a failure to appear at court, it would not be necessary
to hear the accused before issuing a warrant of arrest: the accused’s absence would speak for
45 CP&EA s 119(2).
46 As to the meaning of this phrase, see Chapter 5 above.
47 CP&EA s 127(1).
48 CP&EA s 127(2).
Bail 6—13

itself.

(9) RETURN OF FORFEITED BAIL

Where bail (whether recognizances or deposit of money or other property) has been forfeited, the
discretion as to whether it should be remitted vests in the Attorney-General. The Attorney-General
may remit the whole or part of forfeited bail.49

The normal procedure50 is that the person affected by the forfeiture writes to the Attorney-General,
requesting a remission of the bail. The Attorney-General calls for the papers and makes a decision
based on them and on any recommendation the magistrate may make.

(10) APPEAL AGAINST DECISION ON BAIL

(a) Appeal by accused

(i) Against decision of magistrate

An appeal against a magistrate’s decision on a bail application may be made to a judge of the
High Court.51 The provisions of s 121(1) are less than clear as to who may appeal; it is submitted,
however, that a surety could appeal.

No appeal lies where the appellant has been sentenced in respect of an offence specified in the
Fourth Schedule52 or where the appeal is based on facts which were not placed before the magistrate
against whose decision the appeal is being brought.53 In the latter event, the correct procedure is
to make a fresh application to the magistrate, relying on the new facts.

Where an appeal is made, it must be in writing. The form of the appeal is similar to the form of a
written application to the High Court,54 but with the following additions:

• where the appeal is brought in relation to any recogizance or condition thereof, the terms
of the recognizance or condition concerned and the date on which the recognizance was
entered into or the condition was imposed; and

• the grounds on which the appellant seeks revocation or alteration of the recognizance or
condition.55

A copy of the written statement must be served on the Attorney-General by the registrar, but if
the accused is legally represented, the registrar may require the legal representative to effect
service. The registrar must set the matter down for hearing within 96 hours after filing. This
period may be extended by consent or by an order of a judge.56 At least three hours before the
hearing, the Attorney-General must file a written response to the application and a copy of the

49 CP&EA s 134.
50 There is no formal procedure laid down by the act or rules of court.
51 CP&EA s 121(1).
52 These are all offences under the Law and Order (Maintenance) Act.
53 CP&EA s 121(1), proviso. 54 See section 2(2)(i), above.
55 HC(B)R, r 6(1). 56 HC(B)R, r 6(2).
57 HC(B)R, r 6(4).
6—14 Criminal Procedure in Zimbabwe

magistrate’s comments. If practicable, a copy of these documents must be served on the applicant
or his legal practitioners.57

On appeal, a judge may make such order as seems just in the circumstances of the case. An order
made by a judge on appeal is deemed to be an order of the magistrate against whose decision the
appeal was made.58

It is far from clear whether a further appeal lies to the Supreme Court if the appeal to the High
Court is unsuccessful. The order made by a judge of the High Court in this sort of appeal is
deemed to be an order of the magistrate. The right of appeal from the magistrates court appears to
be given only to persons who have been convicted;59 there appears to be no general right of
appeal against any order made by the magistrates court in a criminal case, while the Supreme
Court does not have an inherent right to hear appeals from any other court; it only has a right to
hear appeals where the right is given “in terms of any other enactment”.60

(ii) Against decision of judge

An unfettered right of appeal to the Supreme Court used to lie against the refusal of a judge of the
High Court to grant bail, if the judge was hearing the matter at first instance rather than on
appeal,61 but now the leave of a judge of the High Court or a judge of the Supreme Court would
appear to be required.62 Where such an appeal is made, the onus lies on the appellant to show, on
a balance of probabilities, that his admission to bail would not prejudice the interests of justice.63

Where an application is made to the Supreme Court, it must be in the form of a written statement.
The form of the statement is virtually identical to the statement that would be submitted in the
event of an appeal to the High Court.64

A copy of the written statement must be served on the Attorney-General by the appellant’s legal
practitioner (if he has one) or by the registrar. The appellant’s legal practitioner (or the registrar)
must also obtain a copy of the judgment of the court which convicted and/or sentenced the
appellant. This must be filed together with the written application at least one day before the
hearing of the application, but the filing of the copy of the judgment may be dispensed with by a
judge of the Supreme Court where obtaining it would unnecessarily delay the hearing of the

58 CP&EA s 121(2).
59 MCA s 60.
60 SCA s 9(1); and see S v Tekere & Ors 1980 ZLR 441 (A). While an appeal used to lie against any order of the High
Court in a criminal case (S v Beahan (2) 1989 (1) ZLR 359 (H)), this would no longer appear to be the case, since the repeal
of s 44(1) of the HCA by s 2 of Act 30 of 1989.
61 HCA s 44(1); S v Chikumbirike 1986 (2) ZLR 145 (S).
62 HCA s 44(5). Again, this is not clear: the right of appeal only arises where a judge of the High Court has made an
interlocutory order or given an interlocutory judgment in relation to “any criminal proceedings before the High Court”. Is
a bail order an interlocutory order? Is a bail application “proceedings before the High Court”?
63 S v Hussey 1991 (1) ZLR 187 (S). The headnote to this case states, in part, that “an onus lies on an applicant [for bail]
to show … that his admission to bail would not prejudice the interests of justice”. It is submitted that the headnote is, in this
respect, misleading and that the true position is that in the first instance the onus is on the State to show why bail should not
be granted but only on appeal against a refusal to grant bail does the onus fall on the appellant.
64 Supreme Court (Bail) Rules 1991 (SI 290/1991) r 5(1).
65 SC(B)R r 5(2).
66 SC(B)R r 5(3).
Bail 6—15

application.65 The registrar must, after consultation with a representative of the Attorney-General,
set the matter down for hearing within 4 days after filing. This period may be extended by consent
or by an order of a judge.66 At least one day before the hearing, the Attorney-General must file a
written response to the application and a copy of the magistrate’s comments. If practicable, a
copy of these documents must be served on the applicant or his legal practitioners.67

(b) Appeal by Attorney-General

The Attorney-General may appeal to a judge of the High Court against the granting of bail by a
magistrate.68 In view of the wording of the section — that the Attorney-General may “appeal
against the granting of bail” (my emphasis) — it is not clear whether the Attorney-General has a
right of appeal against other aspects of an order granting bail, such as the amount of bail, the
sureties and the conditions on which bail was granted.

The Attorney-General has no right of appeal against an order of the High Court granting bail,
unless the appeal is on a point of law.69

Where the Attorney-General wishes to appeal against the granting of bail by a magistrate, he
must do so within seven days of bail being granted.70 If the magistrate, immediately after the
granting of bail, is notified by the prosecutor that the Attorney-General’s decision is to be sought
as to whether to appeal, the accused must remain in custody (if he has been in custody) or start
serving his sentence71 until either:

• if he does not intend to appeal, the Attorney-General informs the magistrate accordingly
or until the lapse of seven days from the granting of bail, whichever happens sooner; or

• if the Attorney-General does appeal, the judge makes a decision in the matter.72

If the magistrate is not advised immediately after the granting of bail that the Attorney-General’s
decision is to be sought, the bail order comes into effect and is not revoked by the Attorney-
General subsequently appealing.

Where the Attorney-General is appealing against the grant of bail by a magistrate before conviction
and sentence, the appeal will be to a judge of the High Court. The Attorney-General appeals by
filing with the registrar of the High Court a written statement setting out:

• the name of the person granted bail;

• if bail was granted before the person was convicted, the offence with which the person
was charged and the court by which bail was granted;

67 SC(B)R r 5(4).
68 CP&EA s 122(1).
69 HCA s 44(6); Attorney-General v Mharapara 1986 (1) ZLR 19 (S).
70 CP&EA s 122(1).
71 If the accused has been out of custody until the time of sentence and is sentenced to a term of imprisonment, the term
of imprisonment begins immediately it is imposed, unless bail is granted. Accordingly, if the magistrate grants bail pending
appeal and the prosecutor notifies the magistrate that the Attorney-General’s decision is to be sought as to whether to
appeal against the grant of bail, it would appear that the accused must start serving his sentence.
72 CP&EA s 122(2).
6—16 Criminal Procedure in Zimbabwe

• if bail was granted after conviction and sentence, the offence with which he was convicted
and the sentence imposed, the court(s) convicting and sentencing the person, and the
date(s) of conviction and sentence;

• the amount of bail granted and any conditions; and

• the grounds on which the Attorney-General seeks the revocation or alteration of bail.73

A copy of the written statement must be served by the Attorney-General on the accused, his legal
practitioner (if he has one) and on the magistrate.74 The magistrate must, where practicable, file
with the registrar his written comments on the appeal at least three hours before the hearing of the
appeal.75 The registrar must, after consultation with a representative of the Attorney-General and
the accused’s legal practitioner (if any), set the matter down for hearing within 48 hours after
filing. This period may be extended by consent or by an order of a judge.76 At least three hours
before the hearing, the accused’s legal practitioner (if any) must file with the registrar his written
response to the appeal. If practicable, a copy of these documents must be served on the Attorney-
General.77

Where the Attorney-General is appealing against the grant of bail by a magistrate after conviction
and sentence (ie, where the accused wishes to appeal or to apply for leave to appeal or for an
extension of time within which to apply for leave), the appeal will be to a judge of the Supreme
Court. The Attorney-General appeals by filing with the registrar of the Supreme Court a written
statement similar to that in the case of an appeal to the High Court.78

A copy of the written statement must be served by the Attorney-General on the accused, his legal
practitioner (if he has one) and on the judge.79 The judge must, where practicable, file with the
registrar his written comments on the appeal at least one day before the hearing of the appeal.
The registrar must, after consultation with a representative of the Attorney-General and the
accused’s legal practitioner (if any), set the matter down for hearing within four days after filing.
This period may be extended by consent or by an order of a judge. At least three hours before the
hearing, the accused’s legal practitioner (if any) must file with the registrar his written response
to the appeal. If practicable, a copy of these documents must be served on the Attorney-General.

Comment

Rule 6 of the Supreme Court of Zimbabwe (Bail) Rules is written as though the Attorney-
General is empowered to appeal against the grant of bail by a judge of the High Court. This
is clearly an error. Section 122 of the CP&EA, to which reference is made in rule 6(1),
deals only with appeals against the granting of bail by magistrates. There is no provision in
the CP&EA which gives the Attorney-General any right to appeal against the decision of a
judge of the High Court relating to bail. Section 44(5) of the HCA gives the Attorney-General
the right to appeal against an “interlocutory order” or an “interlocutory judgment” in relation
to any criminal proceedings pending before the High Court. In that event, he must have the
leave of a judge of the High Court or, if the judge refuses leave, the leave of a judge of the
Supreme Court. If an order in relation to bail could be described as an interlocutory order

73 HC(B)R r 7(1). 74 HC(B)R r 7(2).

75 HC(B)R r 7(3). 76 HC(B)R r 7(4).
77 HC(B)R r 7(5). 78 SC(B)R r 6(1).
79 See the comment which follows: the reference to a judge is clearly incorrect.
Bail 6—17

or judgment, then it would appear that the Attorney-General may, with leave, appeal. He
has a right of appeal on a point of law under s 44(6) of the HCA. However, the reference in
r 6(1) to s 122 of the CP&EA would still be incorrect.

(11) TERMINATION OF BAIL ON ENTERING PLEA IN HIGH COURT

In terms of s 169 of the CP&EA, where a person is indicted for trial before the High Court having
been admitted to bail, his plea to the indictment has the effect of terminating the bail, unless the
Court directs otherwise. If bail is terminated, the accused must be detained in custody until the
conclusion of the trial.

3. BAIL PENDING APPEAL

(1) COURT TO WHICH TO APPLY

Where a person is convicted or sentenced by the High Court, an application for bail pending
appeal or leave to appeal or pending an application for extension of time within which to note an
appeal must be determined by a judge of the Supreme Court or the High Court.80 Where the
accused has been convicted and sentenced by the magistrates court, an application for bail pending
automatic review or appeal or leave to appeal or pending an application for extension of time
within which to note an appeal may be determined by a judge of the Supreme Court of High
Court or by a magistrate.

Reasonable notice of any such application must be given to the Attorney-General (where the
application is made to a judge) or to the local public prosecutor (where the application is made to
a magistrate).81

A magistrate may not, without the Attorney-General’s consent, grant bail for a Third Schedule
offence.

As with an application for bail pending trial, once an application has been determined by a judge
or magistrate, a further application to the judge or magistrate (or to any other judge or magistrate)
may be made only if it is based on facts which were not placed before the judge or magistrate who
first determined the application and which arose or were discovered after he made that
determination.82

(2) WHEN BAIL MAY BE GRANTED

(a) Principles

Bail may be granted following conviction and sentence, pending appeal or review.

Different principles now apply, as the presumption of innocence no longer exists. This is

80 CP&EA s 123(1)(a).
81 CP&EA s 123(1), proviso (i).
82 CP&EA s 123(1), proviso (ii).
83 S v Kilpin 1978 RLR 282 (A).
84 S v Tengende & Ors 1981 ZLR 445 (S).
6—18 Criminal Procedure in Zimbabwe

particularly so in the case of an appeal against sentence only, when the accused’s guilt is not in
issue and a substantial prison term is the usual sentence for the offence.83 In the absence of positive
grounds for granting bail, the proper approach to bail is that it should be refused.84

The onus now falls on the accused to show that he should be admitted to bail.85 The difficulty of
discharging that onus will depend on two main factors: the likelihood of the appellant absconding
(which will depend, inter alia, on the length of any prison sentence passed) and the prospects of
success on appeal.86 The greater the likelihood that the accused will abscond, the greater must be
the prospects of success before bail should be granted. Other factors to consider will be the right
of the individual to liberty and the likely delay before an appeal can be heard.87

(b) Ministerial certificate precluding bail

As with an application for bail pending trial, a Ministerial certificate may be issued precluding
the grant of bail.88 Identical principles apply.

(c) Special provisions: extradited applicants

Where an applicant for bail pending review or appeal has been extradited to Zimbabwe, identical
provisions apply as to an application by such a person for bail pending trial.89

(3) EFFECT ON SENTENCE OF GRANT OR REFUSAL

(a) Sentence of imprisonment

If an application for bail pending review or appeal is refused, the applicant would normally start
serving his sentence. However, the judge or magistrate may direct that the applicant instead be
treated as an unconvicted prisoner.90 In that case, unless the High Court or Supreme Court directs
otherwise, any period spent in prison until the determination of the appeal or review does not
count as part of any term of imprisonment.91

Any time spent out of custody on bail does not count as part of any sentence of imprisonment; if
as a result of the determination of the appeal or review, a sentence of imprisonment is imposed, it
begins to run on the day the applicant is received into prison to serve his sentence.92

(b) Fine or corporal punishment

85 S v Williams 1980 ZLR 466 (A) at 468.

86 As to the principles governing the decision on whether there is a reasonable prospect of success on appeal, see R v
Muller 1957 (4) SA 642 (A) at 645; R v Kara 1961 (1) SA 116 (GW); and see Chapter 27, section 1, below.
87 S v Tengende supra; S v Benatar 1985 (2) ZLR 205 (H); S v Nyathi Juta SCD 1/1994 p 4 (NC).
88 CP&EA s 123(2), (3) and (4).
89 CP&EA s 123(5) and (6); and see above.
90 The CP&EA does not say so, but presumably this means that the accused would be incarcerated in a remand prison.
See s 123 (7).
91 CP&EA s 123(7), (8) and (9).
92 CP&EA s 123(8) and (9).
93 Presumably this means any fine imposed in addition to a sentence of imprisonment.
94 CP&EA s 123(7)(b).
Bail 6—19

Even if an application for bail is refused, the judge or magistrate may postpone the payment of
any fine93 or the execution of a sentence of corporal punishment.94

(4) METHODS OF GRANTING BAIL

Where bail is granted, the same system applies as in the grant of bail pending trial. The accused
must enter into recognizances (or deposit a sum of money or other security) and may be required
to find sureties. The general conditions are that the applicant will, if such is the decision of the
High Court or Supreme Court, pay any fine imposed or surrender himself to undergo
imprisonment.95 A notice must be served on the applicant informing him of the relevant court’s
decision and stating the time within which and the person to whom either to pay the fine or
surrender himself. In addition, specific conditions may be imposed, such as surrender of travel
documents, reporting to the police, and so on.96

Part of the bail (whether recognizances or money deposited) may include the cost of service of
the notice.97

(5) PROCEDURE WHERE APPLICANT IN DEFAULT

If the applicant is in default of any of the conditions on which he was admitted to bail, a number
of steps must be taken. It will be noted that the procedure is different from that when default is
made in the conditions of bail pending trial.98

Firstly, information must be given in writing and on oath that the applicant has defaulted in any
of the bail conditions. Secondly, an application must be made by the Attorney-General to a judge
(if the conviction or sentence took place in the High Court) or by the local public prosecutor to a
magistrate (in any other case). The judge or magistrate may then —

• issue a warrant of arrest;

• issue an order calling on the applicant and his sureties (if any) to appear at the time and
place stated in the order to show cause why their recognizances should not be declared
forfeited; and

• declare the recognizances forfeit if cause is not shown to the judge or magistrate’s
satisfaction.

A declaration of forfeiture has the same effect as a civil judgment against the person concerned.99

(6) APPEAL AGAINST DECISION

(a) Appeal by accused

(i) Against decision of magistrate

95 CP&EA s 123(10). 96 CP&EA s 118(3)

97 CP&EA s 123(12). 98 See s 133 of the CP&EA
99 CP&EA s 123(13)(c). 100 CP&EA s 121(1)
6—20 Criminal Procedure in Zimbabwe

The accused has no right of appeal against a magistrate’s decision regarding bail pending appeal
or review.100 He is not, however, without remedy.

Where a magistrate makes a decision on an application for bail pending appeal (whether the
decision is to grant or to refuse bail), he must inform the accused that, if the accused feels aggrieved
by the magistrate’s decision, he may request the magistrate to send his decision for review by a
judge of the Supreme Court. If the accused does so request, the record of the bail proceedings
must be sent to the Supreme Court. The record must include the representations made by the
accused or his legal representative and the prosecutor, reasons for and comment on his decision
which the magistrate may wish to make, written statements or argument from the accused setting
out why he feels aggrieved and written replies thereto from the prosecutor. The matter will be
reviewed in chambers by a judge of the Supreme Court, who may allow further written or oral
argument or evidence to be given.

The judge may, where bail was refused, grant bail on such conditions as he thinks fit. Where bail
was granted, he may fix more favourable conditions than those imposed by the magistrate.101

The magistrate’s order is not suspended while the review takes place.102

There is no right of appeal or review against a magistrate’s decision on an application for bail
pending automatic review.103

No right of review lies where the appellant has been sentenced in respect of an offence specified
in the Fourth Schedule.104

(ii) Against decision of judge

The accused has the same right of appeal as he would against a judge’s decision on an application
for bail pending trial.105

(B) APPEAL BY ATTORNEY-GENERAL

The Attorney-General has the same right of appeal as he would in the case of the grant of bail
pending trial.106

1 CP&EA s 131 or 132.

2 CP&EA ss 116 and 123 and Eighth Schedule, which was added by s 27 of Act 1 of 1992.
3 See D M Proudhon “Unlocking police bail”, Legal Forum vol 3 no. 3 (1991) p 44.
4 CP&EA s 117(1).

5 CP&EA s 117(2).
6 This is in the plural because it is possible for a person to be convicted in the magistrates court and sentenced in the
101 CP&EA s 124.
102 CP&EA s 124(7).
103 CP&EA s 121(1).
104 These are all offences under the Law and Order (Maintenance) Act.
105 See section 2(10)(a)(ii), above.
106 See section 2(10)(b), above.
Bail 6—21

High Court.
7 High Court (Bail) Rules 1991 (SI 109/1991), r 5(1).
8 CP&EA s 116(1), proviso (ii).
9 HC(B)R, r 5(2).

10 HC(B)R, r 5(4).
11 CP&EA s 116(1)(a) and (b).
12 Minister van Wet en Orde en Andere v Dipper 1993 (3) SA 591; 1993 (2) SACR 221 (A); and see also S v Hlongwane
1989 (4) SA 79 (T), which seems to accept that the superior courts have an inherent common law power to grant bail.
13 CP&EA s 116(1)(b).
14 As amended by s 5 of Act 20 of 1994.

15 CP&EA s 116(1)(a).
16 CP&EA s 116(2).
17 Mutambara & Ors v Minister of Home Affairs 1989 (3) ZLR 96 (H).
18 See Chapter 5, above, under Remand.

19 CP&EA s 116(7).
20 Attorney-General v Phiri 1987 (2) ZLR 33 (H).
21 S v Chiadzwa 1988 (2) ZLR 19 (S); Attorney-General v Phiri 1987 (2) ZLR 33 (H); 1988 (2) SA 696 (ZH); Mutambara
& Ors v Minister of Home Affairs 1898 (3) ZLR 96 (H).
22 S v Hussey 1991 (2) ZLR 187 (S).

23 S v Chiadzwa 1988 (2) ZLR 19 (S).

24 Attorney-General v Blumears & Anor 1991 (1) ZLR 118 (S); Martin v Attorney-General & Anor 1993 (1) ZLR
153 (S).
25 The Minister of Home Affairs (s 2 of the Act).
26 CP&EA s 116(5), proviso.
27 CP&EA s 116(6).

28 The Minister of Home Affairs (GN 285/1980).

29 CP&EA s 116(2)(a).
30 Mutambara & Ors v Minister of Home Affairs 1989 (3) ZLR 96 (H); but compare the earlier case of Carvalho v
Minister of Home Affairs 1987 (2) ZLR 172 (H), where Sandura JP held that it was not necessary for the Minister to act
reasonably or comply with the audi alteram partem rule, provided that he acted bona fide. With respect, the reasoning in
Mutambara’s case is far more convincing and far more in keeping with a constitution in which basic rights are enunciated.
See also Moyakhe & Anor v Attorney-General, Transkei 1993 (3) SA 197 (Tk G), which upheld the requirement for the
audi alteram partem rule.
31 Fikilini v Attorney-General 1990 (1) ZLR 105 (S).
32 CP&EA s 116(3).
33 CP&EA s 116(4).

34 CP&EA s 118(1). 35 CP&EA s 131(1).

36 CP&EA s 125. 37 CP&EA s 130.
38 CP&EA s 128(3). 39 CP&EA s 129.
40 CP&EA s 128(4).

41 CP&EA s 118(2). 42 CP&EA s 118(3).

43 CP&EA s 120. 44 CP&EA s 126.
45 CP&EA s 119(2).
46 As to the meaning of this phrase, see Chapter 5 above.
47 CP&EA s 127(1).
48 CP&EA s 127(2).

49 CP&EA s 134.
50 There is no formal procedure laid down by the act or rules of court.
51 CP&EA s 121(1).
52 These are all offences under the Law and Order (Maintenance) Act.
53 CP&EA s 121(1), proviso. 54 See section 2(2)(i), above.
55 HC(B)R, r 6(1). 56 HC(B)R, r 6(2).
57 HC(B)R, r 6(4).
6—22 Criminal Procedure in Zimbabwe

58 CP&EA s 121(2).
59 MCA s 60.
60 SCA s 9(1); and see S v Tekere & Ors 1980 ZLR 441 (A). While an appeal used to lie against any order of the High
Court in a criminal case (S v Beahan (2) 1989 (1) ZLR 359 (H)), this would no longer appear to be the case, since the repeal
of s 44(1) of the HCA by s 2 of Act 30 of 1989.
61 HCA s 44(1); S v Chikumbirike 1986 (2) ZLR 145 (S).
62 HCA s 44(5). Again, this is not clear: the right of appeal only arises where a judge of the High Court has made an
interlocutory order or given an interlocutory judgment in relation to “any criminal proceedings before the High Court”. Is
a bail order an interlocutory order? Is a bail application “proceedings before the High Court”?
63 S v Hussey 1991 (1) ZLR 187 (S). The headnote to this case states, in part, that “an onus lies on an applicant [for bail]
to show … that his admission to bail would not prejudice the interests of justice”. It is submitted that the headnote is, in this
respect, misleading and that the true position is that in the first instance the onus is on the State to show why bail should not
be granted but only on appeal against a refusal to grant bail does the onus fall on the appellant.
64 Supreme Court (Bail) Rules 1991 (SI 290/1991) r 5(1).
65 SC(B)R r 5(2).
66 SC(B)R r 5(3).

67 SC(B)R r 5(4).
68 CP&EA s 122(1).
69 HCA s 44(6); Attorney-General v Mharapara 1986 (1) ZLR 19 (S).
70 CP&EA s 122(1).
71 If the accused has been out of custody until the time of sentence and is sentenced to a term of imprisonment, the term
of imprisonment begins immediately it is imposed, unless bail is granted. Accordingly, if the magistrate grants bail pending
appeal and the prosecutor notifies the magistrate that the Attorney-General’s decision is to be sought as to whether to
appeal against the grant of bail, it would appear that the accused must start serving his sentence.
72 CP&EA s 122(2).

73 HC(B)R r 7(1). 74 HC(B)R r 7(2).

75 HC(B)R r 7(3). 76 HC(B)R r 7(4).
77 HC(B)R r 7(5). 78 SC(B)R r 6(1).
79 See the comment which follows: the reference to a judge is clearly incorrect.

80 CP&EA s 123(1)(a).
81 CP&EA s 123(1), proviso (i).
82 CP&EA s 123(1), proviso (ii).
83 S v Kilpin 1978 RLR 282 (A).
84 S v Tengende & Ors 1981 ZLR 445 (S).

85 S v Williams 1980 ZLR 466 (A) at 468.

86 As to the principles governing the decision on whether there is a reasonable prospect of success on appeal, see R v
Muller 1957 (4) SA 642 (A) at 645; R v Kara 1961 (1) SA 116 (GW); and see Chapter 27, section 1, below.
87 S v Tengende supra; S v Benatar 1985 (2) ZLR 205 (H); S v Nyathi Juta SCD 1/1994 p 4 (NC).
88 CP&EA s 123(2), (3) and (4).
89 CP&EA s 123(5) and (6); and see above.
90 The CP&EA does not say so, but presumably this means that the accused would be incarcerated in a remand prison.
See s 123 (7).
91 CP&EA s 123(7), (8) and (9).
92 CP&EA s 123(8) and (9).
93 Presumably this means any fine imposed in addition to a sentence of imprisonment.
94 CP&EA s 123(7)(b).

95 CP&EA s 123(10). 96 CP&EA s 118(3)

97 CP&EA s 123(12). 98 See s 133 of the CP&EA
99 CP&EA s 123(13)(c). 100 CP&EA s 121(1)
101 CP&EA s 124.
102 CP&EA s 124(7).
103 CP&EA s 121(1).
104 These are all offences under the Law and Order (Maintenance) Act.
105 See section 2(10)(a)(ii), above.
106 See section 2(10)(b), above.
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