Christopher Moyo and Mayibongwe Ncube and Thando Masilela v The State

### Preamble
1
HB298/20
HCB 338/20
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CHRISTOPHER MOYO

And

MAYIBONGWE NCUBE

And

THANDO MASILELA

Versus

THE STATE

HIGH COURT OF ZIMBABWE

MAKONESE J

BULAWAYO 26 NOVEMBER AND 17 DECEMBER 2020

Bail Application

T M Nyathi, for the applicant

K Jaravaza, for the respondent

MAKONESE J:	This is an application for bail pending trial.  The accused persons are facing murder allegations in contravention of section 47 (1) (a) of the Criminal Law (Codification Reform) Act (Chapter 9:23).  The applicants deny the allegations.  The brief allegations are that on 5th November 2020 around 0300 hours at Gwanda, applicants acting in common purpose assaulted the deceased, Prince Mkhululi Moyo, aged 22 years, several times on the head and shoulder, stabbed him once on the head, under the ear, once on the back and seven times on the right leg.  The deceased succumbed from injuries sustained in the assault.  It is alleged that applicants fled from the scene after the assault.  They were later apprehended at their places of residences.

The state opposed the granting of bail on two grounds:

(a)	applicants are a flight risk

(b)	applicants are likely to interfere with witnesses.

On 26th November 2020 I heard oral argument in this matter.  I directed the Investigating Officer to file supplementary affidavits clarifying how the applicants are linked to the offence.  I also requested further explanations on how the knife allegedly used in the offence was recovered, amongst other issues.  I now have before me the initial affidavit filed by the Investigating Officer Edmond Zhou dated 13th November 2020 and a further sworn statement dated 3rd December 2020.  I have examined both sworn statements and note that the reasons for opposing bail have been reproduced and basically the same.  The grounds for opposing bail are listed as follows:

“1.	If granted bail the accused persons are likely to interfere with state witnesses as they leave in the same area.

2.	The weapons which were used by the accused are yet to be recovered and if granted bail he is likely to dispose of the weapons.

3.	The other accomplice is still at large and if granted bail he is likely to team up with them and commit other offences.

4.	If granted bail the accused persons are likely to escape to other countries.

5.	Since the accused are facing a serious offence which is likely to attract capital punishment or a long jail sentence and with this knowledge in mind the accused is likely to abscond court if released on bail.

6.	The accused persons committed a very serious offence of concern in the community and if released the relatives are likely to revenge.

7.	One of the accused persons Mayibongwe Ncube has a pending assault (Ref Gwanda Urban CR 17/11/2020)”

These are the expanded grounds for opposing bail as laid out by the Investigating Officer.  After seeking clarification from the state the Investigating Officer filed a further affidavit dated 3rd December 2020.  In that deposition, the only addition to the grounds for opposing bail is that:

“There are witnesses who actually saw the accused persons assaulting the deceased and statements are yet to be recorded.”

It seems to me that the Investigating Officer’s assertion that statements are yet to be recorded from witnesses almost one month after the offence was committed suggests that the state has not yet secured sufficient evidence against the applicants.  It is improper for this court to deny applicants bail in order to enable the state to build its case against the applicants.  It is the hallmark of our criminal justice system that an accused in a criminal case is deemed innocent until proven guilty.  It is not in the interests of justice to keep an accused in detention for the sole purpose of affording the state to secure time to gather evidence to sustain its case.

The primary consideration in a bail application is to assess from the information placed before the court whether the release of the accused will prejudice the due administration of justice.  In each particular case, the court is enjoined to balance the interests of the applicant and those of the state.

In State v Makamba 2004 (1) ZLR 367, the court held that an applicant can discharge his onus by either denying the allegations or telling the court such information as would 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 to abscond.  The state alleges that there is a strong prima facie case against the applicants.  This is not borne out by the sworn statements of the Investigating Officer.  Applicants deny assaulting the deceased in the manner alleged.  They indicate in their bail statement that the deceased was assaulted by a group of persons led by one Godknows Dube.

In my view, the fact that the state has not placed any information before the court establishing a strong prima fcaie case against the applicants must result in the court leaning in favour of the liberty of the applicants.  Bail is a right.  By it, any person arrested on suspicion of having committed an offence secures his liberty and continues to enjoy his freedom pending trial.  This right is guaranteed by section 50 (d) of the Constitution of Zimbabwe (Amend 20), 2013 which provides that:

“1.	Any person who is arrested –

…

(d)	must be released unconditionally or on reasonable conditions, pending a charge or trial, unless there are compelling reasons justifying their continued detention …”

I have not been able to find any compelling reasons that would justify the continued detention of the applicants pending their trial.  I am satisfied that adequate conditions may be imposed to allow the granting of bail.

In the circumstances, and accordingly the application is hereby granted in terms of the draft order.

Masawi and Partners, applicant’s legal practitioners

National Prosecuting Authority, respondent’s legal practitioners