Bekezela Lizile Moyo v The State

The applicant and three co-accused (Bongani Sicelo Mbambo, Everton Khupe, and Mandlenkosi Gumisayi) were charged with aggravated armed robbery in violation of Section 126 of the Criminal Law (Codification and Reform) Act. On 27 March 2010, the complainant received a call from mobile number 0912 861 368 inquiring when he would arrive at his office. At 11:40 hours, robbers raided the office and specifically demanded to be shown two safes, from which they stole cash and valuables. The call was traced to the applicant's mobile phone. The applicant was arrested on 15 May 2010 at a house in Avondale Mews, Harare, having apparently relocated after the offence. His co-accused Mbambo was arrested in Malbereign, Harare and led police to the applicant. Both then directed police to Sloane Lodge where Khupe and Gumisayi, who had arrived from South Africa, were arrested. Fingerprints from the crime scene matched Khupe's, and both Khupe and Gumisayi were positively identified by complainants in an identification parade. The applicant and Mbambo's indications led to recovery of stolen items including a cordless handset and the Mazda 323 getaway vehicle.

• Whether the applicant should be granted bail
• Whether the risk of absconding was sufficiently high to deny bail
• Whether the strength of evidence against the accused justified refusal of bail
• The relevance of alleged torture to the bail application

The application for bail was dismissed.

In bail proceedings under Section 117 of the Criminal Procedure and Evidence Act, the court must balance the protection of individual liberty against the administration of justice. The determination of whether confessions were obtained through torture is a matter for trial, not for bail proceedings. Where evidence against an accused is very strong and the offence is serious (such as aggravated armed robbery) carrying a lengthy potential sentence, there is a substantial risk of absconding that justifies refusal of bail. Conduct suggesting flight from justice, such as relocation after commission of the offence, is a relevant factor indicating risk of absconding. The usual barometer to determine probability of absconding is whether, owing to the strength of evidence against the accused, he is likely to abscond.

The court observed that since investigations were complete, the applicant should be agitating for his trial date to enable him to prove his innocence. The court noted prima facie the applicant may have been assaulted based on the medical evidence, but emphasized this was not the proper forum to determine that issue. The court commented that it was "probably fortuitous" that two co-accused who had relocated to South Africa were cornered at a lodge in Harare.

This case demonstrates the Zimbabwean High Court's approach to bail applications in serious criminal cases, particularly armed robbery. It illustrates that: (1) allegations of torture and assault during police interrogation, while potentially relevant to admissibility of evidence at trial, are not determinative in bail proceedings; (2) the court applies a balancing test between individual liberty and administration of justice; (3) the strength of evidence against an accused and the gravity of potential sentence are key factors in assessing risk of absconding; (4) conduct suggesting flight from justice (such as relocation after the offence) weighs heavily against granting bail. The case also clarifies the separation between bail proceedings and trial proceedings - issues of admissibility of evidence are reserved for trial.