Brandon Isheanesu Gumbo Gutu v The State

On 16 October 2021, the applicant and accomplices allegedly proceeded to complainants' residences armed with an unregistered Taurus pistol and machetes. They forced entry, demanded money at gunpoint, and assaulted complainant with the pistol butt. They stole ZAR 130,000 from Lawrence Malamba, USD 40,000 and a Samsung cellphone from Agrippa Ncube, and tied up victims with shoelaces. Applicant and co-accused were later arrested at a police roadblock in Zvishavane while driving a motor vehicle. Upon search, a bag containing firearms was found. A firearm, machete, and stolen property were recovered. Applicant attempted to flee from police before arrest. He was charged with robbery as defined in section 126 of the Criminal Law (Codification and Reform) Act, a Part 1 Schedule 3 offence. Applicant had other pending armed robbery cases. His co-accused had been released on bail and convicted of possession of firearms without a licence.

• Whether the applicant discharged the onus under section 115C(2)(a)(ii)(A) of the Criminal Procedure and Evidence Act to show on a balance of probabilities that it is in the interests of justice to be released on bail
• Whether exceptional circumstances exist which in the interests of justice permit the applicant's release on bail for a Part 1 Schedule 3 offence
• Whether evidence must be adduced by affidavit or oral testimony, or whether submissions in a bail statement suffice to discharge the onus
• Whether the release of a co-accused on bail requires the same treatment for the applicant
• Whether section 50(1)(d) of the Constitution displaces the reversed onus provisions in the Criminal Procedure and Evidence Act for Schedule 3 offences
• Whether the applicant is a flight risk given the strength of the State's case and the likely sentence upon conviction

The application for bail pending trial was dismissed. The applicant was ordered to remain in custody.

For offences listed in Part 1 of Schedule 3 of the Criminal Procedure and Evidence Act (including robbery involving use of a firearm), the applicant bears the onus under section 115C(2)(a)(ii)(A) and section 117(6) to adduce evidence on a balance of probabilities showing that exceptional circumstances exist which in the interests of justice permit release on bail. This evidentiary burden cannot be discharged by mere submissions contained in a bail statement; the applicant must adduce actual evidence either by affidavit or oral testimony. The provisions of the Criminal Procedure and Evidence Act that reverse the bail onus remain valid and enforceable based on the principle of presumption of constitutional validity until such time as they are declared constitutionally invalid by a competent court through proper constitutional procedure. Until declared invalid, courts must give full effect to these provisions notwithstanding section 50(1)(d) of the Constitution.

The court observed that the argument that an applicant must be released on bail because a co-accused was released is made far too often in bail applications. The court noted that such fact standing alone does not tilt the balance in favour of releasing an applicant on bail, particularly where the applicant has not discharged the statutory onus. The court also commented that while the applicant disputed the voluntariness of his warned and cautioned statement, that issue could be dealt with at trial, but for bail purposes the court would factor the statement into assessing the strength of the State's prima facie case. The court observed that releasing the applicant on bail given the serious allegations of use of a firearm in armed robbery would undermine the objective and proper functioning of the criminal justice system and the bail institution.

This case is significant in Zimbabwean criminal procedure law as it clarifies several important principles regarding bail applications for Schedule 3 offences: (1) It confirms that the reversed onus provisions in the Criminal Procedure and Evidence Act remain valid and enforceable despite constitutional bail provisions, applying the principle of presumption of constitutional validity; (2) It establishes that the evidentiary burden for Schedule 3 offences cannot be discharged by mere submissions in a bail statement but requires actual evidence by affidavit or oral testimony; (3) It confirms that the release of a co-accused on bail does not automatically entitle an applicant to bail where the applicant has failed to discharge the statutory onus; (4) It demonstrates the application of the test for exceptional circumstances and interests of justice in serious offences involving firearms; (5) It illustrates how flight risk is assessed in the context of strong prima facie evidence and likely severe sentences.