Elias Mutonya v The State

On 28 August 2025, the applicant was arraigned before the Magistrates Court at Bindura, charged with robbery as defined in section 126 of the Criminal Law (Codification and Reform) Act, together with three co-accused persons. The allegations were that in May 2025, the applicant, who worked as a security guard at an Econet Wireless shop in Mvurwi, hatched a plan with his brother-in-law, Rashid Adam Chipanga (still at large), to rob the shop. The applicant allegedly supplied information about a large sum of money stored at the shop and the security arrangements. On 8 May 2025, Rashid and the three co-accused persons, armed with a pistol, iron bars and tyre cables, stormed the shop, assaulted and tied up a security guard, and stole US$55,000 cash, 32 cellphones, 2 wifi routers and 1 laptop. The applicant applied for bail pending trial before the High Court. He filed a bail statement supported by an affidavit from his brother confirming his residential address, but did not adduce any evidence himself either orally or by affidavit. He did not challenge his placement on remand. The State opposed the application on grounds of risk of abscondment and danger to society.

• Whether the applicant discharged the onus of showing on a balance of probabilities that it is in the interests of justice that he be released on bail, where he is charged with a Part I Third Schedule offence (robbery involving use of a firearm)
• Whether submissions in a bail statement or oral submissions from counsel constitute evidence sufficient to discharge the evidential burden in a bail application
• What factors must be considered in assessing the risk of abscondment
• Whether the applicant constitutes a flight risk and a danger to public safety

The application for bail pending trial was dismissed.

In bail applications involving Part I Third Schedule offences (such as robbery involving use of a firearm), the accused bears the evidential burden 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. This burden can only be discharged by adducing actual evidence, either through oral testimony under oath or by affidavit. Submissions contained in a bail statement or oral submissions from counsel do not constitute evidence and are insufficient to discharge this burden. Where an accused acquiesces to being placed on remand without challenging it, this constitutes an admission that there is reasonable suspicion that he committed the offence, and the accused cannot subsequently dispute the factual allegations in bail proceedings. The failure to adduce evidence to discharge the evidential burden is fatal to a bail application.

The court observed that there is an inappropriate trend where numerous witnesses are called to testify in bail proceedings, which threatens to turn bail applications into trial proceedings. Bail proceedings are written applications which should be dealt with on the papers. The real opportunity to deal with disputed facts avails itself to an accused at the remand stage, not at the bail stage. The court also noted that ignorance of the law (including procedural requirements for challenging placement on remand) is not an excuse. The court took judicial notice of the rise in offences of robbery involving firearms in Zimbabwe. The court reaffirmed that while the seriousness of an offence alone is not sufficient to justify refusing bail, it becomes a significant factor when considered together with other circumstances such as likelihood of a severe sentence, strength of the prosecution's case, and risk of abscondment.

This case reinforces important principles in Zimbabwean criminal procedure regarding bail applications for Third Schedule offences. It emphasizes that: (1) The evidential burden on an accused charged with a Part I Third Schedule offence cannot be discharged through mere submissions in a bail statement or oral submissions from counsel - actual evidence must be adduced either orally under oath or by affidavit; (2) An accused person's failure to challenge placement on remand constitutes an admission that there is reasonable suspicion of guilt, and the accused cannot subsequently challenge the factual allegations in bail proceedings; (3) The court must consider multiple factors together when assessing flight risk, including the seriousness of the offence, likely sentence, strength of the State's case, ties to the jurisdiction, and adequacy of proposed bail conditions; (4) The constitutional presumption of innocence must be balanced against the interests of justice and the administration of justice. The judgment demonstrates the high threshold that must be met for bail in serious criminal matters and the procedural requirements that must be strictly followed.