Gift Blessing v The State

The applicant was charged with murder as defined in s 47 of the Criminal Law Codification and Reform Act. On 2 February 2017 at about 2045 hours at Belvedere Shopping Centre, the applicant, who was heavily intoxicated, assaulted the deceased Zebediah Morris Matibvu by striking him on the head with a scrap pellet barrel, wooden stick, and a stone. The applicant accused the deceased of using 'mubobobo' (a form of witchcraft for non-consensual sexual intercourse) on his wife and demanded monetary compensation. When the deceased denied the allegations and refused to pay, the applicant assaulted him. Security guards intervened and rescued the deceased who was bleeding profusely from the head with swollen eyes. The deceased died on 6 February 2017 from complications of subdural haematoma and blunt force head injury. The applicant initially faced an attempted murder charge, which was altered to murder after the deceased's death. The applicant had no national registration document, no fixed abode, and persons at the address he provided (92 Zata Street, Mbare) denied knowing him and refused to accommodate him if granted bail.

• Whether the applicant established exceptional circumstances justifying bail for a Part II Third Schedule offence
• Whether the applicant satisfied the onus under s 115C(2)(ii)(B) of the Criminal Procedure and Evidence Act that it was in the interests of justice to grant bail
• The proper interpretation of s 50 of the Constitution of Zimbabwe in relation to bail applications - whether s 50(1)(d) or s 50(6) applies to persons detained pending trial after court appearance
• What constitutes 'exceptional circumstances' and 'interests of justice' in bail applications for Third Schedule offences
• Whether lack of national registration and fixed abode constitutes a compelling reason to deny bail

The application for bail was dismissed. The Registrar was directed to forward a copy of the judgment to the office of the Deputy Commissioner General of Police In-Charge of Crime to commend Assistant Inspector Mutemi Munyaradzi for his exemplary work.

1. Section 50(1)(d) of the Constitution applies to arrested persons detained by police pending their first court appearance within 48 hours, while s 50(6) applies to persons detained pending trial after appearing in court and must be read with ss 116 and 117 of the Criminal Procedure and Evidence Act. 2. For Part II Third Schedule offences, the applicant bears the onus to prove exceptional circumstances on a balance of probabilities to justify release in the interests of justice (s 115C(2)(ii)(B) of the Criminal Procedure and Evidence Act). 3. Exceptional circumstances cannot be defined in isolation from the relevant facts; courts must consider all relevant factors individually or cumulatively to determine whether circumstances sufficiently out of the ordinary exist to warrant release. 4. Compelling reasons for denying bail include: strong evidence of guilt, likelihood of absconding based on lack of identification documents and fixed abode, unemployment, and the prospect of a heavy sentence. 5. Lack of national registration rendering an accused untraceable constitutes a compelling reason to deny bail. 6. While seriousness of an offence alone does not justify denying bail, when combined with other compelling circumstances it may warrant denial.

The court made several non-binding observations: 1. It commended the work of Assistant Inspector Mutemi Munyaradzi for preparing a comprehensive affidavit, contrasting it with 'shoddily prepared police affidavits' typically encountered in bail court. 2. The court conducted research on the meaning of 'mubobobo,' explaining it as a Shona term describing a charm for non-consensual sexual intercourse, also called 'blue tooth sex' or 'wireless sex,' and noted it is demeaning and defamatory to accuse someone of using it. 3. The court noted it is a statutory requirement under the National Registration Act [Chapter 10:17] that every citizen, alien, or refugee should register for a national identity card from age 16, and observed that registration processes including fingerprinting serve important identification purposes. 4. The court expressed hope that the State would expedite the trial set-down as there appeared to be no difficult investigation remaining. 5. The court noted there appears to be confusion in interpreting constitutional provisions relating to bail applications, as previously observed in Vincent Kondo and Anor v State HH 99-17.

This case is significant for clarifying the constitutional and statutory framework for bail applications in Zimbabwe post-2013 Constitution. It distinguishes between s 50(1)(d) and s 50(6) of the Constitution, establishing that s 50(6) applies to persons detained pending trial after court appearance, not s 50(1)(d). The judgment provides authoritative guidance on interpreting 'exceptional circumstances' and 'interests of justice' for Third Schedule offences, adopting South African jurisprudence. It emphasizes that courts must consider all relevant factors cumulatively, and that Third Schedule offences require a flexible, case-by-case approach despite their serious nature. The case also highlights practical considerations such as the importance of national registration and fixed abode in assessing flight risk, contributing to the development of bail jurisprudence in Zimbabwe's constitutional democracy.