Godfrey Josi and Andrew Nyamutowa and Prince Nyamhanza v The State

On 9 June 2025, the three applicants allegedly went to the complainant's premises in Eastley suburb of Harare, armed with pistols and a rifle, in the company of other accomplices still at large. They allegedly manhandled two complainants, tied their hands with shoelaces, broke a safe using a grinder and stole US$100,000 and other items including a Wemblen revolver. They fled when a Fawcett reaction team arrived. The applicants were arrested and charged with robbery as defined in s 126 of the Criminal Law (Codification and Reform) Act. The State initially relied on CCTV footage allegedly showing the first applicant at the crime scene, and claimed the first applicant had implicated the others. No property was recovered from any applicant. The investigating officer's evidence revealed the CCTV footage was not conclusive (showing a masked person) and had been sent to the Cyber Laboratory for analysis. The State's claims about pending cases were disproved - further remand had been refused for the second applicant and the third applicant had been acquitted in other matters.

• Whether the applicants should be granted bail pending trial on charges of armed robbery under s 126 of the Criminal Law (Codification and Reform) Act
• Whether the State established compelling reasons justifying the applicants' continued detention
• The application of the reversed onus of proof in respect of Third Schedule offences under s 115C(2)(a)(ii) of the Criminal Procedure and Evidence Act
• Whether the applicants discharged the onus of showing it was in the interests of justice to be released on bail
• The strength of the prima facie case against the applicants and its relevance to bail determination

The application for bail pending trial was granted. Each applicant was ordered to: (1) deposit bail of USD$100.00 at the prevailing bank rate with the Clerk of Court at Harare Magistrates' Court; (2) reside at specified addresses (first and second applicants at House No.188317 Unit L Extension, Chitungwiza; third applicant at House No. 143 Domboramwari Extension, Epworth, Harare); (3) not interfere with investigations and prosecution witnesses; and (4) report to designated police stations (first and second applicants at Chitungwiza Police Station, third applicant at Epworth Police Station) every Friday between 6am and 6pm until the matter is finalized.

In bail applications for Third Schedule Part I offences under s 115C(2)(a)(ii)(A) of the Criminal Procedure and Evidence Act, the accused bears the onus of showing, on a balance of probabilities, that it is in the interests of justice to be released on bail. This onus must be discharged by adducing evidence (by affidavit or oral testimony), not merely by submissions. Where accused persons adduce evidence controverting the State's allegations, and the State fails to establish a prima facie case linking the accused to the offence (such as where no property is recovered, CCTV evidence is inconclusive, and alleged confessions are disputed), the accused will have discharged their onus. The constitutional right to bail under s 50(1) of the Constitution requires that persons arrested must be released unless there are compelling reasons justifying continued detention. Even in serious offences like armed robbery, the weakness of the prima facie case is a critical factor in bail determination. The State must substantiate allegations with credible evidence to justify opposing bail, and the seriousness of charges alone is insufficient to deny bail when the State's case is demonstrably weak.

The court made important observations about the broader implications for the criminal justice system. MANYANGADZE J emphasized that society rightly expects protection from the criminal justice system even at the pre-trial stage, particularly in violent offences like armed robbery which involve brazen invasions of privacy and leave victims traumatized. However, such protection can only be justified when a prima facie case is established. The court stressed the imperative for investigating officers to present prosecutors with information constituting a strong prima facie case, particularly in violent offences posing great risk to life. The court warned that the criminal justice system will be seriously undermined if accused persons arrested for grave crimes are routinely released on bail because the State failed to substantiate the information on the Request for Remand Form (Form 242). The judge expressed concern about the 'unfortunate scenario' where grave allegations of armed robbery are made but the facts placed before court cannot support opposition to bail, forcing the State to concede. This represents a systemic failure in investigation and prosecution that undermines public confidence in the administration of justice.

This case illustrates the application of Zimbabwe's constitutional and statutory bail framework, particularly in Third Schedule offences where the onus is reversed. It emphasizes that even in serious violent crimes like armed robbery, the State must present a strong prima facie case to justify denying bail. The judgment highlights the importance of proper investigation and evidence gathering before arrest and remand, and criticizes the practice of arresting suspects without adequate evidence to substantiate charges. The case demonstrates that the seriousness of charges alone is insufficient to deny bail when the State's case is weak. It reinforces that bail applicants charged with Third Schedule offences must adduce evidence (not mere submissions) to discharge their onus, but when they do so and the State's case is demonstrably weak, bail should be granted. The judgment serves as a reminder to investigating officers and prosecutors of their duty to present substantiated cases to justify continued detention, particularly in violent crimes where public safety concerns are paramount.