Godfrey Mavhurafero v The State

The applicant, Godfrey Mavhurafero, residing at 10248 Cowdray Park Bulawayo, was arrested on 22 May 2016 on allegations of murder. He was jointly charged with Artwell Ndiweni, Dumisani Ncube, and Mgcini Xaba in connection with the death of Shingai Dhliwayo. The deceased was allegedly lured to Botswana on 30 April 2016 on the pretext of hiring her decoration and catering company for a wedding. She was robbed of her valuables (cash, laptop, Samsung tablet, and ZTE cellphone) before being killed and her body left tied to a tree in Tshesebe, Botswana. Her body was discovered on 7 May 2016, with a post-mortem concluding death by strangulation and gagging. Artwell Ndiweni was found in possession of items belonging to the deceased. The applicant claimed he was arrested only because police came looking for Mgcini Xaba, whom he had hired as a builder. The applicant had no previous convictions, no pending cases, no passport, and nothing belonging to the deceased was found in his possession. Co-accused Mgcini Xaba had already been granted bail by the High Court.

• Whether the applicant should be admitted to bail pending trial
• Whether there were compelling reasons justifying the applicant's continued detention under section 50(1)(d) of the Constitution
• What constitutes sufficient evidence to deny bail in a serious criminal matter
• The application of the constitutional right to bail

The applicant was admitted to bail pending trial on the following conditions: 1) Deposit of US$150.00 with the Registrar of the High Court Bulawayo; 2) Reside at 10248 Cowdray Park Bulawayo until finalization of the matter; 3) Report every Monday and Friday at Luveve Police Station between 6am and 6pm; 4) Not interfere with witnesses in the matter.

An arrested person is entitled as of right under section 50(1)(d) of the Constitution to be released either unconditionally or on reasonable conditions pending trial. Bail can only be denied where compelling reasons justifying continued detention are shown. The seriousness of an offence alone is not a good ground for denying bail - it is only where the seriousness is coupled with the apparent strength of the state's case that bail may be denied. Allegations by investigating officers regarding an accused's criminal history or previous arrests must be supported by concrete evidence of convictions or pending cases; bold assertions without evidentiary foundation are insufficient. Where there is no evidence linking an accused to the offence charged, and co-accused persons with stronger evidence against them have been granted bail, there is no sustainable basis for denying bail to the accused.

The court observed that it was "remarkable" that the confession by co-accused Dumisani Ncube made no mention of the applicant. The court noted it was "surprising that the state has seen it fit to oppose the application" given the complete absence of evidence linking the applicant to the offence. The court commented that the investigating officer "was not being truthful" when alleging that Artwell Ndiweni had implicated the applicant. The court characterized the applicant's arrest as appearing to be "some kind of a fishing expedition" after police could not find Mgcini Xaba. The court also noted the state's opposing papers were "significant not only by their brevity, being merely one rumbling paragraph, but also by a signal failure to take up the applicant's challenge" regarding previous convictions.

This case reinforces the constitutional right to bail under section 50(1)(d) of the Zimbabwean Constitution, establishing that the default position is release pending trial unless compelling reasons justify detention. It demonstrates that mere seriousness of the offence is insufficient to deny bail - there must be compelling reasons supported by evidence. The case emphasizes that claims by investigating officers regarding an accused's criminal history must be substantiated with concrete evidence of previous convictions or pending cases. It also illustrates the principle of consistency in bail decisions among co-accused, particularly where one co-accused with stronger evidence against them has been granted bail. The judgment highlights the importance of actual evidence linking an accused to an offence rather than mere assertions or suspicions by investigating officers.