Kholwani Donga v The State

On 9 February 2021 at approximately 01:00 hours, the applicant allegedly proceeded to the complainant's homestead where he sprinkled inflammable liquid around a three-bedroomed house and set it on fire. Inside the house were 7 occupants sleeping in different rooms. One occupant, Robert Donga (75 years old), was seriously burnt and died the following day. The other six occupants, aged between 7 and 51 years, escaped from the fire. The applicant was charged with one count of murder and six counts of attempted murder. A witness, Ayanda Donga, allegedly saw and spoke to the applicant at the scene before he disappeared into the darkness. The applicant claimed he was sleeping at his homestead in Lupane and only learned of the fire the following morning. The applicant resided in South Africa and had come to Zimbabwe in January 2021 to attend his father's funeral. He resisted arrest and was subdued by six police officers.

• Whether the applicant should be granted bail pending trial under section 50(1)(d) of the Constitution of Zimbabwe Amendment (No. 20) Act 2013
• Whether there were compelling reasons justifying the applicant's continued detention
• Whether the applicant was likely to abscond if released on bail
• Whether the applicant was likely to interfere with or intimidate witnesses
• Whether the strength of the State's case and the gravity of the offences created sufficient grounds to refuse bail

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

The binding legal principles established are: (1) Under section 50(1)(d) of the Constitution of Zimbabwe, an accused person has a fundamental right to be released pending trial unless there are compelling reasons justifying further detention; (2) Compelling reasons for detention are established when any of the grounds in section 117(2) of the Criminal Procedure and Evidence Act are satisfied; (3) In determining whether to grant bail, the court must balance the interests of justice against the right of the accused to personal freedom; (4) A likelihood that the accused will not stand trial (flight risk) is established by considering: the nature and gravity of the offence and likely penalty, the strength of the prosecution's case, the accused's ties to the place of trial, the location of the accused's assets, means of travel and possession of travel documents, and the accused's residential connections to foreign jurisdictions; (5) Where an accused resides in a foreign country, has weak ties to Zimbabwe, faces very serious charges with strong evidence against them, and has access to porous borders, there is a compelling reason to refuse bail based on flight risk; (6) An applicant's failure to disclose material information in a bail application can be used as an adverse inference confirming the State's allegations.

The court made several non-binding observations: (1) That pre-trial incarceration presents a special problem in the criminal justice system because the accused is deprived of liberty while the presumption of innocence operates in their favour; (2) That the ideal situation is that pre-trial liberty should be the norm and pre-trial release should be refused only where the accused will not stand trial or would interfere with the administration of justice; (3) That it is a notorious fact that the Zimbabwe-South Africa border is porous, making surrender of passports an ineffective condition in some cases; (4) The court cited Dow Discretionary Justice (1981) regarding the incredible lapse of time between arrest and trial caused by congested court rolls and police investigations; (5) The court observed that the witness Ayanda Donga appeared credible because she did not claim to have seen the applicant torching the house, but only saw him at the scene; (6) The court noted that evidence of a single witness may be sufficient to sustain a conviction for murder or attempted murder under section 269 of the Criminal Procedure and Evidence Act, citing S v Mokoena 1932 OPD 79.

This case demonstrates the Zimbabwean courts' approach to balancing constitutional bail rights under section 50(1)(d) of the Constitution with the interests of justice under section 117 of the Criminal Procedure and Evidence Act. It illustrates that while bail is a fundamental constitutional right, it is not absolute and can be refused where compelling reasons exist. The case is significant for establishing that: (1) the seriousness of offences alone is insufficient to deny bail, but when combined with other factors such as flight risk and strength of the State's case, can constitute compelling reasons for detention; (2) cross-border residency and foreign connections are highly relevant factors in assessing flight risk; (3) an applicant's failure to disclose material information can be used against them in bail applications; (4) the offer to surrender travel documents may be insufficient to allay flight risk concerns where borders are porous; (5) evidence of a single witness may constitute a strong case for the prosecution under section 269 of the Criminal Procedure and Evidence Act. The judgment reinforces that the constitutional right to bail must be assessed contextually, considering all circumstances of the case.