Laimon Nyoni and Others v The State

On 23 February 2018, the three applicants were arrested along the Bulawayo-Gwanda Road near Umguza bridge following a tip-off. Police searched a Toyota Corolla Sprinter driven by the first applicant and recovered a black bag containing 2 ivory tusks from the boot. The second and third applicants were passengers in the vehicle. The tusks were examined by officials from the Department of Parks and Wildlife Management who confirmed they were unmarked, unregistered elephant tusks weighing 9kg and valued at US$2,250. The applicants were charged with contravening section 82(1) of Statutory Instrument 362/90 as read with section 128(1)(b) of the Parks and Wildlife Act Chapter 20:11, being found in possession of raw unmarked ivory without a licence or permit. The applicants claimed they did not know about the ivory, alleging it belonged to an unidentified 'khaki man' who fled when police arrived. The first applicant claimed to be a fish monger, the second an unemployed single mother who vended goods, and the third a bus driver.

• Whether the applicants discharged the burden of proving on a balance of probabilities that it is in the interests of justice for them to be released on bail
• Whether there were compelling reasons justifying the applicants' continued detention
• The application of section 115C(2)(ii)(A) of the Criminal Procedure and Evidence Act in relation to offences listed in Part 1 of the Third Schedule
• Assessment of risk of abscondment given the serious nature of the offence and mandatory minimum sentence
• Whether the state's prima facie case was sufficiently strong to justify refusal of bail

The application for bail was dismissed.

Where an accused person is charged with an offence listed in Part 1 of the Third Schedule to the Criminal Procedure and Evidence Act (including offences under section 128 of the Parks and Wildlife Act), the accused bears the burden of proving on a balance of probabilities that it is in the interests of justice for him or her to be released on bail. In assessing the risk of abscondment, the court must consider: (i) the nature of the charges; (ii) the severity of the punishment likely to be imposed upon conviction; and (iii) the apparent strength of the state's case. Where a mandatory minimum sentence of 9 years imprisonment applies, this creates a strong inducement to abscond. An applicant who provides false information regarding material facts (such as residential address) and advances an implausible defence fails to discharge the burden of proving it is in the interests of justice to grant bail.

The court expressed concern about the recurring pattern in bail applications involving contraband where accused persons fabricate stories about mysterious unidentified persons who flee when police arrive, describing such defences as 'unhelpful' works of 'popular fiction'. The court noted the mysterious circumstance of why police would fail to arrest the alleged 'khaki man' if he existed, suggesting that arresting officers acting on information from an informer would have arrested him had he been real. The court also commented on the implausibility that passengers unknown to each other would coincidentally be in the same vehicle carrying contraband, particularly where evidence suggested prior relationships between co-accused.

This case demonstrates the application of Zimbabwe's reversed onus provisions for bail applications involving serious scheduled offences, particularly wildlife crimes. It illustrates the courts' approach to assessing credibility in bail applications and the high threshold applicants must meet when charged with offences carrying mandatory minimum sentences. The judgment reinforces the principle that courts will carefully scrutinize defences that appear implausible and that dishonesty regarding material facts (such as residential address) will be held against an applicant. It also shows judicial concern about wildlife crime, particularly ivory trafficking, and the application of stringent bail conditions to such offences.