Morris Ndou and David Mashava v The State

The two applicants were intercepted by police on 29 March 2017 at about 1600 hours along the Zvishavane-Mbalabala road while driving a South African registered Toyota Prado motor vehicle (registration number CY 67121) belonging to Latib Abdul Dawood of Lindeni, South Africa. The motor vehicle had been reported stolen at Lindeni Police Station in South Africa and was smuggled through the Zimbabwe-South Africa border. The applicants were charged with two counts: theft of a motor vehicle in contravention of s113 of the Criminal Law (Codification and Reform) Act and smuggling in contravention of s182(1)(a) of the Customs and Excise Act. They appeared before a magistrate at Zvishavane on 31 March 2017 and were remanded in custody to 13 April 2017. The applicants claimed they were hired to take the motor vehicle from Beitbridge to Harare for a fee of R3000-00, with the first applicant employing the second applicant as driver. However, they failed to provide satisfactory explanation for being on the Zvishavane-Mbalabala road (heading south, away from Harare) or to identify who hired them.

• Whether the applicants were entitled to bail pending trial under the Constitution of Zimbabwe s50(1)(d)
• Whether s117 of the Criminal Procedure and Evidence Act had been rendered dysfunctional by the constitutional provisions on bail
• Whether the burden of proof in bail applications lay with the state or the accused persons
• The effect and application of the new s115C of the Criminal Procedure and Evidence Act introduced by the Criminal Procedure and Evidence Amendment Act No 2 of 2016
• Whether exceptional circumstances existed to warrant the release of the applicants on bail in respect of offences listed in the Third Schedule

The bail application was dismissed.

The binding legal principles established are: (1) Section 115C of the Criminal Procedure and Evidence Act, introduced by the Criminal Procedure and Evidence Amendment Act No 2 of 2016, governs bail applications and qualifies the constitutional right to bail in s50(1)(d) of the Constitution; (2) The grounds for refusal of bail set out in s117(2) are to be considered as compelling reasons for denial of bail; (3) For offences listed in Part II of the Third Schedule (including theft of motor vehicles as defined in s2 of the Road Traffic Act), the burden rests on the accused to show, on a balance of probabilities, that exceptional circumstances exist which in the interests of justice permit release on bail; (4) In cross-border offences, courts must consider the time required for police to complete investigations across jurisdictions and the flight risk posed by accused persons who have demonstrated ability to cross borders; (5) Applicants for bail must take the court into their confidence on all material aspects of the case and provide meaningful explanations for their possession of allegedly stolen property.

The court made several non-binding observations: (1) While maintaining the correctness of the statutory interpretation in S v Munsaka HB 55-16 at the time it was delivered, the court noted that the legislature had moved quickly to introduce s115C specifically to depart from that interpretation in respect of certain specified offences; (2) The court expressly stated that the question of whether the new provisions of s115C are in sync with the new constitutional order was not before it and did not pronounce on the constitutionality of the legislative intervention; (3) The court observed that the applicants' explanation (that they were hired by unknown people who paid them on the spot and then abandoned them at a roadblock) was highly suspicious and, if that was their defence at trial, they would be 'in serious trouble' as it underscored the strength of the state case; (4) The court commented that it would be 'the height of irresponsibility' to admit the applicants to bail at such an early stage (less than three weeks after arrest) given the cross-border nature of the offence.

This case is significant in Zimbabwean criminal procedure law as it clarifies the post-constitutional position on bail applications following legislative intervention. It demonstrates how the legislature responded to judicial interpretation of constitutional bail rights by introducing s115C to qualify the automatic entitlement to bail established in s50(1)(d) of the Constitution. The judgment illustrates the current legal position that while the Constitution establishes a general right to bail unless compelling reasons exist for detention, the burden of proof varies depending on the seriousness of the offence. For serious offences listed in the Third Schedule (including motor vehicle theft), accused persons must demonstrate exceptional circumstances warranting bail, effectively maintaining the pre-constitutional position for such offences. The case also provides guidance on what constitutes inadequate disclosure in bail applications and the factors courts consider in cross-border criminal cases.