Munyaradzi Samu and Tendai Chauma v The State

The two applicants were arrested on 31 March 2021 and charged with contravening section 82(1) of Statutory Instrument 362/1990 read with section 128(1)(b) of the Parks and Wildlife Act for unlawful possession of unmarked raw ivory. They were found in possession of 2.45 kilograms of four unregistered or unmarked pieces of ivory valued at ZWL$34,569.00 at Mbare Musika, Harare. The ivory was stashed in a blue jean trouser inside a black and grey satchel. The applicants claimed they were given the bag by an unidentified person when boarding a vehicle to Harare with instructions to deliver it to someone named Tawanda in Mbare. They claimed they were told the bag contained pieces of wood for furniture manufacturing and were unaware it contained ivory. The offence attracts a minimum mandatory sentence of nine years imprisonment unless special circumstances exist. The Magistrates Court had no jurisdiction to grant bail as this was a Part I Third Schedule offence under section 115C(2)(a)(ii) of the Criminal Procedure and Evidence Act. The applicants applied for bail at the High Court.

• Whether the applicants discharged the onus of showing on a balance of probabilities that it was in the interests of justice to be released on bail in respect of a Part I Third Schedule offence
• The interpretation and application of section 115C(2)(a)(ii) and section 117(6)(a) of the Criminal Procedure and Evidence Act regarding bail for Third Schedule offences
• The relationship between section 50(1)(d) and section 50(6) of the Constitution regarding bail rights
• The standard of proof and evidence required from applicants seeking bail for serious offences carrying mandatory minimum sentences
• Whether the applicants' explanation for possession of the ivory raised a prima facie cognisable defence

The application for bail pending trial was dismissed.

For bail applications involving Part I Third Schedule offences under section 115C(2)(a)(ii) of the Criminal Procedure and Evidence Act, the applicant bears the burden of showing on a balance of probabilities that it is in the interests of justice to be released on bail. Section 117(6)(a) requires that the accused adduce evidence satisfying the court that exceptional circumstances exist which in the interests of justice permit release. Applicants must provide credible evidence, not mere unsworn statements, to discharge this burden. Where possession of contraband is established, applicants must provide a prima facie cognisable defence with an honest, detailed account that takes the court into their confidence rather than bare denials or improbable explanations. Section 50(1)(d) of the Constitution applies to arrestees before court appearance, while section 50(6) governs bail for persons detained pending trial, and the two provisions must be read harmoniously.

The court observed that the question of whether the transposition of the burden of proof in respect of bail applications involving Third Schedule offences is unconstitutional is an argument for another day, but for now it remains the law unless challenged. The court noted an apparent conflict in judgments of the High Court regarding the interpretation of section 50(1)(d) and section 50(6) of the Constitution and suggested this conflict may need to be resolved through a judgment specifically addressing this issue. The court associated itself with the approach in Kondo & Another v State over other conflicting High Court judgments. The court also observed that the Third Schedule offences by their nature attract long periods of imprisonment, and the shifting of onus was deliberate, with the general approach being to deny bail unless the applicant demonstrates it is in the interests of justice to grant it.

This Zimbabwean High Court judgment is significant for its interpretation of the bail regime under Part IX of the Criminal Procedure and Evidence Act, particularly regarding Third Schedule offences. The case clarifies the heavy burden on applicants seeking bail for serious offences carrying mandatory minimum sentences and the standard of evidence required. It provides guidance on the relationship between constitutional bail rights under section 50 of the Constitution and the statutory bail regime. The judgment emphasizes that the right to liberty is not absolute and that Third Schedule bail applications are sui generis requiring exceptional circumstances to be demonstrated. It also provides important guidance on possession offences and the distinction between the mental element for possession and mens rea. While this is a Zimbabwean case, it may have persuasive value in South African jurisprudence on similar bail and criminal procedure issues.