Norest Trinity Kufa v The State

The applicant, a 39-year-old woman, was arrested and charged with three counts of robbery in aggravated circumstances involving the use of a firearm and theft of motor vehicles, in contravention of s126 of the Criminal Law (Codification and Reform) Act. The offences fell under Part I of the Third Schedule to the Criminal Procedure and Evidence Act. The evidence against her included: (1) A motor vehicle stolen in the Norton robbery was recovered from her house in Glendale; (2) A Mercedes Benz stolen in the Ruwa robbery was recovered from her residence; (3) The firearm used in the robberies was recovered from her place of residence. She claimed the vehicle was bought from Edwin Muchagwa without knowing it was stolen, that Muchagwa had helped her hire a maid who allegedly gave him the pellet gun, and that she could not have participated in one robbery because she was pregnant. The State did not oppose the bail application, but the applicant applied for bail in the High Court as the Magistrates' Court had no jurisdiction to grant bail for Third Schedule offences.

• Whether the applicant had discharged the onus of proving, on a balance of probabilities, that it was in the interests of justice for her to be released on bail in respect of a Third Schedule offence
• The interpretation and application of s50(1)(d) of the Constitution of Zimbabwe, 2013 in relation to bail applications
• Whether s115C(2)(a)(ii) of the Criminal Procedure and Evidence Act, which places a reverse onus on accused persons charged with Third Schedule offences, is constitutional
• Whether the court has a duty to consider the interests of justice even when the State does not oppose bail
• Whether the applicant posed a danger to society and was a flight risk

The bail application was dismissed. The applicant remained in custody pending trial.

Where an accused person is charged with an offence specified in Part I of the Third Schedule to the Criminal Procedure and Evidence Act, the accused bears the burden of showing, on a balance of probabilities, that it is in the interests of justice for him or her to be released on bail, notwithstanding the provisions of s50(1)(d) of the Constitution. Section 115C(2)(a)(ii) of the Criminal Procedure and Evidence Act creates a reverse onus that applies to Third Schedule offences and is a constitutional limitation of the right to bail justified under s86 of the Constitution. Courts have an independent duty under s117(5) of the Code to weigh the personal interests of the accused against the interests of justice, even where the prosecution does not oppose bail. In determining whether it is in the interests of justice to grant bail, courts must consider whether the accused poses a danger to public safety, taking into account the degree of violence implicit in the charges, the strength of the State's case, and the likelihood that the accused will abscond given the potential sentence upon conviction.

The court made several obiter observations: (1) It expressed concern about the practice of legal practitioners noting appeals against judicial decisions without first obtaining the judge's full reasons, particularly where they allege no reasons were given when ex tempore reasons appear on the result slip. (2) The court noted it largely agreed with the reasoning in Vincent Kondo and Anor v The State HH 99/17 regarding the interpretation of s50(1)(d) of the Constitution, which suggests that provision applies to arrested persons before they appear in court rather than to bail applications in court, but stated the issue requires full argument in an appropriate case. (3) The court took judicial notice of the unprecedented spate of violent crime in Zimbabwe and the alarming trend of increasing participation by women in violent crimes, referencing several recent criminal cases. (4) The court emphasized that even if a firearm is only a pellet gun and not a real firearm, this is immaterial for purposes of determining whether a firearm was used in a robbery and cannot be a defence to the charge.

This case is significant in Zimbabwean criminal procedure law as it clarifies the application of the reverse onus provision in s115C(2)(a)(ii) of the Criminal Procedure and Evidence Act for Third Schedule offences. It demonstrates that the constitutional right to bail under s50(1)(d) is not absolute and must be read subject to statutory limitations that are fair, reasonable, necessary and justifiable in a democratic society. The judgment reinforces the principle that courts have an independent duty to consider the interests of justice in bail applications even where the State does not oppose bail. It also provides guidance on factors to be considered when assessing danger to public safety, including the degree of violence implicit in the charges and the broader context of violent crime in society. The case addresses procedural issues regarding the practice of noting appeals before obtaining full reasons from the trial judge, emphasizing that judges' ex tempore reasons on result slips form part of the court record and that litigants should request full reasons before appealing.