Nqobile Moyo v The State

On 20 January 2020, the applicant allegedly had sexual intercourse with his cousin Rumbidzai Mkhwananzi without her consent, then strangled her to death. He allegedly dragged the body approximately 300 metres, went home to collect paraffin and matches, carried the body to the bush, dug a shallow grave, set the body on fire, and buried it. The body was later exhumed and identified by Misheck Moyo. The applicant allegedly admitted to killing the deceased after raping her. Evidence included a partly burnt plastic tent recovered from the shallow grave and the shovel used to dig the grave. The applicant appeared before the Nyamandlovu Magistrates Court on 2 January 2020, was placed on remand and detained in custody. As the charge was a Third Schedule offence, the magistrate had no jurisdiction to hear the bail application without the Prosecutor-General's consent, so the applicant applied for bail before the High Court.

• Whether section 50(1)(d) or section 50(4)(d) of the Constitution is the appropriate provision to anchor a bail application for a person who has already appeared in court
• Whether the applicant discharged the onus under section 115C(2) of the Criminal Procedure and Evidence Act to show on a balance of probabilities that it is in the interests of justice for him to be released on bail
• Whether the risk of absconding was sufficiently established given the serious nature of the charge and the strength of the State's case
• Whether the applicant adduced sufficient evidence to satisfy the court that exceptional circumstances exist which in the interests of justice permit his release

The application for bail pending trial was dismissed.

For Third Schedule Part I offences under Zimbabwean law, the applicant bears the burden of proving on a balance of probabilities that it is in the interests of justice to be released on bail. This burden must be discharged by adducing evidence before the court, not by mere assertions in a bail statement. In assessing the risk of absconding, the court must consider the nature and gravity of the offence, the likely penalty upon conviction, and the strength of the State's case. Where the evidence is strong, the charge is serious, and a lengthy sentence is likely upon conviction, the temptation to abscond becomes irresistible, justifying the refusal of bail. Section 50(1)(d) of the Constitution applies to arrested persons seeking release before initial court appearance, while section 50(4)(d) applies to those seeking release at or after their first court appearance.

The court observed that the constitutionality of provisions reversing the onus of proof in bail applications has not been tested in Zimbabwe. Until such provisions are declared constitutionally invalid through proper procedure, courts must give full effect to them based on the principle of presumption of constitutional validity and legal certainty. The judge noted that even if the onus had been on the State rather than the applicant, the State would have easily discharged it given the overwhelming evidence against the applicant. The court remarked that bail applications for Third Schedule Part I offences are "not a walk in the park" and require strict adherence to evidentiary requirements.

This case clarifies important principles in Zimbabwean bail jurisprudence, particularly the distinction between section 50(1)(d) and section 50(4)(d) of the Constitution regarding pre-charge detention versus post-charge bail applications. It reinforces that for Third Schedule Part I offences, the reversed onus under section 115C(2) of the Criminal Procedure and Evidence Act requires applicants to adduce actual evidence, not mere statements, to show it is in the interests of justice to grant bail. The judgment also emphasizes that while the presumption of innocence and right to liberty are fundamental rights, they may be justifiably interfered with where the serious nature of the offence, the strength of the State's case, and the likelihood of a severe sentence create a real risk of absconding. The case affirms the continuing constitutional validity of reversed onus provisions until declared otherwise by a court.