Oricious Moyo v The State

On 22 July 2017 at around 22:20 hours, the applicant shot the deceased once on the right side of his ribcage. The State alleged that the shooting occurred after the deceased had confronted the applicant about an alleged affair between the applicant and the deceased's wife, Jacquiline Moyo. The applicant contended that he shot the deceased in self-defense during an attempted robbery by three people including the deceased. After the shooting, the applicant reported to the police and was initially treated as a complainant while the deceased (who was hospitalized) was treated as the offender. The deceased subsequently died, and the applicant was charged with murder. The applicant was a businessman and cross-border transporter with 22 employees, owned property in Emganwini, held a valid Zimbabwean passport, and was a family man with seven children. Some of the State witnesses were employees of the applicant.

• Whether the applicant was a suitable candidate for bail pending trial on a murder charge
• Whether there were compelling reasons to deny bail in the interests of justice
• Whether section 115C(2)(a)(iii) of the Criminal Procedure and Evidence Act casting the burden of proof on accused persons in specified offences is constitutional
• Whether there was a flight risk given the applicant's cross-border business activities and links to South Africa
• Whether there was a risk of interference with State witnesses who were the applicant's employees
• How to balance constitutional rights to bail under section 50(1)(d) and the presumption of innocence under section 70(1) of the Constitution against the interests of justice

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

In bail applications, the court must consider the cumulative effect of relevant factors rather than any single factor in isolation. These factors include: (1) the seriousness of the charges and likely penalties; (2) the strength of the State case versus the weaknesses and probability of the defense; (3) the accused's ability to flee, particularly through cross-border links and means of travel; (4) the risk of interference with witnesses, particularly where there is a power imbalance such as in employer-employee relationships. Where an accused faces a serious charge like murder with heavy penalties, the State case is strong, the defense appears improbable, the accused has cross-border business activities and links providing means and opportunity to abscond, and witnesses are the accused's employees creating interference risks, bail should be refused as it would not be in the interests of justice. Section 115C(2)(a)(iii) of the Criminal Procedure and Evidence Act, which places the burden on accused persons in specified offences to show they are suitable candidates for bail, remains valid law and is not unconstitutional merely because it requires the accused to counter compelling reasons for detention, as this is consistent with section 50(d) of the Constitution which permits continued detention where compelling reasons exist.

The court made several obiter observations: (1) While two other High Court judgments had found section 115C(2)(a)(iii) unconstitutional, these judgments were not binding and the judge was not persuaded by their reasoning; (2) The court took judicial notice of the porosity of Zimbabwe's borders, particularly with South Africa; (3) The court observed that while witness statements may have been finalized, interference can occur later resulting in witnesses turning hostile and disowning their statements, and while impeachment proceedings could be initiated, this would seriously affect the character of the State case; (4) An accused facing less serious charges may not abandon substantial assets, but where charges are serious with heavy penalties and a strong prima facie case exists, an accused may be willing to abandon substantial assets to avoid years in prison; (5) The fact that the applicant had businesses, property, and family in Zimbabwe would not carry much weight against the cumulative effect of other factors pointing to flight risk and interference with witnesses.

This case is significant in Zimbabwean criminal procedure law for: (1) reaffirming and applying the cumulative factors approach to bail applications established in State v Jongwe, particularly the assessment of the strength of the State case versus the plausibility of the accused's defense even at the bail stage; (2) recognizing the risk of witness interference in employer-employee relationships as a valid ground for refusing bail; (3) addressing the constitutionality of section 115C(2)(a)(iii) of the Criminal Procedure and Evidence Act and affirming its validity until declared unconstitutional by the Supreme Court; (4) demonstrating how constitutional rights to bail must be balanced against the interests of justice, particularly where flight risk is high due to cross-border business activities and access to neighboring countries; (5) clarifying that an accused's cooperative conduct before facing the most serious charge may be irrelevant to assessing flight risk once more serious charges with heavier penalties are laid.