Remember Moyo and Gilbert Moyo v The State

The two applicants, brothers Remember Moyo and Gilbert Moyo, were charged with two counts of murder. The first count related to the murder of Limukani Luphahla on 27 October 2001 in the Lupane area. The second count concerned the murder of Cain Nkala on 5 November 2001 at Norwood Farm after allegedly kidnapping him from his Bulawayo home. Remember was arrested on 11 November 2001 en route to Harare with Khethani Augustine Sibanda. Gilbert was arrested the next day, 12 November 2001. Both applicants alleged they were tortured by police to extract confessions. Remember claimed he was assaulted at Gweru Police Station, kicked, punched, and chained at Mbembesi Police Station for 3 nights without blankets. Gilbert alleged his head was forced into a toilet chamber while it was flushed, and he was beaten until he agreed to repeat a story told by a co-accused. Both applicants denied participating in the murders and challenged the admissibility of their alleged confessions. The state opposed bail on grounds that the applicants were likely to abscond, faced serious charges with sufficient evidence, and it was not in the interests of justice to grant bail.

• Whether the applicants should be granted bail despite facing serious murder charges
• Whether there was sufficient admissible evidence linking the applicants to the commission of the offences
• Whether confessions allegedly extracted through torture are admissible
• Whether confessions of co-accused can be used against an applicant
• Whether the state's application for leave to appeal the granting of bail should be granted
• The proper test for granting bail in serious criminal cases
• The evidentiary standard required to oppose bail applications

Bail was granted to both applicants on the following conditions: (1) each applicant deposits $5,000.00 with the Registrar of the High Court of Bulawayo; (2) each reports once a week every Friday between 6:00am and 6:00pm at Luveve Police Station; (3) each resides at 4735 Gwabalanda, Bulawayo; and (4) each does not interfere with state witnesses. The state's application for leave to appeal the granting of bail to Remember Moyo was dismissed.

The binding legal principle is that bail must be granted where there is no sufficient admissible evidence linking an accused to the commission of serious offences, regardless of the gravity of the charges. Confessions allegedly extracted through torture or coercion are inadmissible and cannot form the basis for refusing bail. Confessions made by co-accused cannot be used against an applicant in bail proceedings. An accused person is entitled to the presumption of innocence and liberty until proven guilty at trial. Hearsay and speculative evidence from investigating officers, without direct admissible evidence, is insufficient to justify refusing bail. The completion of investigations and readiness for trial supports granting bail rather than refusing it, as the accused can no longer interfere with the investigative process.

The court observed that no useful purpose was served by an identification parade where co-accused were identifying a colleague. The court also noted that witnesses who were themselves co-accused (Nkanyiso Moyo, Lungile Moyo, and Trevor Mguni) and who were on bail, did not claim to have witnessed the applicant committing murder, only placing him in the area. The court commented that the fact investigations were complete should work in the applicant's favor. The judge also indicated there was nothing wrong with the court relying on its earlier findings in a hearing involving the same people, as the case and evidence were the same (reference to the Spooner's case). The court made observations about the alleged torture methods used by police, including forcing heads into toilet chambers while flushing, chaining suspects to rings in cells, denying blankets, and assaults with fists and batons.

This case is significant in establishing important principles regarding bail applications in serious criminal cases in Zimbabwe (which shares common law heritage with South Africa). The judgment emphasizes: (1) the presumption of innocence until proven guilty applies even in serious cases; (2) bail cannot be refused based on inadmissible evidence, including confessions allegedly extracted through torture; (3) confessions of co-accused cannot be used against an applicant in bail proceedings; (4) hearsay and speculative evidence from investigating officers is insufficient to oppose bail; (5) the completion of investigations and readiness for trial works in favor of granting bail, not against it, as the accused can no longer interfere with investigations; (6) the seriousness of charges alone is insufficient to deny bail where there is no admissible evidence linking the accused to the crime. The case also demonstrates judicial willingness to scrutinize police conduct and reject evidence obtained through torture or coercion.