Remember Moyo and Others v The State

Three appellants were charged with the murder of Lumukani Luphlahla and Cain Nkala. The first and third appellants were indicted on both counts, while the second appellant was indicted only for the murder of Cain Nkala. All appellants were on bail prior to indictment but were committed to prison upon indictment in terms of section 110(2) of the Criminal Procedure and Evidence Act. The second and third appellants had made incriminating confessions and indications which resulted in the recovery of a body, vehicle and other items of evidence. A second accomplice, Army Zulu, was believed to have absconded since the grant of bail to the appellants prior to their indictment. The appellants applied to the High Court for bail, which was dismissed by Mavangira J. Their application for leave to appeal against that decision was also dismissed by the same judge. They then appealed to the Supreme Court against the refusal to grant leave to appeal.

• Whether the High Court erred in refusing the appellants bail pending trial
• Whether the High Court erred in refusing leave to appeal against the refusal of bail
• Whether there were reasonable prospects of success on appeal
• Under what circumstances the Supreme Court can interfere with the High Court's decision in bail applications
• Whether the subsequent discovery that the co-accused had not absconded constituted grounds for granting leave to appeal

The appeal against the refusal to grant leave to appeal was dismissed.

Leave to appeal in bail applications must establish reasonable prospects of success and will not be granted merely for the asking or upon the possibility that another court may take a different view. The Supreme Court's power to interfere with the High Court's decision in bail applications is limited: in the absence of misdirection or irregularity, the Supreme Court must be satisfied that the manner in which the High Court judge exercised her discretion was so unreasonable as to vitiate the decision reached. Where a High Court judge has relied on multiple grounds for refusing bail, the subsequent discovery that one of those grounds may have been based on incorrect information is insufficient to establish unreasonable exercise of discretion if other compelling grounds remain.

Ziyambi JA observed that the discovery that the co-accused Army Zulu had not actually absconded might be sufficient justification for filing a fresh application for bail on the grounds of changed circumstances, but it was not a finding that could be made to grant leave to appeal on the papers before the court. This suggests that appellants in similar situations should consider bringing a fresh bail application rather than pursuing an appeal against the refusal of leave to appeal.

This case reinforces the established principles governing leave to appeal in bail applications in Zimbabwean law. It clarifies the limited circumstances under which the Supreme Court will interfere with a High Court's exercise of discretion in bail matters, emphasizing that leave to appeal will not be granted merely because another court might take a different view. The judgment also distinguishes between grounds for a fresh bail application based on changed circumstances and grounds for leave to appeal against the original decision. It demonstrates the high threshold that must be met to establish that a judge's exercise of discretion was so unreasonable as to vitiate the decision.