Smelly Dube v The State

The appellant was charged with three counts of fraud as defined in section 136(1)(b) of the Criminal Law (Codifications and Reform) Act, or alternatively conspiracy to criminal abuse of duty by a public officer. The charges related to alleged fraudulent allocation and sale of residential stands in three separate developments: 669 stands in Woodlands Park Gweru (2005), 1000 stands at Mabula A Farm, Zvishavane (2012), and 500 stands in Magakoosla Shurugwi (2013). The State alleged that the appellant, through her company River Valley Properties (Pvt) Ltd, colluded with public officials to obtain stand allocations without proper authority or written agreements with the relevant Ministries, and then sold the stands to the public while misrepresenting herself as the lawful owner. The magistrate at Gweru Magistrates Court denied the appellant bail on 12 March 2021 on the grounds that she was likely to abscond and interfere with witnesses and evidence. The appellant filed an appeal against the denial of bail to the High Court in Harare on 16 March 2021.

• Whether the High Court in Harare had jurisdiction to hear an appeal from Gweru Magistrates Court
• Whether the magistrate misdirected himself in denying bail to the appellant
• Whether compelling reasons existed to justify the denial of bail under section 50(1)(d) of the Constitution read with sections 115C and 117 of the Criminal Procedure & Evidence Act
• Whether there was a real likelihood that the appellant would abscond if granted bail
• Whether there was a real likelihood that the appellant would interfere with witnesses or evidence if granted bail
• The constitutionality of section 117 of the Criminal Procedure & Evidence Act
• The proper application of bail principles under the Constitution and the placement of the onus of proof

The appeal was allowed. The decision of the magistrate to deny bail was set aside. The appellant was admitted to bail pending trial on the following conditions: (a) deposit of $100,000 with the Clerk of Court, Magistrates Court, Gweru; (b) residence at 351 Samson Road, Kopje Gweru until finalization of the matter; (c) prohibition from visiting River Valley Properties (Pvt) Ltd business premises for 7 days from release unless cleared by the investigating officer; (d) prohibition against interfering with evidence, witnesses and investigations; (e) weekly reporting every Friday between 6:00 a.m. and 6:00 p.m. at Gweru Central Police Station.

The binding principles established are: (1) Under section 50(1)(d) of the Constitution read with sections 115C and 117 of the Criminal Procedure & Evidence Act, the State bears the onus to establish compelling reasons to deny bail on a balance of probabilities; (2) The seriousness of an offence standing alone does not constitute compelling reason to deny bail; (3) A finding that an accused is likely to abscond or interfere with witnesses must be based on cogent reasons and established facts, not speculation or bald assertions; (4) Where a court makes positive findings of fact that militate against abscondment (such as strong ties to place of trial, no history of evasion, fixed abode, employment, family connections), these cannot be overridden by speculation based solely on offence seriousness; (5) Before denying bail on grounds of potential interference with witnesses or evidence, courts must consider whether appropriate conditions under section 118(3) could adequately address those concerns; (6) The High Court has jurisdiction throughout Zimbabwe under section 171(1)(a) of the Constitution and section 23 of the High Court Act, without territorial limitations between High Court stations.

The court made several non-binding observations: (1) The decision in S v Munsaka 2016 (1) ALR 427 (H) should be read in context of the Criminal Procedure & Evidence Amendment Act No. 2 of 2016, which came into operation on 10 June 2016 after the Munsaka decision was delivered on 25 February 2016; (2) Section 117 of the Criminal Procedure & Evidence Act is not necessarily inconsistent with section 50(1)(d) of the Constitution, as it provides grounds which if established constitute compelling reasons to deny bail; (3) The protracted arguments on constitutionality of section 117 were not the real issue - the relevant question is whether compelling reasons were established; (4) When assessing strength of the State's case in bail applications, courts must exercise restraint to avoid making adverse findings against the accused based on untested allegations rather than evidence proven at trial; (5) It is not intended by bail law that a person on bail should lead the life of a convicted person by being denied livelihood, which is why restrictive conditions are provided for; (6) Various factors may influence a litigant's choice of High Court station including minimizing costs where counsel practices near a particular courthouse, location of witnesses, and other practical considerations.

This case provides important guidance on the application of constitutional bail principles in Zimbabwe following the enactment of section 50(1)(d) of the Constitution. It clarifies that: (1) the High Court has jurisdiction throughout Zimbabwe without territorial limitations between its stations; (2) the onus rests on the State to establish compelling reasons to deny bail on a balance of probabilities; (3) the seriousness of an offence alone cannot justify denial of bail; (4) findings of likelihood of abscondment or interference with witnesses must be based on cogent reasons and established facts, not speculation; (5) courts must consider imposing conditions under section 118(3) to address concerns about interference before denying bail altogether; and (6) positive findings of fact militating against abscondment cannot be contradicted by speculative findings based solely on offence seriousness. The judgment demonstrates proper application of the constitutional right to bail and the limited circumstances in which it may be denied.