Talent Mumpande v The State

The appellant was charged with contravening section 3(1) of the Gold Trade Act (Chapter 21:03). On 15 June 2020, at 26 Adair Drive, Killarney, Bulawayo, the appellant allegedly unlawfully possessed 78 melted buttons of gold weighing 2,788.38g without holding a valid licence or permit. The appellant denied the allegations and raised a defence that he was working as an agent for his employer, Mr Tshuma, who was a registered gold dealer, and that the gold was found at his employer's premises, not at the appellant's own residence at 1 Leander Avenue, Hillside, Bulawayo. The appellant appeared before a magistrate on 17 June 2020 and applied for bail, which was refused. The magistrate found that the appellant had a propensity to commit similar offences based on a previous conviction for dealing in gold, and that there was a likelihood of absconding given the serious nature of the charge and potential mandatory minimum sentence of 5 years imprisonment.

• Whether the magistrate erred in finding compelling reasons to deny bail
• Whether the magistrate violated the appellant's constitutional right to the presumption of innocence
• Whether the magistrate properly considered the likelihood of the appellant absconding
• Whether the magistrate properly balanced the interests of justice against the accused's liberty
• Whether the existence of a previous conviction and the seriousness of the charge alone are sufficient grounds to deny bail

The appeal was allowed. The court ordered that the appellant be admitted to bail in terms of the draft order submitted.

In bail applications, courts must uphold the constitutional presumption of innocence and may not approach the matter as if the accused's conviction is guaranteed. Where the state alleges a risk of absconding, there must be evidence placed before the court to support such fears - bold allegations without factual basis are insufficient. The seriousness of the charge alone is not sufficient ground for opposing bail. Courts must balance the interests of justice with those of the accused, and the legal tradition is to lean in favour of, and not against, the liberty of an applicant in a bail application. An accused is not on trial during a bail application, and where a potentially sustainable defence is raised, this must be taken into account in assessing whether to grant bail.

The court observed that in assessing the risk of abscondment, courts should be guided by the principles set out in Aitken & Another v AG 1992 (2) ZLR 249 (S), which include consideration of: the character of the charges and probable penalties; the strength of the state's case; the ability to flee to a foreign country and absence of extradition facilities; past response to being released on bail; and assurances given regarding intention to stand trial. The court also noted that the Investigating Officer should have sworn to an affidavit explaining any fears regarding the possibility of the appellant fleeing, which had not been done in this case. The court further observed that even if the licence had expired in December 2019 as alleged, the person to explain the discrepancy would be the appellant's employer, not the appellant himself, which supported the defence that the appellant was merely an agent.

This case reinforces fundamental principles of bail jurisprudence in Zimbabwe, particularly the constitutional right to bail under section 50(1)(a) of the Constitution, and the requirement that courts uphold the presumption of innocence in bail applications. The judgment emphasizes that courts must not approach bail applications as if conviction is guaranteed, and that allegations regarding risk of absconding must be supported by evidence rather than bare assertions. The case demonstrates that the seriousness of a charge and previous convictions alone are insufficient grounds to deny bail, and that courts have a constitutional duty to lean in favour of liberty rather than against it in bail applications.