The State v Nkululeko Moyo and Others

Four accused persons appeared before a magistrate on two counts of stock theft. In the first case, a motor vehicle was observed loading meat at an address in a city township. A check revealed unskinned meat of more than 120 kilogrammes, which was linked to the accused persons. In the second case, the accused allegedly stole a white bull and white cow from a farm in the Umguza area, drove the beasts about 500 metres from the fence, slaughtered them, hired a taxi, and ferried the meat to a house in Nkulumane, Bulawayo where 200 kg of meat was recovered. The owner of the house implicated the accused persons. The 1st and 2nd respondents were alleged to be wanted persons by Matopo Police for an outstanding case. The 1st respondent had a previous conviction for a similar offence in 2003. The magistrate granted bail of $150.00 each with reporting conditions, an order to continue residing at a given address, and surrender of travel documents, despite opposition by the Attorney General.

• Whether the magistrate erred in granting bail pending trial to accused persons facing serious charges of stock theft
• Whether the presumption of innocence overrides strong suspicion created by facts presented to the court in bail applications
• Whether the seriousness of the offence, likelihood of guilt based on evidence, and risk of reoffending should preclude the grant of bail

The appeal was allowed. The order by the magistrate granting the respondents bail in case number CRB W/C 1422-24/12 was set aside and substituted with an order that the respondents shall be remanded in custody pending trial.

The binding legal principle established is that in bail applications, while the presumption of innocence applies, it cannot override strong suspicion created by facts presented to the court. The court must balance the accused's right to freedom against the facts relied upon by the state. Where the state presents facts creating a real possibility of guilt, the offence is serious and attracts a long term of imprisonment, and there is evidence suggesting likelihood of reoffending (such as previous convictions for similar offences and outstanding warrants), it would be a misdirection to grant bail despite the general presumption in favour of liberty.

The court observed that facts suggested the accused committed the alleged crimes while wanted elsewhere for committing similar offences, indicating they were very likely to commit more similar offences before being tried for the current ones. The court also noted that allegations by police, while not yet proved, can create sufficient suspicion to justify refusing bail when considered together with other factors such as the seriousness of the offence and the strength of the evidence.

This case is significant in Zimbabwean criminal procedure law as it establishes the principle that the presumption of innocence in bail applications must be balanced against the strength of evidence, seriousness of the offence, and likelihood of reoffending. It provides guidance on when bail should be refused in cases involving serious offences such as stock theft, particularly where there is strong evidence against the accused, previous convictions for similar offences, and outstanding warrants for similar crimes. The case reinforces that the right to liberty pending trial is not absolute and must be weighed against public interest considerations including the risk of further offending.