MUNSAKA v THE STATE*

HIGH COURT, BULAWAYO

[Bail Application HB 55-16]

February 19 and 25, 2016

MATHONSI J

Criminal procedure  –  Bail  –  Onus of proof in bail applications  –  Longstanding principle no longer applicable  –  Constitution of Zimbabwe Amendment (No 20) Act, 2013  –  Rights of arrested and detained persons  –  Section 50 (1)(d).

On his initial appearance on allegations of rape the magistrates’ court remanded the applicant in custody. He successfully applied to be released on bail pending trial at the High Court. The judge held that the erstwhile position where the onus was on the accused to show on a balance of probabilities why it was in the interests of justice that he should be freed on bail, is no longer applicable.

Held, further that the admission of arrested and detained persons to bail has been made a constitutional right by the Constitution of Zimbabwe, 2013 which in terms of s 50 (1)(d) has shifted the onus of proof to the State to establish compelling reasons why an arrested person should be denied bail and remain in custody pending trial. Where the State fails to show compelling reasons an arrested person is entitled, as of right, to be released either unconditionally or on reasonable conditions pending trial.

Cases cited:

Birch v Klein Karoo Agricultural Co-operative Ltd 1993 (3) SA 403 (A), referred to

Ebrahim v Minister of the Interior 1977 (1) SA 665 (A), referred to

S v Khumalo HB 243-15 (unreported), referred to

S v Nottingham Estates (Pvt) Ltd 1995 (1) ZLR 253 (S), referred to

Legislation considered:

Constitution of Zimbabwe Amendment (No 20) Act, 2013, s 50 (1)(d)

Criminal Procedure and Evidence Act [Chapter 9:07], ss 117, 117 (2), (3), 117A (1)

B Masamvu, for the applicant

T Hove, for the respondent

MATHONSI J:

The opposition to this bail application graphically demonstrates how officers prosecuting on behalf of the Prosecutor-General either by design or lack of understanding, have remained rooted in the past without embracing the new constitutional order when it comes to the issue of bail. It also shows why, what has been roundly referred to as the re-alignment of laws to the new constitution, should be prioritised in the interest of the smooth administration of justice and good order.

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