Elias Mutonya v The State

### Preamble
1
HH 680-25
HCHCR 5230/25
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ELIAS MUTONYA

versus

THE STATE

HIGH COURT OF ZIMBABWE

DEMBURE J

HARARE, 17 September & 29 October 2025

Application for bail pending trial

D Chiromo, for the applicant

C Mutimusakwa, for the respondent

DEMBURE J:

1. 	This is an opposed application for bail pending trial. On 17 September 2025, the court, after hearing oral submissions from the legal practitioners for both the applicant and the State, handed down an ex tempore judgment, the operative part of which was that the application was dismissed. It was only on 27 October 2025 that the applicant’s legal practitioners requested the written reasons for the judgment. These are the reasons.

THE FACTS

2. 	On 28 August 2025, the applicant was arraigned before the Magistrates Court at Bindura, facing a charge of robbery as defined in terms of s 126 of the Criminal Law (Codification and Reform) Act [Chapter 9:23] (“the Criminal Code”). He appeared in court together with his co-accused persons, namely Takudzwa Makanha, Munyaradzi Mucherahodzi and Edson Murambidzi, and they were all remanded in custody pending trial.

3.	The allegations, as contained in the Form 242, are that sometime in May 2025, the applicant hatched a plan with his brother-in-law, one Rashid Adam Chipanga (“Rashid”), who is still at large, to rob the Econet Wireless shop at Mvurwi. It was further alleged that the applicant supplied information to Rashid stating that a large sum of money was stored at the shop where he also worked as a security guard, and that there would be two security guards on duty, with only one of them armed. Rashid is alleged to have teamed up with the other three accused persons and stormed the Econet shop on 8 May 2025 at around 18:30 hours while wearing black hood jackets and black jeans. They were armed with an unidentified pistol, iron bars and tyre cables. They approached a security guard at the shop, one Sansly Sosera, pointed a firearm at him, a 38-inch special revolver, manhandled him and tied him with tyre cables. They forced open the door and gained entry into the Econet Shop where they stole US$55,000.00 cash, 32 boxed cellphones, two (2) wifi routers and one (1) black ThinkPad laptop and went away in their getaway motor vehicle.

4.	A bail statement was filed by the applicant’s legal practitioners of record in support of the application. An affidavit by one Shaybu Kelvine Manzie confirming that the applicant was his brother and that he stays with him at Kondo Village Ward 22 under Chief Chipuriro Guruve was attached to the bail statement. It is common cause that the applicant did not adduce any evidence himself, either orally or through an affidavit. Also attached to the application was the Form 242 and the annexure thereto. The applicant sought the following order:

“1. 	The Applicant be and is hereby admitted to bail pending trial.

2. 	The Applicant to deposit a sum of US$50.00 as bail surety through the Clerk of Court Guruve Magistrates Court.

3. 	The Applicant to reside at Kondo Village, Ward 22 Chief Chipuriro Guruve until the matter is finalised.

4. 	The Applicant not to interfere with State witnesses or investigations until the matter is finalised.

5. 	The Applicant to report once every fortnight between the hours of 6:00 am and 6:00 pm at Guruve Police Station, Harare.”

5.	The State filed its written response outlining the grounds for opposing the application. The two main grounds were that there was risk of abscondment and that the applicant constituted a danger to society.

SUBMISSIONS FOR THE APPLICANT

6.	Mr Chiromo, submitted that the applicant had managed to discharge the onus. He argued that the State raised the issue of abscondment, but there was no such risk given the circumstances of the matter. He submitted that the offence was allegedly committed in May and the applicant was arrested in August. Between May and August, he contended, the applicant continued to reside at his usual address and continued to go to work. He further argued that the applicant submitted himself to the police. I hasten to state that the applicant did not place before me the above evidence. It was merely Mr Chiromo who was accordingly leading evidence from the bar. That was legally incompetent. Counsel argued that the above factors were not for someone who would abscond. That applicant had ample time to abscond if wanted to do so.

7.	It was further submitted that when called by the police, the applicant volunteered himself to the police. He also argued that there can be stringent conditions, such as the reporting conditions, to reduce the fears. Counsel further submitted that in as much as our borders are porous, the arm of the law will always catch him. He denied that the information alleged in Form 242 came from the applicant.

8.	On the second issue that the applicant is a danger to society, it was argued that the applicant had proffered a reasonable explanation or defence to the charge he is facing. He argued that nothing had been put forward in the Investigating Officer’s affidavit to substantiate that. It was his further submission that a person is presumed innocent until proven guilty. In the absence of such evidence, he argued, the State's allegations remained bald assertions. The only link between him and the offence is that he is known to Rashid.

9.	Mr Chiromo further submitted that the applicant was a good candidate for bail because, firstly, he had a strong defence to the charge. Only the other accused persons were found in possession of stolen property. Secondly, he volunteered himself to the police. It was also argued that there were no allegations against him for trying to interfere with witnesses. Counsel maintained that the applicant had discharged the onus to show on a balance of probabilities that it was in the interests of justice that he be released on bail, and that there had not been put before the court any compelling reasons. The court was referred to the cases of S v Munsaka HB 55/16 and S v Shoshera & Ors HB 103/22. When the court queried whether the applicant had challenged his placement on remand, counsel admitted that he did not do so. He explained that the applicant was not aware of such a procedure since he was a self-actor. Counsel submitted that notwithstanding the fact that the applicant did not challenge his placement on remand, a careful consideration of the facts showed that he was a proper candidate for bail, and he should be admitted to bail as per the terms of the draft order.

SUBMISSIONS FOR THE STATE

10.	Ms Mutimusakwa submitted that the respondent adopted the State response filed of record. She argued that the applicant was misguided to think that the burden of proof was with the State. The case of S v Bonongwe HH 655/23 is clear that the applicant had to adduce evidence. The applicant did not give evidence that he was residing in Mvurwi and going to the police. The issue of surrendering himself should have been proved. She argued that the nexus between him and Rashid was the bridge to what happened between him and the crime.

11.	Counsel further submitted that the applicant did not challenge his placement on remand. It heightens the risk of abscondment that Rashid was on the run. She also submitted that this court is not a remand court. That the applicant’s solution lies in the remand court if he alleged no link at all to the commission of the offence. She maintained that the applicant failed to discharge the onus on a balance of probabilities that it is in the interests of justice for him to be released on bail pending trial. The court was also referred to the case of Gutu v The State HB 99/22.

THE LAW

12.	The law is clear that any person who is arrested must be released unconditionally or on reasonable conditions, pending a charge or trial, unless there are compelling reasons justifying their continued detention. See s 50(1)(d) of the Constitution of Zimbabwe. The right of an accused to bail pending trial is further restated in s 117(1) of the Criminal Procedure & Evidence Act [Chapter 9:07] (“the Act”). The court, however, has a discretion to either grant or refuse bail. It shall be in the interests of justice for the court to refuse to grant bail where one or more of the grounds set out in s 117(2) of are established. These are as follows;

12.1	where there is a likelihood that if released on bail, an accused person would endanger the safety of the public or any particular person or that he would commit an offence referred to in the first schedule; or

12.2	where there is a likelihood that the accused person will not stand his or her trial or appear to receive sentence; or

12.3	where there is a likelihood that the accused person will attempt to influence or intimidate witnesses or to conceal or destroy evidence; or

12.4	where there is a likelihood that the accused person will undermine or jeopardise the objectives of proper functioning of the criminal justice system, including the bail system; or

12.5	in exceptional circumstances where there is a likelihood that the release of the accused person will result in the disturbance of public peace or security.

13.	It is also now settled that where the accused person is charged with a Third Schedule offence, the burden is on him or her to show on a balance of probabilities that it is in the interests of justice that he or she be released on bail or that there are exceptional circumstances which in the interests of justice warrants his/her release on bail pending trial. Thus, s 115C(2)(a) of the Act states as follows:

“(2) Where an accused person who is in custody in respect of an offence applies to be admitted to bail—

(a) 	before a court has convicted him or her of the offence—

(i)	 the prosecution shall bear the burden of showing, on a balance of probabilities, that there are compelling reasons justifying his or her continued detention, unless the offence in question is one specified in the Third Schedule;

(ii)	the accused person shall, if the offence in question is one specified in— A. Part I of the Third Schedule, bear the burden of showing, on a balance of probabilities, that it is in the interests of justice for him or her to be released on bail, unless the court determines that, in relation to any specific allegation made by the prosecution, the prosecution shall bear that burden;

B. Part II of the Third Schedule, bear the burden of showing, on a balance of probabilities, that exceptional circumstances exist which in the interests of justice permit his or her release on bail…” (my emphasis)

14.	The legal position above was further affirmed in S v Zenda HB 101/17, where mathonsi J (as he then was) said the following on the burden of proof in respect of offences falling under Part I of the third schedule:

“The accused person only bears the burden in respect of offences specified in Parts I and II of the Third Schedule to the Criminal Procedure and Evidence Act [Chapter  9:07]”.

See also Bonongwe (supra).

EXAMINATION

15.	The court must determine whether the applicant is a suitable candidate for bail pending trial. As alluded to above, where the applicant faces an offence of robbery under Part I of the Third Schedule, the law places a burden on him to show on a balance of probabilities that it is in the interests of justice that he be admitted to bail pending trial. This burden is evidential. It can only, therefore, be discharged by the accused adducing evidence. The failure to adduce such evidence would, in the circumstances, be fatal to the application. See the case of Gutu (supra) where DUBE-BANDA J remarked as follows:

“It is important to highlight that applicant is facing a crime referred to in Part 1 of Schedule 3 of the Criminal Procedure and Evidence Act [Chapter 9:07], being robbery, involving the use by the accused or any co-perpetrators or participants of a firearm. In terms of section 115C (2) (a)(ii) (A) Criminal Procedure and Evidence Act applicant bears the burden of showing, on a balance of probabilities, that it is in the interests of justice that he be released on bail. It then follows that the bar for granting bail in the crime of robbery involving the use of a firearm is lifted a bit higher by the legislature. This is what the applicant has to contend with. For him to discharge such a burden of proof, he must adduce evidence before court, i.e. oral evidence or by affidavit.

In Van Brooker v Mudhanda & Another AND Pierce v Mudhanda & Another SC 5/ 2018 it was held thus:

When one speaks of the need to discharge an onus, it immediately becomes clear that there is an evidentiary burden that must be met. There is no suggestion that such burden as required to be met was met by documents filed of record. There were no affidavits placed before the court a quo.

The standard of proof required from the applicant to establish that it is in the interests of justice that he be released on bail is on a balance of probabilities. Such burden cannot be discharged by mere submissions contained in a bail statement. Applicant must adduce evidence. The evidence must show that exceptional circumstances exist which in the interests of justice permit his release on bail pending trial. …

Applicant did not adduce evidence. …

On the principle of the presumption of constitutional validity and the notion of legal certainty the provisions of the Criminal Procedure and Evidence Act which casts the onus on a bail applicant are valid and enforceable provisions until such time that a competent court rules to the contrary. The procedure of declaring legislative provisions constitutionally invalid is clearly set out in the Constitution. Until such time, if it ever happens, that the provisions that reverse the bail onus are declared constitutionally invalid, courts must give full effect to them. In Magaya v Zimbabwe Gender Commission SC 105/2021 the court held thus:

It is pertinent to point out that for every law that is gazetted there is a presumption of validity and appropriate legal mechanisms have been put in place in terms of the law where one intends to challenge the validity of a legal instrument. Until it has been set aside, the General Notice has the force of law and anything done under it is presumed to be lawful and valid.

A bail applicant who is charged with a Part 1 Schedule 3 must adduce evidence. Adducing evidence simple means placing evidence before court, this could be by way of oral evidence or by affidavit. Submissions in a bail statement do not constitute evidence. This is basic. Applicant did not adduce evidence. He has failed to take the first procedural step of showing that exceptional circumstances exist which in the interests of justice permit his release. This is fatal to this application.” (my emphasis)

16.	I fully associate myself with the principles set out in the above case. The applicant did not adduce evidence in respect of the material considerations in an application of this nature. That was fatal to the application. The same legal position was restated in Bonongwe (supra), where mutevedzi J aptly said:

“What that entails is that an applicant to bail is required to adduce evidence to prove the averments he/she makes in his/her application... An applicant who simply makes bald assertions as if he has no onus to discharge does himself/herself a big disservice.”

17.	It was the State’s main contention that there is risk of abscondment. When assessing the likelihood of abscondment the court must consider the factors set out in s 117(3)(b) of the Act. The said provisions state as follows:

“(3)  	In considering whether the ground referred to in –

(a) 	…

(b)	subsection (2)(a)(ii) has been established, the court shall take into account—

(i)	the ties of the accused to the place of trial;

(ii)	the existence and location of assets held by the accused;

(iii)	the accused’s means of travel and his or her possession of or access to travel documents;

(iv)	the nature and gravity of the offence or the nature and gravity of the likely penalty therefor;

(v)	the strength of the case for the prosecution and the corresponding incentive of the accused to flee;

(vi)	the efficacy of the amount or nature of the bail and enforceability of any bail conditions;

(vii)	any other factor which in the opinion of the court should be taken into account.”

18.	In my view, the applicant is a flight risk. In other words, there is a likelihood of him absconding on the following basis:

The applicant faces a serious offence and, upon conviction, is likely to be sentenced to a lengthy prison term. I am aware of the legal position that the seriousness of an offence alone is not on its own enough to justify a refusal to grant bail. See S v Hussey 1991(2) ZLR 187 (S). The seriousness must be considered together with the other factors. The likelihood of a severe sentence upon conviction is a factor which can, however, induce an accused person to abscond. See S v Jongwe 2002 (2) ZLR 209 (S). The offence in question was committed in the circumstances which are aggravating due to the use of a firearm. The applicant would likely face the presumptive sentence of 20 years imprisonment if convicted.

19.	The seriousness of the offence and the likely penalty upon conviction must be further considered with the other factors in this case, which further make the applicant a flight risk. The State's case is very strong. The applicant was employed as a security guard at the premises where the robbery took place. He was linked to the offence by the communication he had with one of the masterminds of the robbery, one Rashid, who was said to be still at large. It was not in dispute that he is related to the said Rashid. The police were able to link him to the offence with the communications he had with the said Rashid. He allegedly supplied the information that there was a large amount of money at the shop, as well as giving him the security situation there, which information he could easily have obtained as he worked at the place in question.

20.	He was also strongly linked to the offence after he was implicated by his co-accused persons. It was improbable that he did not know them as alleged. The applicant did not adduce evidence to show that he had any plausible defence to the charge. The State’s allegations were, therefore, not controverted. Mr Chiromo was at pains seeking to lead evidence from the bar by alleging that the applicant remained at his usual address and that he was reporting for duty from May to August when he was eventually arrested. He also sought to lead evidence that the applicant voluntarily surrendered himself to the police. His bail statement and oral submissions from the bar do not constitute evidence. He could not validly give such evidence on behalf of the applicant.

21.	It is trite that a bail statement is not evidence. Submissions, whether oral or in writing from counsel, do not constitute evidence. Evidence can only be properly adduced either orally under oath or in writing through an affidavit. The applicant did not place such evidence before me to controvert the State’s position or allegations in the Form 242. Once the allegations were not challenged with any evidence by the applicant, they must accordingly be accepted.

22.	The allegations that the applicant had supplied the information leading to the robbery through his brother-in-law, Rashid, were unchallenged. He was undetected until August 2025, when he was arrested. Property of substantial value was stolen, and the offence was committed with the use of a dangerous weapon and by a gang with common purpose. He was strongly linked to the crime by his communication with Rashid, one of the culprits and was implicated by his co-accused persons. I do not accept that there was no link between him and the crime. He did not challenge his placement on remand. It is trite that an acquiescence by the accused to being placed on remand is itself an admission that there is reasonable suspicion that he committed the offence. In Bonongwe (supra), the court said:

“The applicant appears to start from the premises that he was not at the crime scene, that he was not found with anything that linked him to the crime scene and therefore his hands are clean. He forgets that he has the onus to show that it is in the interests of justice that he be admitted to bail. If there had not been anything to link him to the commission of the offence, the route to take was to have challenged his placement on remand in the Magistrates Court. His acquiescence to being placed on remand is itself an admission that there is reasonable suspicion that he committed the offence. In the case of Loveridge Dzimwasha and Others v the state HH 119/23 this court dealt with that issue in the following terms:

“As already stated, all the nine applicants challenged the link between themselves and the crimes alleged against them by prosecution. They argued that nothing was recovered from them or from accused 11 and 10 to whom they allegedly sold and gave for safekeeping respectively, the stolen goods. Put differently, their position is a veiled allegation that they must be admitted to bail because there is no reasonable suspicion that they committed the offences preferred against them. The point which proponents of this approach appear to miss is that although there is a relationship between the request for remand procedure and an application for bail, there is an equally marked difference between the two. The question of bail does not arise until prosecution has successfully applied for the placement of an accused on remand. In appropriate instances where the state fails to satisfy the requirements to have an accused person placed on remand, that accused is released without the need to apply for bail. For purposes of completeness, I restate the elementary principle that the request for remand will only succeed where prosecution has shown that there is reasonable suspicion that the accused committed the offence charged.”

The applicant in this case similarly appears to miss the same point. He is connected to the commission of the offence. By extension he is connected to the crime scene and to the activities and depredations of his accomplices. An accused who is jointly charged with others is allowed to challenge the facts on which he is placed on remand. It is wise to do so even without challenging the placement on remand itself. A failure to do that results in the inevitable inference that the accused admitted the facts as they appear in the allegations. A challenge on the allegations/facts at remand stage is important even if it does not succeed. It will serve to show that the applicant disputed the facts right from the beginning. On one hand where that challenge has been made, an applicant to bail can proudly produce a record of his disputation of the facts. On the other, silence about it means that the accused agreed with the facts as alleged by prosecution. It becomes impermissible for that same accused as an applicant for bail to start challenging those facts in bail proceedings. The difference between bail and remand procedures is like that between day and night as highlighted above. The trend that has emerged where numerous witnesses are called to testify in bail proceedings is inappropriate in my view. It threatens to annihilate all that we know about the conduct of bail applications and turn that process into trial action. I have said previously that bail proceedings are written applications which for all intents and purposes must be dealt with on the papers. The real opportunity to deal with disputed facts therefore avails itself to an accused at remand stage.” (my emphasis)

23.	Mr Chiromo argued that the applicant was a self-actor and that he did not know the procedure for challenging his placement on remand. This cannot assist him. The law is clear that ignorance of the law is not an excuse. Whether or not he did not know the legal procedure, the fact remains that he did not challenge his placement on remand or dispute the facts in the remand court. He cannot, therefore, seek to do so through the bail court. I, therefore, find his claim that there was no link whatsoever between him and the commission of the crime to be unsustainable. This must also be taken in the context where the applicant adduced no evidence to establish that he had a plausible defence. His legal practitioner could not speak on his behalf as his submissions do not constitute evidence. To that extent, the State's position that it had a strong case against him was not controverted by evidence from the applicant, and in that light, there would reasonably be an inducement for the applicant to abscond.

24.	I have also considered that there was no evidence establishing that the applicant had any assets in the country. He did not state disclose whether he has travel documents or not one of the factors the court ought to consider. While it was not in dispute that he is married, employed and of fixed abode as established by the supporting affidavit filed confirming his place of residence and that the applicant had proposed some bail conditions including the sum of US$50 as a bail deposit and reporting conditions in the draft order, I did not find these sufficient to allay the State’s fears of the risk of abscondment. The alleged mastermind of the robbery, who is the person the applicant is alleged to have supplied information leading to the robbery, one Rashid, is still at large. It is not in the interests of justice that he be released on bail at this stage. I agree with Ms Mutimusakwa that the applicant is a flight risk for the above reasons taken together.

25.	It is also my view that, given the circumstances that the offence was committed with the use of a firearm, where one of the alleged offenders is still on the run and where the applicant himself failed to show that he has a plausible defence, it is not in the interests of justice that he be released pending trial. The respondent also submitted that the applicant was a danger to the public, given the way the offence was committed, which also involved the use of dangerous weapons. The applicant failed to adduce evidence to show a reasonably probable defence. He was strongly linked to the commission of the crime. The court must take judicial notice of the rise of offences of this nature. Indeed, the accused’s release would also likely endanger the safety of the public. Of course, the applicant is still presumed innocent until proven guilty, but his right to liberty must be balanced with the interests of the administration of justice, which requires that the accused person stand trial. I accordingly adopted the approach set out in Attorney General v Phiri 1987 (2) ZLR 33, where the court said:

“The fundamental principle governing the court's approach to the granting of bail is that of upholding the interests of justice. This requires the court, as expeditiously as possible, to fulfil its function of safeguarding the liberty of the individual, while at the same time protecting the administration of justice and the reasonable requirements of the State…”

DISPOSITION

26.	The applicant failed to discharge the burden on him to show on a balance of probabilities that it is in the interests of justice that he be released on bail pending trial.  He did not adduce evidence to controvert the State’s case. That failure to adduce evidence was fatal to his case. The applicant is not a suitable candidate for bail pending trial. The application must fail.

Accordingly, the court entered the judgment aforestated.

DEMBURE J ……………………………………………….

Mapaya & Partners, applicant’s legal practitioners

National Prosecuting Authority, respondent’s legal practitioners