Godfrey Josi and Andrew Nyamutowa and Prince Nyamhanza v The State

### Preamble
1
HH 624-25
HCHCR 4897/25
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GODFREY JOSI

and

ANDREW NYAMUTOWA

and

PRINCE NYAMHANZA

versus

The State

HIGH COURT OF ZIMBABWE

MANYANGADZE J

HARARE, 29 August, 16 September &   13 October 2025

Bail application

E Mavuto, for the applicants

A Masamha, for the respondent

MANYANGADZE J:  This is an application for bail pending trial. The three applicants were placed on remand at the Harare Magistrates Court on charges of robbery, as defined in s 126 of the Criminal Law (Codification and Reform) Act [Chapter 9:23].

The brief allegations are that on 9 June 2025 the applicants, in the company of an unspecified number of other accomplices who are still at large, went to the complainant’s premises in the Eastley suburb of Harare, armed with pistols and a rifle. They manhandled the two complainants who were at the premises and tied their hands with shoe laces. Using a grinder, they broke the safe from which they took US$100,00. They stole a few other items which included a Wemblen revolver. The applicants fled the scene after a Fawcett reaction team arrived.

In its response to the application, the State opposes bail on the basis that the applicants are facing very serious charges. There is overwhelming evidence against them. The evidence is in the form of a CCTV video clip that shows the first applicant at the scene of crime. The first applicant went on to implicate the second and third applicant. This is what led to the arrest of the applicants. No property was recovered from any one of them.

The State further avers that the applicants tried to evade arrest and the police had to discharge firearms to effect arrest.

In countering the State’s allegations, the applicants aver that the CCTV clip relied on is not helpful at all. The person depicted therein is not clear as he is wearing a mask. First applicant was together with his brother-in-law, the second applicant, when they were arrested. Nothing was recovered from them that links them to the offence. First applicant denies ever implicating second and third applicant.

As for the alleged pending cases, further remand was refused in the case involving the second applicant. The third applicant was acquitted. So, there are no pending cases to talk about.

Faced with this rebuttal of its pertinent averments, the State called the investigating officer to give evidence.

The investigating officer, George Pukai, is a detective sergeant in the Criminal Investigation Department (Homicide) and is currently based at the Harare Central Police Station. He has been in the police force for 19 years.

The witness told the court that the CCTV footage was not clear and conclusive. They had to send it to the Cyber Laboratory for comparison with applicant’s photo. The results are not yet out. The witness said nothing was recovered that links any of the applicants to the crime. He further stated that the CRB extracts from the Harare Magistrates’ Court confirm that further remand was refused for second applicant, and third applicant was acquitted. He has checked and verified that there are no pending cases involving them.

During cross-examination by counsel for the applicants, the witness softened his initial hardline stance in opposing bail. This was in view of the fact that most of his evidence confirmed what the applicants were saying regarding the weakness of the State’s case against them. He indicated that he would not continue to oppose bail if appropriate conditions are imposed, such as an order not to interfere with witnesses. In any case, it is inconceivable that that the applicants can interfere with the arresting details, who are among the key witnesses in this case.

Commenting on the evidence of the investigating officer, Mr Mavuto, counsel for the applicants, stated during oral submissions:

“The investigating officer has buttressed applicants’ earlier submissions that the State case is very weak. No evidence whatsoever links any of the 3 applicants to the offence. We have filed CRB extracts which confirm that further remand was refused for the first applicant and the third applicant has since been acquitted.

On the CCTV which the Sate alleges links the first applicant, the investigating officer confirmed the CCTV is not conclusive – the reason why they sent it to the cyber laboratory – it depicts a person with a mask covering half the face.

The investing officer conceded that if the court orders that the applicants must not interfere with witnesses, ha has no problems with that.

All the three applicants are proper candidates for bail on conditions the court deems fit.”

After the investigating officer’s evidence, counsel for the State climbed down from the State’s initial opposition to bail.  The State conceded to the granting of bail on appropriate conditions.

The fundamental and trite position at law on bail is enshrined in s 50 (1) of the Constitution of Zimbabwe, which reads as follows:

“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.”

Generally, the onus is on the State to show, on a balance of probabilities, that there are compelling reasons, such as are outlined in s 117 of the Criminal Procedure  and Evidence Act [Chapter 9:07], to deny the accused the constitutionally guaranteed right to bail. Section 117 (1)(2) provides:

“(1) Subject to this section and section 32, a person who is in custody in respect of an offence shall be entitled to be released on bail at any time after he or she has appeared in court on a charge and before sentence is imposed, unless the court finds that it is in the interests of justice that he or she should be detained in custody.

(2) The refusal to grant bail and the detention of an accused in custody shall be in the interests of justice where one or more of the following grounds are established-

(a) where there is a likelihood that the accused, if he or she were released on bail, will-

(i) endanger the safety of the public or any particular person or will commit an       offence referred to in the First Schedule; or

(ii) not stand his or her trial or appear to receive sentence; or

(iii) attempt to influence or intimidate witnesses or to conceal or destroy evidence; or

(iv) undermine or jeopardise the objectives or proper functioning of the criminal justice system, including the bail system;

(b) where in exceptional circumstances there is the likelihood that the release of the accused will disturb the public order or undermine public peace or security.”

However, there is, in s 115 C (2)(a)(ii) of the Criminal Procedure and Evidence Act, a reversal of the onus in respect of Third Schedule offences.  This provision reads 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-

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;”

In the case of Brandon Isheanesu Gumbo Gutu v The State, HB 99/22, Dube-Banda J was seized with a matter in which he had to apply the above-cited provisions. The learned judge remarked, at p 4:

“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.”

In that case, the applicant was denied bail because he failed to discharge the onus resting on him in respect of Third Schedule offences. This failure was in the face of a very strong prima facie case having been laid out by the State. The applicant was the driver of the getaway car. A firearm and a machete used in the commission of the robbery were recovered from the applicant, as well as the complainant’s cell phone. Added to all this was the applicant’s inculpatory warned-and-cautioned statement.

In casu, as already indicated, no property was recovered from any of the applicants. The CCTV footage is not conclusive. No evidence of previous convictions or pending cases was placed before the court. The alleged implication by the first accused of his co-accused was denied. It is the State merely alleging that he is implicating his accomplices. There is no warned-and-cautioned statement buttressing that. Such a statement would have been, prima facie, evidence of the alleged implication, for purposes of a bail inquiry. Issues relating to its admissibility would be a matter for trial.

So, the instant case is clearly distinguishable from the Brandon Isheanesu case, supra, where there was overwhelming prima facie evidence against the applicant. The applicant had also not adduced evidence to rebut the strong and well buttressed State allegations against him. In casu, the applicants have adduced evidence, in the form of affidavits, controverting the State’s allegations. They have not merely relied on submissions made on their behalf, which are not evidence. Given the concessions made by the State on the weakness of its case, the applicants have, in my considered view, discharged the onus resting on them as envisaged in s 115 C (2) of the Criminal Procedure and Evidence Act.

Granted, the allegations the applicants are facing are very serious. The crime of robbery, especially where firearms are used to threaten the victims, always leaves the victims traumatised. It is one of the most blatant and brazen invasions of privacy, as the armed perpetrators force their way into victims’ residential and business premises. Society rightly expects protection from the criminal justice system, even at the pre-trial stage. For this to happen, a prima facie case must be established against the accused concerned. The evidence need not be watertight, as a bail inquiry is not a trial.

It is therefore imperative for investigating officers to present to prosecutors information that constitutes a strong prima facie case, on the basis of which the latter is able to oppose bail, and on the basis of which the court can justifiably deny bail. This imperative is stronger in violent offences that pose a great risk to life such as armed robbery. The criminal justice system will be seriously undermined if accused persons arrested for such grave crimes are routinely released on bail. The reason for their release is that the State would have failed to substantiate the information on the Request for Remand Form, commonly referred to as Form 242.

This is the unfortunate scenario in casu. In the face of grave allegations of armed robbery, the facts placed before the court are such that the State’s opposition to bail has no leg to stand on. This has forced the State to climb down and concede to the granting of bail on conditions the court considers appropriate.

In the result, it is ordered that:

(a)The application for bail pending trial be and is hereby granted.

(a) Each applicant deposits bail in the sum of USD 100.00 at the equivalent prevailing bank rate with the clerk of court Harare Magistrates' Court.

(b) First and second applicants reside at House No.188317 Unit L Extension, Chitungwiza until the matter is finalised.

(c) The 3rd applicant resides at House No. 143 Domboramwari Extension, Epworth, Harare until the case is finalised.

(d) All the applicants do not interfere with investigations and witnesses of the prosecution until the matter is finalised.

(e) The first and second applicants report at Chitungwiza Police Station, and the third applicant at Epworth Police Station, once every Fridays between 6am and 6pm until the matter is finalised.

Maposa & Ndomene, applicant’s legal practitioners

National Prosecuting Authority, respondent's legal practitioners