Bail as a Constitutional right: Commentary on MUNSAKA F v STATE HB 55/16


The case of Munsaka F v State HB 55/16 is one such a case that has aligned the issue of bail with the Constitutional position as it currently stands.

The Applicant had been arrested by the Nyamadlovu Police on charges of rape. The allegations set out against him were noted on a Request for Remand Form 242 which stated:
“On January 2016 at stand 13 Goliths village Nyamandlovu the accused had sexual intercourse with the complainant twice without her consent and threatened to assault her if she tells anyone. The accused got into the complainant’s bedroom hut whilst she was asleep, closed her mouth and pinned her down and had sexual intercourse with her twice.”

Upon having appeared before the Court on the above charges, the accused was then remanded in custody.

The Applicant approached the High Court wherein it sought admission to bail pending trial. The basis of the application was that as mere suspect, the presumption of innocence was applicable to the Applicant. It was further advanced that he was thus entitled to his liberty especially due to the fact that he:
i. was of fixed abode
ii. had no travel documents and
iii. was not a flight risk.

In its opposition of the application, the State based its case on section 117(2) and (3) of the Criminal Procedure and Evidence Act Chapter 9:07.
The three grounds upon which it relied were as follows; that:
i. the applicant was likely to abscond;
ii. he was likely to endanger the safety of members of the public and
iii. was likely to interfere with witnesses.

The Court firstly noted that the State papers lacked clarity as to whether authority for his detention beyond 48 hours had been legitimately obtained if at all obtained.

In its determination, the Court stated that it was vital that what has been referred to as the “re-alignment of laws to the new constitution” be prioritized as it is paramount to ensuring the administration of justice and good order.

It was further held that the enactment of the new Constitution (Constitution of Zimbabwe Amendment (No. 20) Act) rendered the provisions of section 117 non-operative. In arriving at this conclusion, the primary rule of statutory interpretation which holds that “words of a statute must be given their ordinary grammatical meaning in trying to ascertain the intention of the legislature” was utilized.

The application of the above rule thereby dictates that it is only when the literal sense; if so applied, defeats the legislative intention that a deviation from the ordinary meaning can be allowed. Where such is however not the case, the Courts are to apply the rule as it stands. The court reasoned that it thus followed that by Constitutional enactment any arrested person is entitled to release on bail.

In arriving at the above mentioned position, the Court cited the case of S v Khumalo where it was held that the State cannot deny a person of their fundamental right of admission to bail without satisfying the requirement for denial of bail as it is set out in the Constitution.

The Constitution provides for the rights of detained and arrested persons and lists these under section 50(1). They read as follows; the right of an accused person to:
• be informed at the time of his/her arrest of the reason for their arrest,
• be permitted without delay, at the expense of the state, to contact
his/her partner or spouse or relative or legal practitioner or anyone
else of their choice
• at his/her own expense, consult in private with a legal practitioner
and/or medical practitioner of their choice and to be promptly
informed of this right.
• be treated with respect for their inherent human dignity and
• be permitted to challenge the lawfulness of the arrest in person
before a court and be released promptly if the arrest is unlawful.

Section 50(1) (d) is of particular importance for the purposes of this article. It reads that:
“any arrested person must be released unconditionally or on reasonable conditions, pending a charge or trial, unless there are compelling reasons justifying their continued detention.” The effect of this provision is therefore that arrested persons are entitled to be released on bail either conditionally or unconditionally.
In other words, the above provision confers a fundamental human right on arrested persons upon their arrest which directs that they be released on bail. The limitation of this right ensues only where the State proffers compelling reasons which substantiate the need for the continued detention of the arrested person.It is the State that thereby bears the onus of proving that there are legitimate and convincing reasons supported by evidence which justify the denial of bail.

In this regard, particular elements are taken into account in order to establish if such onus has been discharged by the State.

It was in the case of Ncube v The State, where the High Court stated that the State must demonstrate one or more of the following:
a) the risk and likelihood of the applicant absconding and not attending trial;
b) the likelihood to interfere with witnesses, investigation and evidence;
c) Applicant’s propensity to commit further offences.

It was stated that where a Court of law is faced with the issue of bail, it is paramount that its determination be made after having taken into account the circumstances of the given case and other factors such as the gravity or serious nature of the offence allegedly committed as well as the circumstances which surround the alleged offence.
The risk and likelihood of the applicant absconding and not attending trial.

In the Supreme Court decision of S v Jongwe, the honourable Court held that when judging the risk of abscondment the court ascribes to an accused “the ordinary motives and fears that sway human nature.”Further considerations to be taken into account when assessing the above risk include:
(a) the nature of the charges;
(b) the severity of the punishment likely to be imposed upon conviction;
(c) the apparent strength and weakness of the state case.

In the case of S v Chiadzwa 1988(2) ZLR 19 (S)a variety of factors were examined by the Court in assessing international flight risk. It was held that where a person is facing a serious charge which is likely to lead to lengthy incarceration, the evidence adduced against him is very strong and conviction is probable and that person has the capacity to leave the country, then such person would be a substantial risk for external flight.
Where there is evidence that there is a strong case established by the prosecution to the effect that a heavy sentence is likely, increasing the risk of the accused person absconding, the onus then falls on the applicant for bail to demonstrate that the interests of justice would not be prejudiced by such bail application being granted. This, meaning that the accused must show that he will stand his trial and therefore refrain from interference with the administration of justice.

Likelihood of commission of further offences.
The purpose for this element is to prevent any further criminal activities by a person pending trial. It is done in the interests of the public. If it is shown that the accused has a string of previous convictions this raises a substantial chance that he might commit further crimes while on bail. Likelihood of tampering with evidence or interfering with the administration of justice. The Supreme Court in the case of S v Hussey 1991 (2) ZLR 187 (S), held that the State has to lay down substantial evidence in proving this element than merely relying on bald assertions that the accused is likely to interfere with the witnesses who may be called by the State. The assertion must instead be a well-grounded one and the state is further obliged to place cogent reasons before the court, supported by information to justify such assertion. Where, for instance, the accused lives or works with the State witnesses this increases the likelihood of interference with the witnesses.

Prepared by Nomakhosi Masiye-Moyo