S v Mlotshwa and others (Crim. Application 3 of 2026) [2026] ZWBHC 1 (2 January 2026)

3 HB 03/26 HCBCR 6235/25 IPHITHULE MLOTSHWA And HAMLET MLOTSHWA And HAWULEZWE MLOTSHWA Versus THE STATE IN THE HIGH COURT OF ZIMBABWE NDUNA J BULAWAYO 2 JANUARY 2026 Bail Application pending trial- virtual D Moyo, for the applicants V Moyo, for the respondent NDUNA J: The three applicants are members of the Zimbabwe National Army. They were arrested on allegations of robbery, it being alleged that in two counts the applicants committed offences of robbery against the complainants. The applicants deny the allegations in their entirety. At the time of the hearing, the State indicated that it was opposed to the application for bail. However, it had not yet filed its written submissions. When the written submissions were eventually received, they reflected a position to the effect that the State was, in fact, not opposed to the granting of bail. This change of attitude was never placed before the court. Had it been properly raised, the court would have proceeded to invite the State to clarify and address this altered position. Clearly, therefore, the State’s case on bail is fundamentally flawed. The State could not merely purport to oppose the application without placing a coherent and consistent position before the court. In the circumstances, it is proper to accept that the opposition was not meaningfully presented so as to enable the court to properly evaluate the State’s stance. The State’s oral submissions were confined to the following: that although the applicants are of fixed abode, are gainfully employed, and have not shown any propensity to interfere with witnesses, the State alleges that it has a strong prima facie case which may induce the applicants to abscond. The State further alleged that certain recoveries were made from the applicants, most notably a cell phone, which it claims links the applicants to the offence. On this basis alone, the State prayed that bail be denied. This position is wholly inconsistent with what is already on record, where the State clearly articulated that it was not opposed to the granting of bail. Upon closer scrutiny, the only alleged link between the applicants and the offence is the recovery of a cell phone from one of them. That cell phone, according to the applicant in whose possession it was found, was purchased from a named individual for the sum of USD60. Despite alleging that property was recovered from the applicants, the State failed to identify any such property beyond the said cell phone. The State case against the applicants is, therefore, patently weak and cannot form a sound basis for the refusal of bail. At its highest, the State’s case rests on possession of a cell phone allegedly stolen during the robbery. That possession has been reasonably explained. The applicants are all gainfully employed as soldiers and can be released on bail with conditions that ensure they remain at their respective places of employment. The Constitution of Zimbabwe guarantees that every person accused or suspected of committing an offence is presumed innocent until proven guilty. Whether or not the applicants committed the offences alleged is a matter for determination at trial. Until such determination is made, the presumption of innocence operates fully in their favour.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: - endanger the safety of the public or any particular person or will commit an offence; ornot stand their trial or appear to receive sentence; orattempt to influence or intimidate witnesses or to conceal or destroy evidence; orundermine or jeopardise the objectives or proper functioning of the criminal justice system; orthere is the likelihood that the release of the accused will disturb the public order or undermine public peace or security. It was held in S v Acheson1991 (2) SA 805 (Nm) at 822 A-B that; - “An accused person cannot be kept in detention pending his trial as a form of anticipatory punishment. The presumption of the law is that he is innocent until his guilt has been established in Court. The Court will therefore ordinarily grant bail to an accused person unless this is likely to prejudice the ends of justice” It was made quite clear in S vs Hussey 1991 (2) ZLR 187 (S) that:- where the State seeks to rely on one or more of these grounds when opposing bail, it is insufficient for the State merely to make bald assertions that the particular grounds applied. Its assertions must be well-grounded. It must produce cogent reasons why the particular ground in question applies and these reasons must be supported by proper information. In S vs Malumjwa HB-34-03 it was held that:- In bail applications the court has to strike a balance between the interest of society (that the applicant should stand trial and there should be no interference with the administration of justice) and the liberty of an accused person (who pending the outcome of his trial is presumed to be innocent). The court should, however, not refuse bail on the bare assertion of the State; there must be enough reason for such a conclusion. In other words, grounds for refusal of bail should be reasonably substantiated. It for these reasons that the state’s consent cannot be withdrawn. Further there is no reason why it was being withdrawn. The accused persons being in full time employment are entitled to be released on bail. However, there must be some conditions attached to their release which must be meant to enforce the accused persons’ availability for their trial. The following is accordingly ordered: - Each of the applicant is accordingly admitted to bail.Applicant to pay the sum of US$100.00 as bail recognizance, to be deposited with the Registrar High Court Bulawayo.Applicant is ordered not to interfere with witnesses and or investigations1st Applicant to reside at House number 1650 Nkulumane 5, Bulawayo.2nd and 3rd Applicants to reside at Plot number 8 Gwatemba village, Filabusi.Applicants to report at nearby Police Station, once every fortnight week on Fridays between the hours of 06:00am and 6:00pm until this matter is finalized. Tashaya Law Chambers, applicants’ legal practitioners National Prosecuting Authority, respondent’s legal practitioners 3 HB 03/26 HCBCR 6235/25 3 HB 03/26 HCBCR 6235/25 IPHITHULE MLOTSHWA And HAMLET MLOTSHWA And HAWULEZWE MLOTSHWA Versus THE STATE IN THE HIGH COURT OF ZIMBABWE NDUNA J BULAWAYO 2 JANUARY 2026 Bail Application pending trial- virtual D Moyo, for the applicants V Moyo, for the respondent NDUNA J: The three applicants are members of the Zimbabwe National Army. They were arrested on allegations of robbery, it being alleged that in two counts the applicants committed offences of robbery against the complainants. The applicants deny the allegations in their entirety. At the time of the hearing, the State indicated that it was opposed to the application for bail. However, it had not yet filed its written submissions. When the written submissions were eventually received, they reflected a position to the effect that the State was, in fact, not opposed to the granting of bail. This change of attitude was never placed before the court. Had it been properly raised, the court would have proceeded to invite the State to clarify and address this altered position. Clearly, therefore, the State’s case on bail is fundamentally flawed. The State could not merely purport to oppose the application without placing a coherent and consistent position before the court. In the circumstances, it is proper to accept that the opposition was not meaningfully presented so as to enable the court to properly evaluate the State’s stance. The State’s oral submissions were confined to the following: that although the applicants are of fixed abode, are gainfully employed, and have not shown any propensity to interfere with witnesses, the State alleges that it has a strong prima facie case which may induce the applicants to abscond. The State further alleged that certain recoveries were made from the applicants, most notably a cell phone, which it claims links the applicants to the offence. On this basis alone, the State prayed that bail be denied. This position is wholly inconsistent with what is already on record, where the State clearly articulated that it was not opposed to the granting of bail. Upon closer scrutiny, the only alleged link between the applicants and the offence is the recovery of a cell phone from one of them. That cell phone, according to the applicant in whose possession it was found, was purchased from a named individual for the sum of USD60. Despite alleging that property was recovered from the applicants, the State failed to identify any such property beyond the said cell phone. The State case against the applicants is, therefore, patently weak and cannot form a sound basis for the refusal of bail. At its highest, the State’s case rests on possession of a cell phone allegedly stolen during the robbery. That possession has been reasonably explained. The applicants are all gainfully employed as soldiers and can be released on bail with conditions that ensure they remain at their respective places of employment. The Constitution of Zimbabwe guarantees that every person accused or suspected of committing an offence is presumed innocent until proven guilty. Whether or not the applicants committed the offences alleged is a matter for determination at trial. Until such determination is made, the presumption of innocence operates fully in their favour.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: - endanger the safety of the public or any particular person or will commit an offence; or not stand their trial or appear to receive sentence; or attempt to influence or intimidate witnesses or to conceal or destroy evidence; or undermine or jeopardise the objectives or proper functioning of the criminal justice system; or there is the likelihood that the release of the accused will disturb the public order or undermine public peace or security. It was held in S v Acheson1991 (2) SA 805 (Nm) at 822 A-B that; - “An accused person cannot be kept in detention pending his trial as a form of anticipatory punishment. The presumption of the law is that he is innocent until his guilt has been established in Court. The Court will therefore ordinarily grant bail to an accused person unless this is likely to prejudice the ends of justice” It was made quite clear in S vs Hussey 1991 (2) ZLR 187 (S) that:- where the State seeks to rely on one or more of these grounds when opposing bail, it is insufficient for the State merely to make bald assertions that the particular grounds applied. Its assertions must be well-grounded. It must produce cogent reasons why the particular ground in question applies and these reasons must be supported by proper information. In S vs Malumjwa HB-34-03 it was held that:- In bail applications the court has to strike a balance between the interest of society (that the applicant should stand trial and there should be no interference with the administration of justice) and the liberty of an accused person (who pending the outcome of his trial is presumed to be innocent). The court should, however, not refuse bail on the bare assertion of the State; there must be enough reason for such a conclusion. In other words, grounds for refusal of bail should be reasonably substantiated. It for these reasons that the state’s consent cannot be withdrawn. Further there is no reason why it was being withdrawn. The accused persons being in full time employment are entitled to be released on bail. However, there must be some conditions attached to their release which must be meant to enforce the accused persons’ availability for their trial. The following is accordingly ordered: - Each of the applicant is accordingly admitted to bail. Applicant to pay the sum of US$100.00 as bail recognizance, to be deposited with the Registrar High Court Bulawayo. Applicant is ordered not to interfere with witnesses and or investigations 1st Applicant to reside at House number 1650 Nkulumane 5, Bulawayo. 2nd and 3rd Applicants to reside at Plot number 8 Gwatemba village, Filabusi. Applicants to report at nearby Police Station, once every fortnight week on Fridays between the hours of 06:00am and 6:00pm until this matter is finalized. Tashaya Law Chambers, applicants’ legal practitioners National Prosecuting Authority, respondent’s legal practitioners