Onus of proof (Zimbabwe)

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After the State has led sufficient evidence to show that there is a real likelihood that the administration of justice will be prejudiced if X is admitted to bail, the onus lies on the person applying for bail to show on a balance of probabilities that his admission to bail would not prejudice the interests of justice: Chiadzwa 1988 (2) ZLR 19 (S); Maharaj 1976 (3) SA 205 (D) and Hudson 1980 (4) SA 145 (D). In bail applications both sides may make submissions from the bar, or lead evidence. Evidence should be led in support of any fact which is in dispute.

In Ncube S-126-01 the court said that the onus (the quantum of which varies from case to case) is on the accused to show why he should be granted bail. He can discharge this onus by calling witnesses to show that the allegations against him are unfounded. Failure by the court to allow him to call such evidence is a serious misdirection, one which would allow the Supreme Court to interfere with a decision of a judge of the High Court to refuse bail. This was reiterated in the case of Biti HH-23-02.

In Ndhlovu 2001 (2) ZLR 261 (H) the court stated that once the police have made credible allegations against the accused, which could provide grounds for refusing bail, the onus is then on the accused to prove on the balance of probability that the court should exercise its discretion in favour of granting him bail. He must show that it is likely that he will stand trial and that he will not otherwise interfere with the administration of justice or commit an offence. On the other hand, Kureneri HH-111-04 by the judge held that there is no statutory authority for placing an onus upon an applicant for bail, and that prior rulings to that effect were based on South African cases. These are based on a statute which is materially different from the Zimbabwean legislation. In arriving at the decision, the learned Judge held that Section 13(4) of the Constitution requires that any person who is arrested or detained should be tried within a reasonable time, failing which he or she should be released from custody. In other words, the discretionary power of a judge or magistrate to deny bail may not be exercised in violation of the accused's constitutional right to be brought to trial within a reasonable time or be freed from custody. What is in dispute is whether there is an onus on the accused person to show on a balance of probabilities why it is in the interest of justice that he should be freed on bail. Decisions of the superior courts of Zimbabwe have followed decisions of the South African courts, but the South African provisions are not worded the same as the Zimbabwean ones. The notion of the accused having an onus to discharge to enable him or her to be admitted to bail is not part of our law as legislated. The constitutional presumption of innocence in bail application operates fully and at the general level. It is because of the presumption of innocence that the courts are expected, and indeed required, to lean in favour of the liberty of the accused. If the state's fears of abscondment or interference with witnesses and the applicant's assurances to the contrary are equally balanced, then the presumption of innocence would require the court to lean in favour of the liberty of the accused person and grant bail.

See Zimbabwe Criminal Defense Manual