2
2 Mr. Moyo put up an affidavit dealing with the circumstances giving rise to the
charge and his personal circumstances. The State answered with its own
affidavit, deposed to by the investigating officer.
3 On the strength of these two affidavits, the Magistrate below refused bail,
apparently on the bases that there is a strong prima facie case against Mr.
Moyo, that Mr. Moyo is a flight risk, and that Mr. Moyo should continue to be
detained for his own safety.
4 Mr. Moyo then appealed. His appeal was enrolled before me on 7 January
2025. I upheld the appeal, set aside the Magistrate’s decision, and substituted it for an order releasing Mr. Moyo on bail, subject to conditions which were, for the most part, agreed between the parties. I intimated at the time I made my order that my reasons would follow in due course. These are my reasons.
The State’s case
5 There is nothing on the record that so much as outlines what the State’s case
is – let alone material that would have permitted the Magistrate to form a view
of its strength. The charge sheet gives no particulars of the offence, save to
assert that it involves a sum exceeding R500 000. The absence of particularity
was neither addressed nor remedied in the investigating officer’s affidavit opposing bail.
6 By contrast, Mr. Moyo gives a detailed, if at times obscure, account of the facts
that he believes gave rise to the charge. He says that the charge arose from
the execution of his duties as a financial administrator for his church. The church wanted to purchase land in De Duer, and there appears to have been
3
a disagreement about the handling of the money procured for that purpose.
The leader of a church faction hostile to Mr. Moyo laid a charge of fraud
against him. Mr. Moyo says that the charge was malicious and without substance.
7 Whether or not that turns out to be true, it was the only admissible factual
version relating to the nature of the case against Mr. Moyo placed before the Magistrate. Not a word of the investigating officer’s affidavit opposing bail addresses it, and no attempt was made to supplement the State’s case in light of it. The Magistrate might have been swayed by the public prosecutor’s
assurances from the bar that the State’s case is very strong. If she was, that was a mistake. The unsupported assertions of an advocate pleading his case should not be mistaken for evidence. Here, it is the evidence that counted, and the State’s case was extraordinarily light on it.
8 Accordingly, the Magistrate’s conclusion in her judgment refusing bail that
“the state has a strong prima facie case against the applicant” lacks any
discernible factual substrate on the record. As things stand, the situation is quite the reverse. There is nothing on the record that indicates what the State’s case really is, but there is a fundamentally coherent allegation from Mr. Moyo that the complaint against him is malicious.
Whether Mr. Moyo will stand his trial
9 Mr. Moyo is a Zimbabwean national. He lives in South Africa with his wife and
two children. His wife is employed at a major South African insurance
company. Mr. Moyo is not presently employed, largely, it seems, because he does not have the right to work in South Africa. Mr. Moyo instead has a three-
4
year multiple-entry temporary residence permit. That permit expired in
October 2024, but not before Mr. Moyo applied to renew it in September 2024. The permit was issued under section 11 (6) of the Immigration Act 13 of 2002, which provides for the issuance of temporary residence permits to spouses of
South African citizens and permanent residents. From that, it may safely be inferred that Mrs. Moyo is a South African citizen or permanent resident. It is also likely that Mr. and Mrs. Moyo’s children were born in South Africa and are South African citizens.
10 In light of all these facts, it might have been concluded that Mr. Moyo presents
no serious flight risk. He is married to a South African, has two South African
children, and, purely on the strength of his temporary residence permit, it can be inferred that he has lived here for at least three years. His affidavit also discloses that he has substantial moveable but illiquid assets in South Africa, which he would probably have to leave behind if he fled the jurisdiction.
11 There are also the uncontested facts that Mr. Moyo knew about the complaint
laid against him and the existence of the investigation into it for at least six months before he was arrested; that he co-operated fully with that investigation, including by giving a statement under warning in April 2024; and that Mr. Moyo arrived at the police station under his own steam immediately before his arrest. None of this is consistent with the proposition that Mr. Moyo presents an appreciable flight risk.
12 Against all this, however, the Magistrate concluded that “if Mr. Moyo is
convicted, punishment can be an incentive to abscond, so there is a possibility of a flight risk, he can go back to Zimbabwe”. This conclusion was plainly
5
unsustainable, because it ignored the substantial evidence of Mr. Moyo’s ties
to his home and family in South Africa , the negligible prospects of conviction
on the evidence before the Magistrate at the stage of the bail application , and
Mr. Moyo’s co-operation with the police for months before his arrest.
Mr. Moyo’s safety
13 In what appears to be a rhetorical flourish at the end of her judgment ex
tempore, the Magistrate observes that “the gallery is full of community
members and it is the court's opinion that it might be a safety risk for the
applicant”.
14 It is hard to know what to make of this. I am in the first place constrained to
point out that cases are decided on the evidence, not on the presiding officer’s subjective observations of the public gallery. In any event, a high level of public interest in a case does not in itself demonstrate a risk to the accused. The Magistrate does not record – and probably did not know – who was in the public gallery and why they were there. They might have been there in support Mr Moyo. They might have harboured animosity toward him. They were likely just curious.
15 A court should not detain an accused person against their will merely because
it is alleged that they would be in danger if released. Detention for an accused person’s safety will seldom be appropriate. If it ever is, such detention may only be authorised after anxious consideration, where there is clear evidence
of an imminent and acute risk of death or serious injury, only for so long as that risk endures, and only where the risk cannot be ameliorated by the
7
HEARD ON: 7 January 2025

DECIDED ON: 9 January 2025

For the Appellant: T Paile
Instructed by ET Paile Attorneys Inc
For the Respondent MB Mchunu
Instructed by the National Prosecuting Authority