Albert Ncube v The State

On 24 March 2022 late at night, the applicant allegedly gained entry into the deceased's room by smashing the door. Once inside, he allegedly struck the deceased Emelia Ncube several times on the head with an axe, killing her. During the attack, he also allegedly struck Aaron Zulu on the head four times. Sandisiwe Ndlovu, who had jumped out of the house before the attack, returned with two men and saw the applicant standing on the verandah before he fled. She discovered her mother Emelia lying lifeless in a pool of blood. Aaron Zulu survived the attack with serious injuries. The applicant was arrested after fleeing from police officers who fired warning shots. He was facing a murder charge under section 47(1) of the Criminal Law (Codification and Reform) Act. Significantly, the applicant had a pending murder charge (Gwanda Urban CR 14/06/2020) and an outstanding warrant of arrest issued on 30 December 2020 for failure to appear in court. The applicant appeared at Gwanda Magistrates' Court on 4 May 2022 and was remanded in custody to 18 May 2022. He then applied for bail.

• Whether the applicant should be granted bail pending trial for a murder charge
• Whether the applicant is a flight risk given his outstanding warrant of arrest and alleged flight from police
• Whether the applicant's constitutional right to bail is outweighed by the interests of justice
• Whether an accused facing a similar charge whilst on bail and subject to a warrant of arrest is a suitable candidate for bail

The bail application was dismissed.

An accused person facing a serious charge (murder) is not a suitable candidate for bail where: (1) the state demonstrates by positive means that the accused has the propensity to abscond; (2) the accused is subject to an outstanding warrant of arrest for defaulting court on a similar charge; (3) the accused fled from police during arrest; and (4) the accused provides no explanation for the default or failure to cancel the warrant. To grant bail in such circumstances would be irresponsible and would jeopardize the interests of justice, notwithstanding the constitutional right to bail and the presumption of innocence. The purpose of bail is to balance the liberty of the accused with ensuring the accused stands trial, and the overriding consideration is that the interests of justice must not be compromised.

The court noted that although the presumption of innocence still operates in favour of the applicant, there may be compelling reasons for continued detention pending trial. The court observed that it is important to note that granting bail to an applicant whilst on the run and subject to a warrant of arrest has the effect of jeopardizing the interests of justice. The court implicitly suggested that had the applicant provided a reasonable explanation for the outstanding warrant or taken steps to cancel it, this might have been viewed differently. The court's reference to the applicant's concession that he fled when police came to arrest him (claiming he did not know they were police) and only stopped when warning shots were fired, suggests the court viewed this conduct as demonstrating flight risk beyond the mere existence of the warrant.

This case demonstrates the application of bail principles in Zimbabwean law where an accused faces serious charges while already subject to a warrant of arrest for a similar offence. It affirms that while the presumption of innocence operates in favor of an accused person, the interests of justice may require continued detention where there is positive evidence of flight risk, particularly where the accused has previously defaulted court and is subject to an outstanding warrant of arrest. The judgment emphasizes that granting bail in such circumstances would be irresponsible and would jeopardize the administration of justice. The case also illustrates the court's approach to balancing constitutional rights to liberty against public interest considerations in bail applications involving serious violent crimes.