Bhekilizwe Ndlovu and Others v The State

On 5 February 2021, at Warmaley Stamping Mill, Mpoengs area, Plumtree, the three applicants (Bhekilizwe Ndlovu, Philani Lunga, and Bongani Mpofu) were arrested and charged with two counts of robbery. They were allegedly part of a group that used violence, armed with knives and machetes, to rob three complainants of various properties including a grinding machine, welding machine, generator battery, fuel, cellphones, cash (R17,600 and R250), and 14 grams of gold ore, with total value of ZWL 3,836,481.00. The group used a Nissan Navara vehicle as a getaway car, which was identified by one of the complainants (Justice Moyo) who alerted police at a roadblock along Bulawayo-Kezi highway. When applicants saw the police roadblock, they attempted to flee but were apprehended, though some accomplices escaped. Upon arrest, police recovered a car battery, grinding machine, spanners, and car radios, which were identified by complainants. The first applicant, Bhekilizwe Ndlovu, had a pending similar case at Esigodini Magistrate's Court (CRB ESG 661-3/20) and was allegedly on bail when this offence was committed. Charges were withdrawn against co-accused Onasis Sithole (the driver) and Othis Sithole, who were to be used as state witnesses.

• Whether the applicants should be granted bail pending trial
• Whether there was a likelihood that applicants would abscond and not stand trial if released on bail
• Whether the interests of justice permitted the release of applicants on bail
• Whether the strength of the state's case and severity of potential sentence constituted grounds for refusing bail
• Whether applicants' attempted flight from police and commission of offence while on bail were relevant factors in the bail determination

The application for bail was dismissed.

Where an accused faces serious criminal charges (such as robbery) with a strong prima facie case against them, and where the likely sentence upon conviction would be lengthy imprisonment, there is a likelihood that the accused will abscond if granted bail. This likelihood is reinforced where: (1) the accused attempted to flee from police before arrest; (2) the accused committed the alleged offence while on bail for a similar pending matter; and (3) the state has recovered evidence linking the accused to the crime and has identified witnesses. In such circumstances, the interests of justice require that bail be refused under section 117(2)(a)(ii) of the Criminal Procedure and Evidence Act [9:07]. A 'likelihood' requires proof on a balance of probabilities, not mere suspicion or possibility. The cumulative effect of multiple risk factors must be considered in determining whether the interests of justice permit release on bail.

The court noted that granting bail in circumstances where there is a clear flight risk would undermine the objectives of the bail system and the criminal justice system generally, and would lead to the public losing confidence in the bail system. The court also observed that where there is a cognisable indication that an accused would evade trial if released from custody, the liberty of the accused must give way to the proper administration of justice. The court referenced that the trial had been set down for 31 March 2021 at Plumtree Regional Court, suggesting the matter would proceed expeditiously. The court also noted that only the first applicant (Bhekilizwe Ndlovu) had a pending case at Esigodini, while the other two applicants did not, though this distinction did not ultimately affect the bail decision given the other factors present.

This case illustrates the Zimbabwean High Court's approach to bail applications in serious criminal matters, particularly robbery cases. It demonstrates that courts will refuse bail where there is a likelihood (on a balance of probabilities, not mere possibility) that accused persons will abscond. The judgment reinforces that multiple factors must be weighed cumulatively, including: the strength of the state's case, the seriousness of the offence and likely sentence, the accused's conduct before and after arrest (such as attempting to flee), and commission of offences while on bail for similar matters. The case emphasizes that the interests of justice and public confidence in the criminal justice system may outweigh an accused's right to personal freedom pending trial.