Bongani Willard Dube v The State

On 23 June 2017, at Ndutshwa General Dealer's shop in Madlambuzi, the applicant had a confrontation with the deceased after the deceased attempted to pickpocket from him. According to the state, the applicant assaulted the deceased with fists and a knobkerrie all over his body until the deceased collapsed. The deceased succumbed to his injuries and died on 20 July 2017 at Mpilo Hospital. The applicant's version was that the deceased struck him first after being caught pickpocketing, leading to a fist fight. The applicant admitted punching and kicking the deceased but denied using a knobkerrie. After the assault, the applicant fled to South Africa. He heard of the deceased's death whilst in South Africa but did not surrender himself. He would occasionally return to Bulawayo but never went to Tsholotsho. Around December 2017, he contacted a lawyer about surrendering. Eventually, a full year and four days after the assault, the applicant surrendered himself to police at Plumtree accompanied by his lawyer. He was charged with murder and applied for bail.

• Whether the applicant was entitled to bail under section 50 of the Constitution of Zimbabwe Amendment (No. 20) Act, 2013
• Whether there were compelling reasons justifying the applicant's continued detention
• Whether the applicant posed a flight risk and was likely to abscond if granted bail
• Whether the applicant's voluntary surrender to police was sufficient to allay fears of absconding
• Whether granting bail would undermine or jeopardise the proper functioning of the criminal justice system

The bail application was dismissed.

The binding legal principle established is that: (1) An accused person's voluntary surrender to police, while relevant, is not determinative of their entitlement to bail; (2) In assessing flight risk under section 117(2)(a)(ii) and (iv) of the Criminal Procedure and Evidence Act, the court must consider whether the accused is trustworthy to stand the entire trial and return to receive sentence, not merely whether they will appear for the commencement of trial; (3) Past conduct demonstrating intentional evasion of justice, including fleeing the jurisdiction after a serious offence and remaining a fugitive despite knowledge of the victim's death, establishes a flight risk that the applicant must rebut on a balance of probabilities; (4) Constitutional provisions guaranteeing the right to bail must be balanced with the fundamental principle that proper administration of justice requires assurance that an accused will avail himself for trial; (5) The bail system is based on trust, and an applicant who has demonstrated untrustworthiness through prolonged fugitive status has not discharged the onus of showing he will not abscond or undermine the criminal justice system.

The court made non-binding observations that it would normally want to give the benefit of the doubt and trust an accused who surrenders himself to police, otherwise an impression should not be given that surrendering oneself has no benefit after all. The court also noted that both counsel had initially agreed the matter was likely to be reduced to culpable homicide, but the police later reneged on this indication. The court observed approvingly of the state's submission that the applicant 'wants the wheels of justice to grind according to his whims and at his own pace,' characterizing this as an apt description of the applicant's conduct. The court also commented that the applicant presented himself as someone who would 'keep his eyes open and his ear on the ground so that should things turn for the worse for him at any stage, he just skips into South Africa or any other neighbouring country and recoils into a shell like a snail whilst out of reach of the court's jurisdiction.'

This case is significant in Zimbabwean criminal procedure law as it clarifies that voluntary surrender to police, while a factor in favour of an applicant, is not automatically sufficient to entitle an accused to bail. The judgment emphasizes that courts must conduct a holistic assessment of an applicant's conduct and trustworthiness when evaluating flight risk. It demonstrates how constitutional rights to bail must be balanced against the need to ensure proper administration of justice. The case provides guidance on how courts should assess an accused's credibility and likelihood of standing trial based on their past conduct, particularly where they have previously fled the jurisdiction and remained a fugitive despite knowing of serious charges. It reinforces that the bail system is based on trust and that an applicant's history of evading justice can be determinative in bail applications.