Brighten Nkomo v The State

The applicant was charged with armed robbery allegedly occurring on 13 February 2009 at the 60km peg along Beitbridge-Masvingo Highway. It was alleged that he used violence to induce the complainant to part with property including two mobile phones, a sim card, and R14,600 cash. The applicant was a Zimbabwean residing and working in South Africa for the past 12 years and held a valid passport. He argued he had never used the Beitbridge-Masvingo road and challenged the validity of the identification parade, alleging he was brought barefooted to the charge office and asked to put on his shoes in the complainant's presence. There were also discrepancies in the State's case regarding the description of the vehicle used (VW Jetta vs VW Golf). The applicant had voluntarily gone to the police station when his car was embargoed.

• Whether the applicant should be granted bail in light of the serious charge faced
• Whether the applicant was likely to abscond given his South African residency
• Whether the identification parade was properly conducted and the impact of irregularities on the strength of the State's case
• The factors to be considered under section 117(3)(b) of the Criminal Procedure and Evidence Act [Chapter 9:07] in determining bail

The applicant was granted bail on the following conditions: (i) deposit of US$200 with the Registrar, High Court, Bulawayo; (ii) surrender of travel documents; (iii) reporting three times weekly (Mondays, Wednesdays, Fridays) at ZRP Nkulumane between 6am-6pm; (iv) residence at house number 108 Nkulumane, Bulawayo until trial finalization; (v) non-interference with State witnesses; and (vi) surrender of Title Deed number 1546/87 for house number 1378 Mbizo Township, Kwekwe to the Registrar's office.

An identification parade must be conducted in a manner that excludes the possibility of bias or unfairness; where an identification has been made easier by police conduct, whether conscious or otherwise, such proceedings should be condemned and carry less probative weight. In bail applications involving serious charges, the strength or weakness of the State's case is a crucial factor in determining the likelihood of absconding. Where the State's case is weak (such as due to irregular identification procedures), the incentive for an accused to abscond is diminished, and bail should be considered favorably. An applicant for bail must prove on a balance of probabilities that facts exist rendering it unlikely that he will abscond or interfere with the administration of justice, considering factors including: (i) nature of charge and severity of punishment; (ii) strength or weakness of State case; (iii) ability to reach another country and extradition facilities; (iv) previous behaviour; and (v) credibility of assurances to stand trial.

The court made general observations about the importance of proper identification parade procedures, stating that "great care should be employed when identifying a suspect" and that "confidence and sincerity are not enough" given the possibility of mistakes, especially where the witness has not previously known the person. The court emphasized that identification parades should be "a procedure where a complainant or witness should independently identify the suspect or the wrong doer without being given a clue." The court also noted that voluntary attendance at a police station is "not the behaviour of a guilty mind" and is a factor that cannot be ignored in bail applications. The judgment contains broader commentary on the need for fairness in police investigative procedures and the courts' duty to ensure proper administration of justice.

This case is significant for establishing important principles regarding the proper conduct of identification parades in Zimbabwe and the approach to bail applications where serious charges are involved. It emphasizes that courts must scrutinize police investigative procedures, particularly identification parades, and that irregularities in such procedures can significantly weaken the State's case. The judgment reinforces that even in serious criminal cases, bail should not be automatically refused, and the strength or weakness of the State's case is a critical factor in assessing flight risk. The case also demonstrates the application of the factors set out in Aitken v Attorney General and S v Jongwe in bail determinations, particularly balancing the seriousness of charges against other factors such as voluntary cooperation with authorities and weakness in the prosecution's case.