Derrick Nkomo v The State

The applicant, Derrick Nkomo, was charged with two counts of robbery as defined in section 126 of the Criminal Law (Codification and Reform) Act. In count one, on 15 March 2021 at approximately 1520 hours, the applicant and accomplices went to number 5 Coleridge Road, Malindela, Bulawayo armed with a firearm, handcuffs and a knife. They kidnapped two children playing outside, dumped them at Ascot shopping centre, returned to the house and demanded cash and gold, robbing the complainants of US$700.00 cash, an HP laptop, iPhone, Samsung A2 core cellphone, Samsung Tablet and whisky. In count two, on 22 March 2021 at about 0030 hours, the applicant and accomplices went to Fools Mine, Hope Fountain, Bulawayo armed with a firearm, threatened a security guard, disarmed him of his service pistol (a 38 SPL Revolver serial number AA330959 with no ammunition), robbed him of his cellphone, and robbed another complainant of a cellphone, Lenovo laptop, two pairs of formal shoes, formal trousers and ZWL 1000.00 cash. The investigating officer informed applicant's wife in August 2021 that he was looking for the applicant, but the applicant only surrendered himself to police on 24 January 2022, approximately six months later.

• Whether the applicant discharged the onus of proving on a balance of probabilities that it is in the interests of justice that he be released on bail pending trial in terms of section 115C(2)(a)(ii)(A) of the Criminal Procedure and Evidence Act
• Whether the applicant poses a flight risk given the seriousness of the charges and likely penalty
• Whether the applicant is likely to commit further offences if released on bail
• Whether stringent bail conditions would be sufficient to address the interests of justice

The application for bail was dismissed and the applicant was ordered to remain in custody pending trial.

In bail applications involving Schedule 3 offences (robbery with a firearm), the applicant bears the onus under section 115C(2)(a)(ii)(A) of the Criminal Procedure and Evidence Act to prove on a balance of probabilities that it is in the interests of justice to be released on bail. Where there is strong prima facie evidence against an accused facing very serious charges carrying likely severe imprisonment, and the accused has demonstrated a propensity to commit similar offences (facing multiple armed robbery charges), the prospect of a long prison term creates a real and strong incentive to abscond. In such circumstances, releasing the accused on bail would undermine the objective and proper functioning of the criminal justice system and bring it into serious disrepute, and no bail conditions, however stringent, can remedy this fundamental objection to the grant of bail. Delayed voluntary surrender (six months after being notified police were seeking the accused) carries little weight in negating flight risk.

The court observed that the fact there was no identification parade at that stage of proceedings was inconsequential where the State's case was not based on identification at the scene but on implication by accomplices and alleged admissions by the accused. The court also noted that the fact nothing was recovered from the accused personally did not detract from other evidence linking him to the commission of the crimes. The court commented that stringent bail conditions may only be effective where the release on bail itself will not jeopardize the criminal justice system, but not where such release would bring the system into serious disrepute. The court expressed the view that releasing the applicant would be "tantamount to approving his deeds and giving him a green light to continue his armed robbery spree."

This case is significant in Zimbabwean bail jurisprudence as it demonstrates the strict approach courts take to bail applications involving Schedule 3 offences, particularly armed robbery. It illustrates the elevated burden on accused persons to prove it is in the interests of justice to grant bail when facing serious crimes involving firearms. The judgment emphasizes that courts will consider: (1) the strength of the prima facie case against the accused; (2) the gravity of the offence and likely penalty as creating incentive to abscond; (3) the propensity to commit further offences based on multiple similar charges; (4) the insufficient weight given to delayed voluntary surrender; and (5) that stringent bail conditions cannot cure a situation where the release itself would bring the criminal justice system into disrepute. The case reinforces the legislative policy of curbing serious crime and preventing accused persons from evading justice by setting a high bar for bail in armed robbery cases.