Josphat Sibanda v The State

On 1 January 2022, the applicant allegedly caused the death of Constance Chitete by drowning her in a sewage pond. The allegations were that the two had a misunderstanding, and the accused drowned the deceased in the sewage pond. There were eyewitnesses who saw the accused push the deceased into the stream during the misunderstanding. The applicant was charged with murder and applied for bail pending trial.

• Whether the applicant was a suitable candidate for bail pending trial
• Whether there was a risk that the applicant would abscond if released on bail
• Whether the seriousness of the charge, strength of the state's case, and likely penalty justified refusing bail

The bail application was dismissed. The applicant was refused bail pending trial.

Where an applicant for bail faces a serious charge of murder, the state has a prima facie strong case with eyewitness evidence, and there is a high probability of conviction followed by a lengthy custodial sentence, the risk that the applicant will abscond can be inferred from ordinary human nature. In such circumstances, the applicant is not a suitable candidate for bail as releasing them would jeopardize the interests of justice by creating a substantial risk that they will not attend trial.

The court emphasized that while the presumption of innocence operates in the applicant's favour at the bail stage, this does not preclude the court from assessing the strength of the state's case and the probable outcome when determining flight risk. The court also noted that central to any bail determination is the certainty that the applicant will attend trial, and this consideration must guide the court's discretion in granting or refusing bail.

This case demonstrates the application of established bail principles in Zimbabwean criminal procedure, particularly the assessment of flight risk based on the seriousness of the charge, strength of the state's case, and likely penalty. It reaffirms that in murder cases with strong eyewitness evidence, the risk of absconding can be inferred from the probable lengthy custodial sentence, justifying the refusal of bail to protect the interests of justice.