Last Ncube v The State

On 23 April 2018, the applicant allegedly broke into the complainant's house while she was asleep around 2300 hours. He allegedly threatened her with an okapi knife, tied her hands with a bed sheet, and raped her once. He then stole property including two mobile phones (a Samsung gold and a Blackberry), US$120, a DVD player and discs, placing them in the complainant's small khaki handbag before fleeing through a window. Upon his arrest, the applicant was found in possession of the stolen items including the okapi knife. When questioned by police about the mobile phones, DVD player and discs, he claimed to have been in love with the complainant. The applicant faced charges of unlawful entry into premises (section 131 of the Criminal Law Codification and Reform Act) and rape (section 65(1) of the Criminal Code). He applied for bail pending trial.

• Whether compelling reasons existed to justify the applicant's continued detention and denial of bail
• Whether there was a risk of the applicant absconding if released on bail
• Whether the interests of justice would be compromised by granting bail
• The weight to be given to the seriousness of the charges and the strength of the state's case in bail applications

The bail application was dismissed. The applicant was to remain in custody pending trial.

Despite the constitutional right to bail under section 50 of the Constitution of Zimbabwe (Amendment No. 20) 2013, bail may be denied where compelling reasons exist justifying continued detention. When assessing bail applications, courts must consider: (1) the nature and seriousness of the charges; (2) the severity of the punishment likely upon conviction; (3) the strength of the state's case; and (4) the risk of absconding. A strong state case combined with serious charges creating potential for severe punishment constitutes a compelling reason to deny bail as it creates a motivation for the accused to abscond. The interests of justice may require denial of bail even where bail is constitutionally presumed, provided the state discharges its heavy onus of demonstrating cogent reasons supported by evidence.

The court observed that while accused persons are presumed innocent until proven guilty, this presumption does not automatically entitle them to bail where the interests of justice would be compromised. The court noted, citing State v Ndhlovu 2001 (2) ZLR 261 (H), that it is desirable for an accused person to lay before the bail court what their defence will be at trial, as this has a bearing on their assurance that they will indeed stand trial. The court remarked that the applicant's failure to proffer any defence in his bail statement left the state's case unshaken, which was a relevant consideration in assessing the application. The court also referenced the principle from S v Jongwe that in judging the risk of abscondment, the court ascribes to an accused 'the ordinary motives and fears that sway human nature.'

This case illustrates the application of Zimbabwe's constitutional bail provisions following the 2013 constitutional amendments, which elevated bail to a fundamental right while still allowing courts to deny bail where compelling reasons exist. The judgment demonstrates the balancing exercise courts must undertake between constitutional rights and the interests of justice, particularly in serious criminal cases involving violent offences. It reinforces that despite the constitutional shift making bail the norm and detention the exception, courts retain discretion to refuse bail where the nature of the charges, strength of the state's case, and risk of absconding are sufficiently compelling. The case also emphasizes the continuing importance of an applicant disclosing their intended defence in bail applications as a factor affecting the court's assessment of their likelihood to stand trial.