Mhlupheki Ncube v The State

The applicant, a 28-year-old man residing at Queens Mine Compound, Madala Site in Inyathi, was arrested on 24 May 2018 and charged with murder. The state alleged that on 10 May 2018, in the company of one Herbert Maseko (still at large), he proceeded to Queens West Mine carbon tanks guarded by security guard December Ndlela. They allegedly assaulted the security guard on the head with an unknown object and set his legs on fire. After the fatal attack, they cut the carbon room padlocks, stole carbon, and escaped leaving the deceased unconscious. The deceased was found at about 0200 hours on 10 May 2018 lying on the ground unconscious with clothes soaked in blood and legs burning. He was taken to Inyathi Hospital, transferred to Mpilo Hospital in Bulawayo, where he died the following day. The applicant's arrest came two weeks after the offence was committed, following information from one of his potential accomplices who had initially been part of the gang but withdrew.

• Whether the applicant should be admitted to bail pending trial
• Whether the applicant discharged the onus under section 115C of the Criminal Procedure and Evidence Act to show that it is in the interests of justice that he be admitted to bail
• Whether exceptional circumstances exist to permit release on bail for murder committed during aggravated robbery
• Whether there is a likelihood of abscondment, interference with witnesses, or endangerment of public safety if bail is granted

The application for bail pending trial was dismissed.

For a Third Schedule offence of murder committed during aggravated robbery, an applicant for bail bears the onus of proving on a balance of probabilities both that it is in the interests of justice to grant bail and that exceptional circumstances exist permitting release. The likelihood of witness interference and endangerment of witness safety constitutes a compelling reason under section 50 of the Constitution to refuse bail. Where an applicant fails to discharge the statutory onus under section 115C of the Criminal Procedure and Evidence Act and fails to allay genuine concerns about witness interference and safety, bail must be refused. The court will consider it irresponsible to grant bail where there is a high and real likelihood that the applicant will interfere with witnesses known to him who fear him, particularly where those witnesses provided crucial information leading to his arrest.

The court observed that it is now settled that compelling reasons which satisfy the provisions of section 50 of the Constitution to refuse bail include likelihood of abscondment if released on bail, endangerment of the safety of members of the public, or likelihood of interference with witnesses. The court referenced its earlier decision in S v Mlalazi HB 245-17 regarding the interpretation of section 115C requirements.

This case demonstrates the application of section 115C of the Criminal Procedure and Evidence Act in Zimbabwe concerning bail applications for Third Schedule offences, particularly murder committed during aggravated robbery. It emphasizes the heightened burden on applicants to show exceptional circumstances and that it is in the interests of justice to grant bail. The case illustrates how courts balance constitutional rights (the presumption of innocence and right to bail under section 50 and 70(1)(a) of the Constitution) against compelling reasons to refuse bail, including risk of witness interference, public safety concerns, and abscondment where the accused faces capital punishment. It reinforces that bail statements must substantively address concerns raised by the state and that courts will not grant bail where there is a real and high risk of witness interference or endangerment.