Mthokozisi Ncube v The State

The applicant, aged 22 years, was arrested on 25 January 2018 following a police raid at a hide-out in Emganwini, Bulawayo after a tip-off from members of the public. He was jointly charged with two co-accused on 5 counts of robbery (one involving use of a firearm) and one count of theft from a motor vehicle. His trial had already commenced on 12 April 2018 at the magistrates court. He approached the High Court seeking bail mid-trial due to prison authorities experiencing logistical challenges in bringing detained accused persons to court. The robbery charges involved targeting illegal foreign currency dealers at their homes between July 2017 and January 2018. The accused allegedly used a consistent modus operandi of waylaying victims at their homes, sometimes using firearms. In count one, they fired shots and broke a car window to rob a woman of R2000 and $7,800. Other counts involved similar robberies of substantial sums of money. At the time of arrest, members of the public were baying for the accused's blood and required police intervention for their safety. The firearm used in count one had not been recovered.

• Whether the applicant had discharged the onus of showing, on a balance of probabilities, that it is in the interests of justice for him to be released on bail pending trial
• Whether there were compelling reasons to deny bail under section 115C read with section 117(2) of the Criminal Procedure and Evidence Act
• Whether the applicant posed a risk of committing further offences if released on bail
• Whether the applicant posed a risk of interfering with or intimidating witnesses
• Whether logistical challenges faced by prison authorities in transporting accused persons to court constituted sufficient grounds for granting bail mid-trial

The bail application was dismissed. The applicant was to remain in custody pending the completion of his trial.

Where an accused is charged with robbery involving use of a firearm (a Third Schedule offence under Part I), the accused bears the onus under section 115C(2)(a)(ii) 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. Compelling reasons for denial of bail exist under section 115C read with section 117(2) where: (1) there is a likelihood the accused will commit further offences, evidenced by multiple similar charges showing a propensity for such offences and a consistent modus operandi; (2) a firearm used in the alleged offences has not been recovered and remains available for potential further criminal use; (3) there is a high risk of witness interference or intimidation where the accused knows the addresses of complainants through the planning and surveillance involved in the offences; and (4) the nature and seriousness of the offences indicate potential danger to public safety. Temporary logistical challenges faced by prison authorities in transporting accused persons to court do not override compelling reasons for detention where the interests of justice require custody.

The court observed that the logistical problems experienced by prison authorities in transporting accused persons to court "cannot possibly be permanent or enduring" but are rather "a temporary setback which will soon be overcome." The court also noted that because the trial had already commenced, there was no likelihood of lengthy pre-trial incarceration. The court commented that at the time of the accused's arrest, members of the public and possibly victims were baying for their blood and it took timely police intervention to save them, suggesting that if released the applicant's safety could not be guaranteed. The court noted that the applicant's attorney only attacked the state's evidence as weak on the basis of allegedly flawed identification procedures following publication of photographs in the Chronicle Newspaper before an identification parade was held, but did not find this argument persuasive in the bail context.

This case illustrates the application of Zimbabwe's strict bail provisions under section 115C of the Criminal Procedure and Evidence Act for offences listed in the Third Schedule (particularly robbery involving firearms). It demonstrates the reverse onus placed on accused persons charged with serious scheduled offences to prove on a balance of probabilities that their release is in the interests of justice. The case also addresses the principle that temporary logistical challenges faced by the state (such as transportation difficulties) do not constitute sufficient grounds for granting bail where compelling reasons for detention exist. The judgment reinforces that courts will consider multiple factors including propensity to commit further offences (evidenced by a pattern of conduct), risk of witness interference, and public safety when determining bail applications for serious violent crimes. It also confirms that bail applications can be brought mid-trial but the same stringent tests apply.