Mvikezi Ncube and Khumbulani Ncube and Busani Ndlovu v The State

The three applicants were charged with kidnapping in contravention of section 93(1)(a) of the Criminal Law (Codification and Reform) Act. On 9 March 2015, they allegedly forced Edwin Makusha into their car (a Renault Scenic, registration TRF 509 GP) from his workplace at MIP Motors and drove him to Magwegwe and then to Solusi, depriving him of his freedom of movement. Along Solusi road, the applicants allegedly assaulted the complainant with a log all over his body several times. The complainant sustained injuries requiring hospitalization at Mpilo Hospital. The applicants denied kidnapping, claiming the complainant joined them voluntarily on a "joy ride." The second applicant stated he picked up the complainant and they drove around various suburbs before an altercation occurred. The alleged object of the kidnapping was to extort US$250.00 from the complainant's employer, to whom the second applicant claimed money was owed. A trial date had been set for 7 April 2015.

• Whether the applicants were suitable candidates for bail pending trial
• Whether the applicants provided a credible defence to the kidnapping allegations
• Whether the risk of absconding justified refusal of bail
• Whether the seriousness of the offence and strength of the State's case warranted refusal of bail

The application for bail was dismissed.

When applying for bail, an applicant must proffer a credible defence to the allegations rather than a bare denial. While applicants are not required to prove their defence at the bail stage, they must show they have a defence which is credible and which at trial would stand as a defence. A bare denial of allegations tends to show that applicants do not have a defence at all. Where an accused person has no defence to the allegations, he is more likely to be induced to abscond, whereas where an accused has a defence to the allegations, he is more likely to stand trial rather than abscond. On a balance of probabilities, applicants must demonstrate they are suitable candidates for bail, considering factors including: the seriousness of the offence, the strength of the State's case, the likelihood of a custodial sentence upon conviction, the risk of absconding, and whether a trial date has been set.

The court observed that the applicants did not disclose to the court the circumstances under which the complainant ended up in the motor vehicle, noting rhetorically: "If the complainant went on a joy-ride of his own free will and without any undue pressure being brought upon him why would he allege that he was kidnapped? If the complainant was a willing participant why was he assaulted?" The court also noted that the complainant had no reason to lie against the accused persons, and that the object of the alleged kidnapping was to extort money from the complainant's employer.

This case illustrates the application of established bail principles in Zimbabwean criminal procedure, particularly regarding the requirement that applicants for bail must provide credible defences rather than bare denials when facing serious charges. It demonstrates how courts assess the risk of absconding in relation to the strength of the defence presented, and reaffirms that the quality of an accused's defence is a relevant factor in bail considerations. The case also highlights that the seriousness of the offence, proximity of trial date, and strength of the State's case are important factors in the bail determination process.