Nhlanhla Mlalazi v The State

The applicant was arrested on 10 July 2017 and charged with murder as defined in section 47 of the Criminal Law (Codification and Reform) Act. The State alleged that on 20 September 2016, the applicant and two accomplices (still at large) robbed and killed Vusumuzi Mhlanga at a tuckshop located at Ndlovu Syndicate Mine in Matobo. The deceased was asleep with his girlfriend when the three arrived. The applicant allegedly used an axe to chop off the wooden door to gain entry, then struck the deceased twice on the head with the axe, inflicting fatal chop wounds. They robbed the deceased and his girlfriend of cash amounting to $263. The applicant evaded arrest for approximately 10 months until police received a tip-off and arrested him at a tent in the bushy area of Nugget Mine on 9/10 July 2017. Upon arrest, he resisted violently, fought with police officers, and gave a false name (Terence Ncube). The applicant was 26 years old, unemployed, residing at New Lobengula in Bulawayo, and had no travel documents. He was also facing another attempted murder charge at Esigodini for stabbing Chrispen Ncube.

• Whether the applicant discharged the onus under section 115C of the Criminal Procedure and Evidence Act to show on a balance of probabilities that it is in the interest of justice that he be admitted to bail
• Whether exceptional circumstances existed to permit the release on bail of an applicant charged with planned or premeditated murder committed during aggravated robbery
• Whether there were compelling reasons under section 50 of the Constitution to refuse bail, particularly the likelihood of abscondment
• Whether the applicant posed a flight risk given his conduct of evading arrest for 10 months, resisting arrest, and providing false information

The application for bail was dismissed.

Where an applicant for bail is charged with murder under section 47 of the Criminal Law (Codification and Reform) Act, a Third Schedule offence, the applicant bears the onus under section 115C of the Criminal Procedure and Evidence Act to show on a balance of probabilities that it is in the interest of justice to be admitted to bail. Where the murder is planned, premeditated, or committed during aggravated robbery, section 115C imposes an additional burden requiring the applicant to demonstrate exceptional circumstances exist to permit release on bail. Conduct demonstrating evasion of arrest for an extended period, violent resistance to arrest, and providing false identification information constitutes compelling evidence of flight risk and failure to discharge the onus for bail, justifying refusal of bail to secure the accused for trial.

The court observed that the applicant "has no respect for the law" based on his pattern of conduct, and stated that he "certainly will do anything to avoid standing trial." The court noted that "the applicant is not to be entrusted with his freedom under the circumstances," reflecting a broader concern about public safety and the integrity of the criminal justice process beyond the strict legal tests for bail.

This case demonstrates the application of the stringent bail provisions under section 115C of the Criminal Procedure and Evidence Act for Third Schedule offences (murder), particularly where the murder is premeditated or committed during aggravated robbery. It illustrates how Zimbabwean courts balance the constitutional right to bail under section 50 of the Constitution against compelling reasons for continued detention, specifically the risk of abscondment. The case emphasizes that an applicant's conduct before and during arrest (evading arrest, resisting police, providing false information) is highly relevant in assessing flight risk and whether exceptional circumstances exist for bail. It reinforces that the burden on applicants charged with serious, premeditated offences is substantial and requires clear evidence to overcome the presumption against bail.