Nkosana Ncube v The State

The applicant was charged with murder as defined in section 47 of the Criminal Law (Codification and Reform) Act, Chapter 9:23. It was alleged that the applicant and three others were hired by one Mlamuleli Ncube for US$250 to kill the deceased, Remember Moyo, and Nomalanga Sibanda, who were competitors in a gold buying enterprise. On 16 January 2021 at around 1600 hours, the applicant and his accomplices followed the deceased and Nomalanga from Ncema river and caught up with them at Mzingwane river. They assaulted both victims with machetes, axes and a crow bar before stealing thirty grams of alluvial gold, US$900, ZWD 3000, an ITEL cellphone and Nomalanga's identity documents. Nomalanga survived the attack but the deceased succumbed to his injuries the following day at Mpilo hospital. The applicant evaded arrest for approximately 5 months, staying in the bush. When police finally located him in May 2021 at around 2345 hours at Francisca Chapadera's homestead, he fled into the night despite gunshots being fired into the air, and was only arrested when he tripped over a fence.

• Whether the applicant had shown, on a balance of probabilities, that it was in the interests of justice for him to be released on bail pending trial in respect of an offence listed in Part I of the Third Schedule to the Criminal Procedure and Evidence Act
• Whether there were compelling reasons justifying the applicant's continued detention as contemplated in section 50(1)(d) of the Constitution
• Whether the applicant posed a flight risk that would jeopardize the interests of justice
• How to balance the presumption of innocence and the right to liberty against the interests of society in ensuring an accused stands trial

The application for bail pending trial was dismissed.

Where an accused person charged with an offence listed in Part I of the Third Schedule to the Criminal Procedure and Evidence Act applies for bail, the accused bears the burden of showing, on a balance of probabilities, that it is in the interests of justice to be released on bail. Despite the constitutional presumption of innocence and the right to liberty under section 50(1)(d) of the Constitution, bail may be refused where there are compelling reasons justifying continued detention. A real and well-founded risk of abscondment constitutes such a compelling reason, particularly where: (1) the offence is serious with a likely lengthy penalty upon conviction; (2) the state's case is strong; and (3) the accused has demonstrated a determined pattern of evading arrest. Where an applicant has shown such determination to flee that no conditions would suffice to allay fears of abscondment, it is not in the interests of justice to grant bail, as justice can only be served if the accused avails himself for trial.

The court emphasized that incarceration pending trial is not meant to be anticipatory punishment but rather to ensure the applicant stands trial. The court also observed that in every bail application, the presumption of innocence operates in favour of the applicant and bail should be granted where possible, with the court leaning in favour of liberty whenever the interests of justice will not be prejudiced. The court noted that there is a need to balance the interests of society (that an accused stands trial) against the right to liberty of the individual, which is a balance not always easy to achieve but should be struck with a view to guard against the denial of bail working as a punitive measure. The court referenced the principle from S v Hussey that fear of abscondment must not be a bald unsubstantiated assertion but must be well-grounded.

This case illustrates the application of the bail provisions in Zimbabwe for offences listed in Part I of the Third Schedule to the Criminal Procedure and Evidence Act, where the accused bears the burden of showing on a balance of probabilities that it is in the interests of justice to be released on bail. The case demonstrates how Zimbabwean courts balance the constitutional right to liberty and the presumption of innocence against the interests of justice in ensuring accused persons stand trial. It provides guidance on assessing flight risk, particularly where there is concrete evidence of prior attempts to evade arrest. The case is also relevant to South African jurisprudence given the similar constitutional frameworks and bail principles in both jurisdictions, particularly the balancing exercise between individual liberty rights and the administration of justice.