Nkululeko Sobantu v The State

The applicant was arrested on 17 May 2018 for the murder of Tawanda Moyo at Senco Night Club, Inyathi. The state alleged that the applicant stabbed the deceased several times all over the body, leading to his death. The applicant was arrested at around 8:30pm when he entered his house from Inyathi Township. Upon arrest, the applicant's cellphone was seized and discovered to contain chat messages with Stanley Ndlovu and another person saved as "X", wherein the applicant was arranging to abscond to South Africa to avoid arrest. Stanley Ndlovu, who was also linked to the offence, had already absconded to South Africa. The applicant is an artisanal miner described as nomadic. The state alleged there were eyewitnesses to the stabbing.

• Whether the applicant should be granted bail pending trial in a murder case
• Whether there was a likelihood of the applicant absconding if granted bail
• How to balance the constitutional presumption of innocence under section 70(1)(a) of the Constitution against the interests of the proper administration of justice
• What factors should be considered in assessing the risk of abscondment in bail applications

The application for bail pending trial was dismissed.

The binding legal principles established are: (1) In bail applications, the constitutional presumption of innocence must be balanced with the fundamental principle that proper administration of justice requires assurance that an accused will attend trial; (2) The presumption of innocence under section 70(1)(a) of the Constitution must not be interpreted in isolation but contextually with other legitimate interests; (3) When assessing risk of abscondment in bail applications, courts must consider: (a) the nature of the charges, (b) the severity of punishment likely upon conviction, and (c) the apparent strength of the state case (applying S v Jongwe 2002 (2) ZLR 209 (S)); (4) Courts ascribe to an accused the ordinary fears and motives that sway human nature when judging flight risk; (5) Evidence of concrete plans to abscond (such as communications arranging flight to another country) constitutes strong evidence of flight risk; (6) A bare denial of allegations in the face of serious charges and strong evidence is insufficient to warrant the exercise of judicial discretion in favour of granting bail.

The court observed that an applicant must give a credible defence in order to take the court into its confidence, rather than simply relying on a bare denial. The court also commented that where an accused is nomadic by occupation (such as an artisanal miner), this may be a relevant factor suggesting increased flight risk, though this observation was made in the specific context of this case and combined with other evidence of flight risk rather than as a standalone disqualifying factor.

This case illustrates the Zimbabwean High Court's approach to balancing constitutional rights (particularly the presumption of innocence under section 70(1)(a) of the Constitution of Zimbabwe Amendment No. 20 of 2013) against the interests of justice in bail applications. It demonstrates how courts assess flight risk in serious criminal cases, particularly where there is evidence of planned abscondment. The case reinforces that constitutional rights must be interpreted contextually and balanced against other legitimate interests, including ensuring accused persons stand trial. It provides guidance on how electronic evidence (such as cellphone chat messages) may be used to demonstrate flight risk in bail applications.