Ntabiso Ncube v The State

On 9 August 2021, the applicant allegedly proceeded with accomplices, armed with pistols, to house number 116 New Luveve, Bulawayo, intending to rob the complainant. Upon arrival, they encountered a police ambush. In the ensuing gun battle, one or more of the group shot and killed a member of the Police Special Tactics Unit. The applicant fled the scene but was shot during the exchange. He was arrested the following day at his girlfriend's house in Lobengula West, Bulawayo, where he was being treated for gunshot wounds without formal medical care. A 9x19mm Sarsilmaz pistol (serial number T1102-18U01181) was recovered at the scene, allegedly dropped by the applicant when he tripped while fleeing. The applicant also allegedly led police to house number 3470 Emakhandeni where a Star pistol was recovered. The applicant was charged with murder (of a law enforcement officer) and attempted robbery under the Criminal Law Code. The applicant applied for bail, denying involvement and claiming he was an innocent bystander who was shot and hit by a car. The State opposed bail.

• Whether the applicant satisfied the burden under section 115C(2)(a)(ii)A of the Criminal Procedure and Evidence Act to show on a balance of probabilities that it is in the interests of justice to be released on bail for offences listed in Part I of the Third Schedule
• Whether exceptional circumstances exist which in the interests of justice permit the applicant's release under section 117(6) of the Criminal Procedure and Evidence Act
• Whether the State has a strong prima facie case against the applicant
• Whether the applicant is a flight risk
• Whether releasing the applicant would undermine the proper functioning of the criminal justice system and the bail institution
• The admissibility and weight of hearsay evidence in bail applications
• The propriety of DNA evidence obtained without consent or court order under section 41B of the Criminal Procedure and Evidence Act

The application for bail is dismissed. The applicant shall remain in custody pending trial.

Where an accused is charged with an offence listed in Part I of the Third Schedule to the Criminal Procedure and Evidence Act (including murder of a law enforcement officer), the accused bears the burden of proving on a balance of probabilities that it is in the interests of justice to be released on bail, and must demonstrate exceptional circumstances that justify release. The grant or refusal of bail is a judicial function that cannot be determined by agreement between counsel; the court must independently weigh the personal interests of the accused against the interests of justice as required by section 117(5) of the Act. In assessing whether to grant bail, the court may consider: the strength of the prima facie case against the accused; the nature and gravity of the offence and likely penalty; the risk of absconding; and whether release would undermine the proper functioning of the criminal justice system. A court may rely on hearsay evidence and the opinion of investigating officers in bail applications, with the weight depending on the facts and circumstances, but must not turn the hearing into a provisional determination of guilt.

The court observed that it is a notorious fact that the border between Zimbabwe and South Africa is porous, which is relevant to assessing flight risk for accused persons who cross borders irregularly. The court noted that the reason the applicant did not seek medical treatment after sustaining serious injuries was because he had been shot in a gun battle with police, which itself speaks to the real danger of absconding. The court commented that it is inherently improbable that police would fabricate evidence against an applicant merely to appear to have solved a crime. The court remarked that the concession made by State counsel that bail should be granted was not properly taken given the evidence and circumstances of the case. The court emphasized the principle that no one should remain locked up without good reason, while balancing this against the serious nature of the charges and the interests of society.

This case illustrates the application of Zimbabwe's stringent bail provisions for serious scheduled offences, particularly murder of law enforcement officers under Part I of the Third Schedule to the Criminal Procedure and Evidence Act. It demonstrates: (1) the elevated burden on applicants charged with such offences to prove exceptional circumstances justifying release; (2) the court's discretion to rely on hearsay evidence in bail applications while being mindful of its weight; (3) the requirement that bail is an independent judicial function that cannot be determined by agreement between counsel; (4) the court's obligation under section 117(5) to assess the interests of justice even where the prosecution does not oppose bail; (5) the exclusion of evidence obtained in violation of statutory protections (DNA evidence without consent or court order); and (6) the assessment of flight risk in the context of cross-border movement and porous borders. The judgment emphasizes that bail hearings must not become dress rehearsals for trial while still requiring assessment of the apparent strength of the State's case.