Phumulani Sibanda and Others v The State

The three applicants were game scouts at Bubiana Conservancy in Gwanda. On 3 April 2019 at Boulder Creek Dam, Bubiana Conservancy ranch, along Bubi River, Gwanda, the applicants allegedly ambushed the deceased who was a fisherman, in the company of two colleagues while they were preparing to cast their nets into a dam. Two colleagues managed to flee. The applicants allegedly took turns brutally assaulting the deceased all over the body, causing serious injuries. The applicants then allegedly threw the deceased's body into the river. The body was found floating in the river on 5 April 2019 and retrieved on 6 April 2019, showing serious injuries including swollen right eye, swollen left pelvis, swollen testicles and penis, and the deceased was biting his tongue. The applicants denied having physical contact with the deceased and claimed he fled and jumped into the river fearing apprehension for poaching despite being warned not to. They suggested they were framed by unknown persons as retaliation, claiming friction existed between settlers and game rangers over poaching issues. The applicants were charged with murder under section 77 of the Criminal Law (Codification and Reform) Act (Chapter 9:22) and applied for bail pending trial.

• Whether the applicants were suitable candidates for bail pending trial
• Whether the applicants would stand trial if granted bail
• Whether the applicants' version was credible in light of the evidence against them
• Assessment of the strength of the state case versus the defence proffered
• Application of the presumption of innocence in bail applications

The application for bail pending trial was dismissed.

An applicant who seeks to mislead the court about material facts surrounding the alleged offence, particularly by removing himself from the scene of the crime and providing a dishonest account of the cause of death, is not a suitable candidate for bail. The presumption of innocence does not operate in a vacuum, and an applicant who is dishonest cannot be trusted to stand trial if granted bail. When assessing bail applications, the court must objectively evaluate whether the applicant will stand trial, and where the state case is strong with eyewitness evidence and the defence appears implausible, coupled with the likelihood of a lengthy custodial sentence upon conviction, the risk of absconding is real and bail should be refused.

The court noted that there was general friction between settlers on the opposite bank of the river who were known for poaching and the game rangers tasked with apprehending poachers. The court observed that the applicants portrayed themselves as victims of circumstances. The court commented that the applicants' story "does not add up" in light of the evidence presented. The judgment referenced the constitutional presumption of innocence but emphasized it must be assessed in the context of all relevant factors, not as an absolute right to bail.

This case reinforces important principles in Zimbabwean criminal procedure regarding bail applications in serious cases. It emphasizes that the constitutional presumption of innocence does not operate in isolation and must be balanced against other factors. The case establishes that an applicant's credibility and honesty with the court are critical factors in assessing suitability for bail. Where an applicant provides a version of events that appears dishonest or inconsistent with strong state evidence, this weighs heavily against bail being granted. The judgment also confirms that the severity of potential sentence upon conviction is a relevant factor in assessing the risk of absconding.