Pisi Ndlovu (nee Nxumalo) 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 between 27 July and 3 August 2011, the applicant together with seven others struck the deceased with a sharp object on the head and thereafter removed his tongue, brain, nose, lips and four fingers. The applicant was implicated by one Nkosilathi Khumalo as having masterminded the murder. The planning meeting allegedly took place at her place of abode. She allegedly hired persons to carry out the murder, promising to pay two accomplices and one Nhlanhla Mhlanga US$1,500 after completion. She allegedly hired Zibusiso Mkandla's vehicle to be used in the murder and hired a police detail to participate in the crime by pretending to arrest the deceased. Her prominent involvement became clearer as accomplices were arrested and witnesses interviewed. She applied for bail pending trial.

• Whether the applicant should be granted bail pending trial
• Whether there was a likelihood of the applicant absconding if granted bail
• Whether there was a likelihood of interference with investigations
• Whether there was a likelihood of interference with state witnesses
• The relevance of the nature and gravity of the offence in bail applications
• The relevance of the strength of the prosecution case in bail applications

The application for bail pending trial was dismissed and the applicant was refused bail.

In bail applications, particularly for serious offences like murder, the court must consider the nature and gravity of the offence charged and the strength of the prosecution case as key factors. Where an applicant is alleged to be the mastermind of a serious crime, has been confronted with substantial evidence of involvement, is closely related to key witnesses, and there exists likelihood of interference with witnesses and investigations, the cumulative effect of these factors may render the applicant unsuitable for bail. The fact that an applicant was not initially arrested does not necessarily favor bail if the delay was due to the prominent involvement not yet being detected at the earlier stage.

The court observed that the applicant's situation was different from her co-accused Luvimbi who had been granted bail, noting that differential treatment of co-accused is permissible where the evidence against them differs materially in strength and nature. The court also noted that the inducement to abscond becomes present when an accused person becomes aware of the evidence that witnesses have provided against them, particularly when that evidence reveals their central role in the alleged crime.

This case demonstrates the application of established principles in bail applications in serious criminal matters, particularly murder cases. It illustrates how courts assess the cumulative effect of factors such as the gravity of the offence, strength of evidence, likelihood of abscondment, and potential interference with witnesses and investigations. The case also shows how courts differentiate between co-accused based on the strength of evidence and their respective roles in the alleged crime, and that bail may be granted to some co-accused but not others where circumstances differ materially.