Qaphelani Sikhosana v The State

The applicant was charged with robbery in contravention of section 126(1)(a) of the Criminal Law (Codification and Reform) Act. On 4 August 2020, the applicant and three accomplices allegedly proceeded to Nyezi Village, Chief Sikhosana in the Filabusi area, armed with a pistol and machetes. They assaulted victims at Luckson Moyo's homestead, demanding gold, cash and valuables. They forcibly took 24 grams of gold, a gold detector, clothing, blankets and USD$1,500 cash. During the robbery, Luckson Moyo was struck on the head with a machete and Lyton Moyo was struck on the right palm. The applicant was arrested and found in possession of stolen property including a passport belonging to one of the complainants, Lyton Moyo, and other goods and cellphones recovered from his residence at 5369 Nketa 9, Bulawayo. The applicant claimed he went with two friends and that one of them, Sinobukhosi Mpofu, used coercion claiming the complainants owed him money. He stated he was only keeping the stolen property for Sinobukhosi and portrayed himself as an innocent bystander. The main perpetrator, Sinobukhosi Mpofu, had absconded and was at large.

• Whether the applicant was entitled to bail pending trial
• Whether there were compelling reasons to deny the applicant bail
• Whether granting bail would endanger the due administration of justice
• Whether the risk of abscondment was sufficiently high to refuse bail
• Whether the strength of the state's prima facie case justified refusing bail

The bail application was dismissed. The applicant was to remain in custody pending trial.

In bail applications, where the state has a strong prima facie case, particularly involving serious violent offences such as robbery, and where the applicant is found in possession of recently stolen property without a credible explanation, there are compelling reasons to refuse bail. The stronger the state's case, the greater the risk of abscondment. An applicant found in possession of recently stolen property bears an onus to credibly explain how he acquired such property. The fact that the main perpetrator has already absconded is a relevant factor that increases the flight risk for remaining accused persons. The liberty of the individual must be balanced against the interests of the state and the due administration of justice, and bail should be refused where granting it would endanger the due administration of justice.

The court observed that the applicant's conduct after the robbery was inconsistent with his claim of being an innocent bystander who took no active role. The court remarked that it was difficult to understand why someone who was merely an innocent bystander would keep stolen property at his residence. The court also noted that whilst the applicant claimed the robbery took place but that he did not participate, he did not find it necessary to disassociate himself from the unlawful enterprise, which 'does not make sense'. The court observed that the absence of the main perpetrator does not prevent the court from trying the applicant provided there is sufficient evidence to prosecute.

This case illustrates the application of constitutional bail provisions in Zimbabwe in cases involving serious violent crimes. It demonstrates how courts balance the constitutional right to liberty against the interests of justice, particularly where the state has a strong prima facie case and there is evidence of possession of recently stolen property. The case confirms that the strength of the state's case is a relevant factor in assessing flight risk, and that an applicant's explanation for possession of stolen property must be credible and consistent with the overall evidence. The judgment reinforces the principle that the absence of co-accused perpetrators can increase flight risk for remaining accused persons.