Rodwell Sibanda v The State

The applicant, a 23-year-old man who does odd jobs at his village, was charged with murder as defined in section 47(1) of the Criminal Law [Codification and Reform] Act [Chapter 9:23]. On 18 April 2022, the applicant and the deceased (Prince Dube) were among people celebrating Independence Day at Mbondo Business Centre. Around 2200 hours, they were gambling with one Nkosilathi Ngwenya, and the deceased won a lot of money. The deceased went to a shop to share the money with others. The applicant followed and forcibly took money from the deceased, tearing it into two pieces. When the deceased questioned him, the applicant drew a small axe intending to strike the deceased, but the deceased overpowered him and took the axe. The applicant then armed himself with a stone and hunted for the deceased. He struck the deceased once on the head with the stone, causing the deceased to become unconscious and fall to the ground. The deceased died on the way to hospital. The applicant applied for bail pending trial, testifying that he resides at his grandmother's homestead, has never been to South Africa, and would not interfere with witnesses or abscond if released. He apologized to the court and indicated he had suffered in prison.

• Whether it was in the interests of justice to grant bail to the applicant pending trial
• Whether the applicant posed a flight risk if released on bail
• Whether the State had a strong prima facie case against the applicant
• Application of section 117 of the Criminal Procedure and Evidence Act [Chapter 9:07] regarding bail

The application for bail was dismissed and the applicant was ordered to remain in custody pending trial.

In bail applications, the court must uphold the interests of justice by balancing individual liberty against the administration of justice in accordance with section 117 of the Criminal Procedure and Evidence Act. Where an applicant faces a grave charge of murder with a strong prima facie case against them, and if convicted would likely receive a lengthy term of imprisonment, the seriousness of the charge and potential penalty creates a real and substantial flight risk. In such circumstances, it is not in the interests of justice to grant bail, notwithstanding the presumption of innocence and the general principle favoring liberty. The cumulative effect of factors including the gravity of the offence, strength of the State's case, severity of potential sentence, and evidence suggesting the accused has means and motive to flee, constitutes sufficient grounds to refuse bail.

The court observed that whenever the interests of justice will not be prejudiced by pre-trial release, courts should lean in favour of liberty and grant bail, particularly if the offence charged is not likely to attract a prison sentence. The court noted that in assessing flight risk in the absence of concrete evidence of predisposition to abscond, account must be taken of various factors including: the accused's ability to flee to a foreign country, whether they have contacts abroad who would offer sanctuary, absence of extradition facilities, substantial property holdings in Zimbabwe, status in the country, assets abroad, previous bail compliance, and assurances given about intention to stand trial. The court also observed that the applicant's experience of prison life and his plea to the court suggesting he would 'be a good person thereafter' undermined confidence that he would await trial if released.

This case illustrates the application of section 117 of the Criminal Procedure and Evidence Act in Zimbabwe concerning bail applications for serious offences like murder. It demonstrates how Zimbabwean courts balance the presumption of innocence and individual liberty against the interests of justice, particularly where there is a strong prima facie case and significant flight risk. The judgment provides guidance on the factors courts consider when assessing whether an accused person is likely to abscond if granted bail, including the gravity of charges, strength of the State's case, and personal circumstances of the accused. It reinforces that in cases involving serious charges with potential lengthy imprisonment, courts will carefully scrutinize flight risk and may refuse bail even where the accused provides assurances, if the cumulative factors suggest absconding is likely.