Sidingumuzi Ndabezitha Ncube v The State

The applicant was jointly charged with Jephat Chaganda and others in a High Court trial for theft of gold. While undergoing trial, the applicant faced fresh charges: (1) obstruction of justice contrary to section 184(1) of the Criminal Law (Codification and Reform) Act, alleging he attempted to influence witness Vusumuzi Sayi to change his testimony in exchange for US$3,000; and (2) violating section 12(a) of the Immigration Act (entry by invasion), as the applicant exited Zimbabwe on 7 July 2018 but had no official record of lawful re-entry, with his passport lacking an entry date stamp. The applicant appeared before the Bulawayo magistrates court on 1 February 2019, was remanded to 14 February 2019, and the matter was set down for trial on 11 April 2019. The applicant denied both charges and applied for bail.

• Whether there were compelling reasons to deny bail to the applicant in light of his constitutional right to bail under section 50(1)(d) of the Constitution
• Whether the allegations of interference with a state witness constituted sufficient grounds to refuse bail under section 117(6)(a) of the Criminal Procedure and Evidence Act
• Whether granting bail would jeopardize the proper functioning of the criminal justice system given the ongoing High Court trial
• Whether the applicant had provided a plausible defence sufficient to warrant the exercise of discretion in his favour

The application for bail was dismissed.

Where an accused person who is facing trial is charged with a fresh offense of obstruction of justice involving alleged interference with witnesses in the ongoing trial, such conduct strikes at the foundation of the criminal justice system and constitutes compelling reasons to deny bail under section 117(6)(a) of the Criminal Procedure and Evidence Act. An accused charged with an offense similar in nature or which has the potential to jeopardize the case for which he is already on trial is not a suitable candidate for bail. The constitutional right to bail under section 50(1)(d) of the Constitution must be balanced against the interests of justice, and where granting bail would create a real and substantial risk of compromising an ongoing trial, bail must be refused. Where the state has a strong prima facie case, a mere bare denial without a plausible defence is insufficient to warrant the exercise of the court's discretion in favour of granting bail.

The court observed that the fact that an applicant may have failed to convince a witness to change testimony does not lead to the conclusion that such interference did not occur. The court noted that the seriousness of the charge on its own is not a good ground for denying bail. The court commented that applicants are at liberty to advance their defence at trial at the appropriate time, and do not need to prove their defence in a bail application, but must set out a plausible defence. The court remarked that allegations that charges are malicious require a proper basis or foundation to be established, and cannot be made without supporting evidence.

This case is significant in Zimbabwean criminal procedure law as it clarifies the circumstances under which the constitutional right to bail may be denied. It establishes that allegations of interference with witnesses in an ongoing trial constitute compelling reasons to refuse bail, particularly where the fresh charges have the potential to jeopardize the trial for which the accused is already appearing. The judgment reinforces the principle that the courts take very seriously any allegations of interference with witnesses and investigations, as such conduct strikes at the foundation of the criminal justice system. The case also illustrates the application of the test that where the state has a strong prima facie case, the applicant must place the court in confidence and proffer a plausible defence beyond a bare denial.