Sithole Last v The State

The applicant was charged with murder as defined in s 47 of the Criminal Law (Codification and Reform) Act [Chapter 9:23]. He allegedly acted in concert and common purpose with accomplices John Mabhunu and Francis Benjamin Alimoso to waylay and murder the deceased Oliver Chipepera during a robbery on 26 September 2014. They barricaded a road in Mabvuku with stones, and when the deceased stopped his vehicle, they attacked him. Mabhunu stabbed the deceased to death with an Okapi knife. They robbed him of his Volvo motor vehicle (registration ADK 5132), US$1,000 cash, a cell phone, shoes, and a blue toilet brush. Police arrested Mabhunu wearing the deceased's shoes, who then implicated the applicant and Alimoso. The murder weapon and stolen items were recovered. The applicant made admissions to police and the blue toilet brush was recovered from his premises. The applicant, a 28-year-old family man with fixed abode, applied for bail pending trial, claiming he was unlikely to abscond as he had no passport, denying the charge while disputing ownership of the brush and claiming his admissions were made under duress.

• Whether the applicant should be granted bail pending trial for a murder charge
• Whether the seriousness of the offence and potential death penalty created a likelihood of abscondment
• Whether the strength of the State's evidence affected the bail determination
• Whether public safety considerations justified refusing bail

The application for bail was dismissed.

In bail applications for serious offences carrying severe penalties such as the death sentence, the court must consider: (1) the strength of the State's evidence and likelihood of conviction; (2) the severity of the potential sentence as a factor in assessing flight risk; (3) the principle that the more serious the offence and heavier the expected sentence, the greater the temptation to flee; and (4) public safety considerations where the accused appears to be part of organized criminal activity. Where evidence is overwhelming, the offence is serious, and potential sentencing is severe (death penalty or life imprisonment), the risk of abscondment is too high to justify bail, regardless of the accused's citizenship status or lack of passport.

The court made observations about the applicant being part of a "ruthless organised gang of robbers which is in the habit of hunting and preying on fellow human beings for profit and gain," emphasizing the court's duty to protect society by keeping such dangerous elements "tightly under lock and key." The court also noted that mere citizenship and lack of passport provide no guarantee that an accused will stand trial when facing the death penalty or life sentence, though this observation was integral to the reasoning rather than purely obiter.

This case illustrates the Zimbabwean courts' approach to bail applications in serious criminal matters, particularly murder cases carrying potential death sentences. It demonstrates how courts weigh the seriousness of the offence, strength of State evidence, severity of potential sentencing, and public safety considerations in bail determinations. The case reinforces the principle that the more serious the offence and heavier the expected sentence, the greater the flight risk, and emphasizes the court's protective role toward society in cases involving violent organized crime.