Twoboy Ndlovu and Others v The State

Four applicants applied for bail pending trial on a murder charge. The allegations were that on 15 July 2017 at Sivomo Business Centre in Nkayi, the first and second applicants (aged 26 and 25 years respectively) teamed up and followed the deceased Chris Mpofu, accusing him of assaulting their father and stealing their livestock. They then assaulted the deceased with a plank, an axe and a wheel spanner all over his body, resulting in injuries from which he died on 16 July 2017 after being taken to hospital. The state consented to bail for the third and fourth applicants but opposed bail for the first and second applicants. The first and second applicants had previous convictions for assault. In their bail application, they did not proffer any defence to the murder charge.

• Whether the first and second applicants should be granted bail pending trial on a murder charge
• Whether the risk of abscondment was sufficiently high to deny bail
• The relevance of an accused person's failure to disclose their defence in a bail application
• The factors to be considered in assessing the interests of justice in bail applications

Bail was granted by consent to the third and fourth applicants. The bail application was dismissed in respect of the first and second applicants.

When assessing bail applications, the main consideration is whether there is assurance that the accused will stand trial if granted bail. In determining this, courts must consider: (1) the character of the charges and likely penalties; (2) the strength and weaknesses of the state case; (3) the accused's previous convictions, particularly for similar offences; and (4) whether the accused has disclosed a defence. Where an accused faces a serious charge of murder with a prima facie strong state case supported by eye witnesses, has previous convictions for violent offences, faces a likely lengthy term of imprisonment if convicted, and fails to disclose any defence to counter the state's allegations, the risk of abscondment is high and bail should be refused.

The court observed that it is desirable for an accused person to lay before the bail court what their defence will be at trial, as this has a bearing on the assurance that they will indeed stand trial. This is particularly important because it assists the court to weigh the strengths and weaknesses in the state case and formulate an opinion on whether there is assurance that the applicant will await trial in order to challenge an otherwise weak state case. The conspicuous absence of a defence in a bail statement is a relevant factor weighing against granting bail.

This case reinforces the importance in Zimbabwean criminal procedure of accused persons disclosing their intended defence when applying for bail. It demonstrates how courts weigh multiple factors including seriousness of the charge, strength of the state's case, previous convictions for similar offences, likely sentence if convicted, and absence of a disclosed defence when assessing the risk of abscondment. The case provides practical guidance on how courts apply the Jongwe principles in bail applications involving serious violent offences.