Wisdom Mpilwenhle Ndlovu v The State

On 2 June 2019, the applicant allegedly hired the deceased, a sex worker, and proceeded to Silver Sands Lodge in Bulawayo. A misunderstanding ensued which degenerated into a fight. The applicant allegedly strangled the deceased resulting in her death and stole her cell phone. The applicant then allegedly stashed the body under the bed and fled from the scene. On 2 June 2019 in the morning, the lodge housekeeper advised applicant it was time to check out, but applicant paid for an extra day claiming his partner was still drunk. On 3 June 2019, the applicant was nowhere to be seen and the body of the deceased was found under the bed. The applicant booked the lodge under a false name. After the police obtained his photograph from videos and pictures from the lodge and published it in the press, his relatives contacted him. Instead of reporting to police, he fled and disappeared for approximately one year before being apprehended. Video footage showed applicant entering the lodge reception with the deceased. The applicant is a 26-year-old Rock Blaster employed at a mine in Filabusi, residing at number 536 Emganwini, Bulawayo, engaged to be married with a one-year-old child.

• Whether exceptional circumstances existed which in the interests of justice permit the applicant's release on bail in terms of section 115C(2)(a)(ii)(B) of the Criminal Procedure and Evidence Act
• Whether the State had a strong prima facie case against the applicant
• Whether the applicant was a flight risk
• Whether the release of the applicant on bail would undermine the proper administration of justice

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

In bail applications for murder charges falling under Part II of Schedule 3 of the Criminal Procedure and Evidence Act, the accused bears the onus of proving on a balance of probabilities that exceptional circumstances exist which in the interests of justice permit release on bail. Where the State has a strong prima facie case against an accused (including video evidence, confirmed warned and cautioned statements admitting the crime, and positive scene indications), the seriousness of the offence and the likely sentence upon conviction create a strong incentive to flee. Evidence of flight risk, including using false names, fleeing the scene of the crime, and evading arrest for an extended period, combined with the seriousness of the charge and the strength of the State's case, demonstrates that the interests of justice do not permit the grant of bail. The cumulative effect of these factors constitutes sufficient grounds for refusing bail as the accused has failed to discharge the onus of proving exceptional circumstances.

The court noted that for purposes of determining a bail application, evidence such as a warned and cautioned statement alleged to have been obtained under duress cannot be ignored and is admissible, even though such evidence may be challenged at trial. The court also observed that an applicant's mere assertion (ipse dixit) that he will not abscond carries little persuasive weight when contradicted by the objective facts of the case and the evidence of the investigating officer. The court commented that the release of an accused on bail in circumstances where serious allegations exist and the accused has evaded arrest for a prolonged period would undermine the objective and proper functioning of the criminal justice system and the bail institution.

This case demonstrates the application of the heightened test for bail in murder cases falling under Part II of Schedule 3 of the Criminal Procedure and Evidence Act in Zimbabwe. It illustrates how courts apply section 115C(2)(a)(ii)(B) which requires an accused to demonstrate exceptional circumstances on a balance of probabilities. The case is significant for showing how factors such as the strength of the State's prima facie case, flight risk (evidenced by use of false names, fleeing the scene, and evading arrest), and the seriousness of the offence combine to defeat a bail application. It also demonstrates that evidence obtained under allegedly unlawful means (such as statements claimed to be obtained under duress) may still be considered at the bail stage for purposes of assessing the strength of the State's case.