Judgment No. HB 6/15

                                                                                                                                                                       Case No.HCB 199/14

                                                                                                                                        Xref CR Tsh 35/12/14 & CRB 2805/14

KELVIN SIBANDA

versus

THE STATE

IN THE HIGH COURT OF ZIMBABWE

MAKONESE J

BULAWAYO 7 JANUARY AND 15 JANUARY 2015

Ms N. M. Ndlovu for the applicant

Mr Hove for the respondent

Bail Application

MAKONESE J:        The Applicant who is 24 years is a male adult ordinarily resident at number 67043/7 Sizinda Flats, Bulawayo.  He faces a charge of murder.  The allegations are that on the 10^th December 2014 and at around 2000 hours the Applicant stabbed the deceased (who was his half brother), once in the collar bone using a screw driver.   The deceased died as a result of the stab wound upon admission to hospital.

The Applicant is seeking bail pending trial.  He argues that he a is suitable candidate for bail on the following grounds:-

(a)        his release on bail will not prejudice the due administration of justice

(b)        investigations are almost complete and there is no possibility of interference with state witnesses.

(c)        the Applicant has no pending cases related to violence and has not previously been convicted of a similar offence.

(d)       there is no risk of the Applicant absconding inspite of the seriousness of the offence.

            The State opposes the application for bail and contends that there is every likelihood that

if granted bail the Applicant may be tempted to abscond because of the inevitability of a

custodial sentence if convicted even on the lessor charge of culpable homicide.  The State has

further alluded to the fact that the Applicant did not readily surrender himself to the police after

the commission of the offence.  He disappeared and went into hiding soon after committing the heinous crime.  He was arrested at a beerhall in Sizinda two days after the stabbing.  There is no reasonable or credible explanation as to why the Applicant went into hiding.

            In applications of this nature the courts will lean in favour of granting bail where the following factors are established:-

(a)        the interests of justice will not be prejudiced.

(b)        there is no danger of the Applicant absconding to avoid standing trial.

            See the case of S v Fourie 1973 (1) SA 110.

            I am mindful of the fact that there is evidence that the deceased may have been the initial aggressor but it seems that the Applicant’s reaction to that aggression was totally disproportionate.  The Applicant stabbed the deceased in the collar bone with deadly consequences.  He showed no remorse to the victim and fled the scene of the crime.  He went into hiding and was only arrested after police received information on his whereabouts.  On the basis of the circumstances surrounding the commission of the offence and the manner of the Applicant’s arrest there is no doubt that the possibility of abscondment is real. The Applicant must be aware that upon conviction he faces the possibility of a prison sentence.  That on its own will provide sufficient inducement for the Applicant to abscond if granted bail pending trial.

            In terms of section 117(2) (a)(ii) of the Criminal Procedure and Evidence Act [Chapter 9:07], the refusal to grant bail and the detention of an accused in custody shall be in the interests of justice if it is established that the accused will not stand trial.  In considering whether this ground is established section 117(3)(b)(ii) of the Criminal Procedure and Evidence Act requires that the court following factors:-

(i)         the ties of the accused to the place of trial.

(ii)        the existence and location of assets held by the accused

(iii)       the accused’s means of travel and his or her possession of or access to travel documents.

(iv)       the nature and gravity of the offence or the likely penalty therefore;

(v)        the strength of the case for the prosecution and the corresponding incentive of the accused to flee;

(vi)       the efficiency of the amount or nature of bail and enforceability of any bail conditions.

(vii)      any other factor which in the opinion of the court should be taken into account.

            I am of the view that given the strength of the State case against the Applicant and the certainty of a custodial sentence upon conviction, the Applicant is not a suitable candidate for bail.  The Applicant went into hiding after the commission of the offence which points to his ability to abscond.  In balancing the interests of the Applicant and the due administration of justice the court is more likely to impede the proper administration of justice by admitting the Applicant to bail.

            In the result, the application for bail pending trial is hereby dismissed.

Messrs Cheda and partners, applicant’s legal practitioners

National Prosecuting Authority’s office, respondent’s legal practitioners