Lindani Mpala and Bhekani Ndlovu v The State

### Preamble
1
HB 26/21
HCB 46/21
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LINDANI MPALA

And

BHEKANI NDLOVU

Versus

THE STATE

IN THE HIGH COURT OF ZIMBABWE

MAKONESE J

BULAWAYO 3 MARCH 2021AND 11MARCH 2021

Bail Application

MAKONESE J:	The two applicants are facing serious allegations of robbery in contravention of section 126 of the Criminal Law (Codification and Reform) Act (Chapter) 9:23.  The state alleges that on 1st January 2021 and at around 2200 hours at 4462 Gwabalanda, Bulawayo applicants were part of a group of four assailants who produced a knife and placed it on the complainant’s neck threatening to cut his throat at the same time demanding cash and valuables.  Applicants and their associates then forced the complainant to lie down on the middle of the road whilst the complainant’s friend was being held against a precast wall by the neck by other accused persons as they continued to demand for valuables.   Applicants allegedly forcibly took a cellphone and an Econet line from the hapless complainant.  The state alleges that as this transpired a motorist who was passing by observed the robbery and tried to rescue the complainant.  He stopped his motor vehicle and as soon as he got out the applicants snatched the keys from him and dragged him out of the vehicle.   Applicants and their colleagues demanded cash and valuables from the second complainant.  At that time the two applicants who were holding the first complainant eventually let him go.  The two applicants then joined the co-accused in the attack of the second complainant.  Applicants proceeded to remove the car battery from complainant’s vehicle.  The complainant and his colleagues who were watching pleaded with the applicants to let them go.  All the occupants in the vehicle were ordered to disembark from the vehicle.  Applicants and their colleagues replaced the battery whilst brandishing knives and broken bottles.  A scuffle ensued with the complainants crying for help.  On realising that residents were approaching the scene applicants and his associates got into complainant’s motor vehicle and sped away leaving the complainants stranded.  A report was made to the police leading to the recovery of the abandoned Toyota Mark 2 vehicle belonging to the second complainant.  The vehicle was recovered at Luveve Cemetry the following day.  One of the assailants, Mbekezeli Brighton Sibanda (2nd applicant) was arrested and led to the recovery of 1st complainant’s brown shoes from his house.  Michael Khumalo led to the recovery of 2nd complainant’s car battery from one Siphiwe Dube who had purchased it from the applicants.

The applicants deny the allegations and aver that they are suitable candidates for bail pending trial.  In their bail statement the applicants aver that they are of youthful age and have a valid defence to the charge.  They indicate that they will raise the defence of alibis in respect of both counts.  No further details of the defence are proferred.  In cases of this nature it is important for applicants to set out the nature of their defence.  It is inappropriate to leave the court to speculate on the nature  and strength of an applicant’s defence.  This is so because in granting or refusing bail the court must exercise its discretion and weigh the interests of justice against the individual liberty of the applicant.

It is settled law that an accused in a criminal trial is presumed innocent until proven guilty by a competent court.  This right is guaranteed by the Constitution of Zimbabwe Amend No. 20 (2013).  Section 50 (1) of the Constitution provides that:

“Any person who is arrested must be released unconditionally or on reasonable conditions pending a charge or trial unless there are compelling reasons justifying their further detention.”

In State v Biti 2002 (1) ZLR 115 (H), The learned judge noted that the primary consideration is whether the applicant will stand trial or abscond, but equally important is whether the applicant will influence the fairness of the trial by intimidating witnesses or interfere with evidence.  The court should always grant bail where possible and should lean in favour of the applicant provided the interests of justice are not prejudiced.

In the instant case, applicants are jointly charged with two others and other suspects are still at large and on the run.  The applicants are facing other robbery cases as narrated by the Investigating Officer one Godwin Samambwa.  The state has a strong case against the applicants.  The allegations are serious.  In the event of a conviction, the applicants face lengthy terms of imprisonment.  Further and in any event, the applicants appear to have the propensity to commit similar offences.  If released on bail applicants are likely to abscond and not stand trial.

I am satisfied that the applicants are not suitable candidates for bail pending trial.

In the result, the application is hereby dismissed.

Makiya & Partners, applicants’ legal practitioners

National Prosecuting Authority, respondent’s legal practitioners