The applicant is a 20 year old young man who says he is
awaiting his O level results having written the examinations at Luveve Study
College in Bulawayo in November 2015, an allegation which has not been disputed
by the State….,.
The applicant was arrested on 26 December 2015 on a charge
of murder; it being alleged that the previous day, on Christmas day, he stabbed
a rival suitor, Limukani Ncube to death using a kitchen knife in a fight over a
woman. The allegations, as appear in the
Request for Remand Form 242, are that:
“On 25 December 2015, near 17000 Houses, Cowdray Park,
Bulawayo the (accused) and the complainant had a misunderstanding over a
girlfriend at around 21:00 hours which resulted in the accused person stabbing
the now deceased once below the left shoulder and once on the right
shoulder. The deceased was taken to
Empompini Police Base on a wheelbarrow and he however died along the way. The
accused used a kitchen knife to stab the deceased.”
The applicant has now come to this court seeking his
admission to bail pending trial.
He states that he resides with his mother at House No.18316
Cowdray Park, Bulawayo and is a student aforesaid. He is pleading not guilty to
the charge. According to him, he had an altercation with a group of boys from
Block 17 in Cowdray Park who questioned why he, as a resident of Block 18, had
a girlfriend in Block 17. He was accosted by a gang of more than ten people
while he was in the company of a friend and in the ensuing brawl the deceased
was stabbed - although not by him. The applicant states that he was rescued by
his cousin who escaped with him in a motor vehicle with his assailants in hot
pursuit. His attackers vented their anger on the motor vehicle after which they
proceeded to his house which they pummelled causing extensive damage, as
evidenced by the photographs that he produced. As he was still under attack, he
was forced to seek refuge at his grandfather's house in Magwegwe from where he
was arrested the following day. It is his mother who directed the police to
where he was.
The bail application is opposed by the State on the grounds
set out in the affidavit of the Investigating Officer, Assistant Inspector
Malven Ndlovu, who states:
“The accused is still in custody and I wish to oppose bail
on the following grounds;
1. When Lindani Caphu was arrested he was still holding the
murder weapon in his right hand.
2. The accused made threats to the witnesses who effected a
citizen's arrest and a South African registered car came and whisked him away
from the citizens who were still holding him by his two hands.
3. Accused's mother was later interrogated and told the
police that the accused was hiding at a certain house in Magwegwe and police
went and arrested him.
4. Since accused is a local person, the community where he
lives is baying for his blood seeking revenge and his safety once out of
custody will be in danger.
5. The probability of accused running away is high due to
the gravity of the offence.”
Counsel for the State relied on the risk of abscondment as
the only ground for opposition asserting that the charge the applicant is
facing is a very serious one and with the State case against him being very
strong, this will act as an incentive for abscondment. She submitted that the
fact that the applicant was sprung off from a citizen's arrest in a foreign
registered vehicle points to an inclination to abscond if granted bail.
In my view, all these are lame excuses for opposing bail.
It has been stated on numerous occasions that the seriousness of the offence,
on its own, cannot constitute sufficient ground for denying an applicant bail.
There must be more evidence pointing to the applicant's affinity for
abscondment as would persuade the court that he will not stand trial if
admitted to bail: See S v Putsayi HH404-15.
It has been submitted that the fact that the applicant was
whisked away in a foreign registered motor vehicle and was only arrested at a
house in Magwegwe, where he was allegedly hiding, points to an inclination to
abscond.
I do not agree.
What that argument ignores completely is the fact that this
was a gang fight between two rival groups with that of the applicant badly out-numbered.
There can be little doubt that the applicant was under attack with the
assailants even venting their anger on his house and the fleeing motor vehicle.
For his safety, it was necessary for the applicant to beat a tactical retreat.
I am therefore not satisfied that his conduct points to a desire to abscond.
Quite to the contrary, it points in the opposite direction. His mother pointed
his location, and even though he had an opportunity to run, he did not do so
until the police came for him…,.
It is now a Constitutional imperative that an arrested
person be released unconditionally or on reasonable conditions pending trial
unless there are compelling reasons for his continued detention (section
50(1)(d) of the Constitution). The State has not adverted to any such
compelling reasons as the fact that the applicant faces a serious charge or
that he will abscond do not equate to compelling reasons when there is no
evidence suggesting the desire to abscond. The applicant should therefore be
admitted to bail.
Accordingly it is ordered that:
The applicant be and is hereby admitted to bail pending
trial on the following conditions; that;
(a) He deposits the sum of $150= with the Registrar of the
High Court, Bulawayo.
(b) He resides at 1332/2 Old Magwegwe, Bulawayo until the
finalization of the matter.
(c) He surrenders his passport or other travel documents,
if any, to the Registrar of the High Court, Bulawayo.
(d) He does not interfere with evidence or any witnesses in
this matter.
(e) He reports twice a week, on Mondays and
Fridays, between the hours of 06:00 hours and 18:00 hours at Luveve Police
station until the matter is finalized.
