Sikhumbuzo Nyathi v The State

### Preamble
1
HB 160/25
HCBCR 4769/25
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SIKHUMBUZO NYATHI

Versus

THE STATE

IN THE HIGH COURT OF ZIMBABWE

NDUNA J

BULAWAYO 30 SEPTEMBER 2025

Bail application pending trial

Ms Mabhena, for the state

Accused in person

NDUNA J: The accused applies for bail pending his trial. He faces a charge of murder in that the state alleges that the accused was involved in the murder of the deceased who was found to have been stabbed twice with a sharp instrument. This was on 3rd day of August 2025. The accused applies for his bail and says that the state case against him is very weak.

The accused denies any involvement in the deceased’s death. He states that he was actually involve in the burial of the deceased before the accused went about his business. He returned and found that the police had visited his home, searched it and found a python skin. So when he returned, he was phoned by the police to visit the police station and he went there. Over and above the offence involving the python skin, he was then arrested to face the charge of the murder. What the accused states was not disputed by the state. This seems to be true as a look at the Request for Remand form which relates to him shows that it is a disjointed document.

It is quite clear that there document lack coherence in the suspected involvement of the murder. The state alleges the following as the grounds upon which the bailing of the accused is being denied;

a) Accused is likely to interfere with witnesses since they are all staying in

Maphalala village, Nkayi.

b) The object which was used by the accused persons is yet to be recovered

such if released can commit further crimes.

c) The accused is likely to abscond since evidence linking him to the offence is very strong such that if convicted, they are likely to face a custodial sentence.

d) If granted bail,the accused can reunite with Richard Nkiwane who is still at large such he can be influenced to abscond.

e) Community around Maphalala village is very bitter about the behavior of the accused, therefore his life will be at risk if granted bail.

The first reason being given by the state on the document is that the accused is likely to interfere with state witnesses in the case. The state witnesses are not identified. One will wonder as to which persons the accused will interfere with. The narration given for the case does not reveal who are the witnesses. It is alleged that the accused did the following:

On the 2nd day of August 2025 at around 2000 hours, the deceased was at Vhuke Shop, Maphalala Village, Sembewule area Chief Madliwa, Gwelutshena, Nkayi with his son Talent Matangayi, a male aged 23 years. The deceased confronted the accused, Maxwell Nyoni who is already on remand at Nkayi Prison and their accomplice, Richard Nkiwane who is still at large, questioning them why they assaulted his uncle sometime in June 2025. After a while, the now deceased left the shop heading for his homestead. The accused person and his accomplices followed him. The accused person and his accomplices either one or all of them stabbed the now deceased on the left side of the chest and on the right arm and went away. The following day the now deceased was found by his son lying in a pool of blood with stab wounds on the left side of the chest and on the right arm.

In the summary it is not revealed who can be a state witness. The state further alleges to their search for the weapon used. Clearly to suggest that the state will find the weapon used if accused is remanded in custody is being speculative. It is not suggested any where in the proceedings as to how the remanding of the accused will serve in the recovery of the weapon used in the killing of the deceased. The allegation of him absconding is too loose to be taken by the court to be a ground for denial of the accused’s bail. He went away after burying the deceased here and he returned. Clearly this ground is again loosely stated to be one upon which a bail can be refused. All the factors are not those which the court can accept to deny the accused’s admission to bail.

In terms of 50 (1) (d) of the Constitution of Zimbabwe, bail should be granted unless the State has compelling reasons for a person not to be admitted to bail. Bail is a right which can only be curtailed upon the State satisfying the court that it is not in the interest of justice for the accused to be released on bail. In discharging its onus to have bail denied, the State has not only to allege, but should prove cogent grounds on which bail should not be granted. Section 50(1)(d) 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 continued detention.” This constitutional provision emphasizes that any person who is arrested should be released either unconditionally or on reasonable conditions while awaiting their charge or trial. However, this release can be denied if there are compelling reasons justifying their continued detention. As far as the reasons listed above, which are being given by the state for the accused to be denied bail, are very frivolous. This is a case which the accused can be tried whilst he is out on bail.

Accordingly, bail is granted as follows:-

Bail is hereby granted

Accused must deposit an amount in the sum of USD100 as bail deposit

He must reside at Maphalala village, under Chief Maduwa, Headman Mabhonga till matter s finalised

Must report once every month on the 15th of such month till the matter is tried and finalised at the Nkayi Police station.

The National Prosecuting Authority, state’s legal practitioners