Judgment No. HB 50/15
Case No. HCB 8/15
HIGH COURT OF ZIMBABWE
BULAWAYO 27 FEBRUARY AND 12 MARCH 2015
Mr C. N Dube for the applicant
S. Ndlovu for the respondent
MOYO J: This is an application for bail pending trial.
The applicant is facing a charge of rape in contravening of section 65 of the Criminal Law (Codification and Reform Act [Chapter 9:23]. The allegations are that on 6 December 2014 at around 2000 hours and at House Number 155 section 3, Collen Bawn, applicant unlawfully had sexual intercourse with a female juvenile aged 12.
In his statement for bail, applicant avers that he is 24 years old and that he is employed by Geelong Mine. Applicant denies the charge. He says at the material time, he was not in Collen Bawn but was at his place of employment in Geelong Mine. He says he also went to Gotshi stamp mill on 11 December 2014 and spent seven days there crushing ore. He states that he returned to Colleen Bawn on 18 December 2014. He is alleged to have raped the complainant on 6 December 2014.
It is important to note at this stage that whilst the charge sheet stipulates the date the offence was allegedly committed as 6 December 2014, the state outline states that the rape allegedly occurred on a date that is unknown to the prosecutor.
Paragraph 7 -8 of the state outline reads thus:
“After some time being quiet the mother of the complainant called her in order to test her virginity since it was their church norm to test every child virginity quarterly, she ordered the complainant to lie down and open up her legs and by so doing the mother of the complainant quickly noticed that she was no longer a virgin before she could even verify by their church methods.
The complainant was asked and she told her mother the whole story regarding what had transpired.”
In such cases, central to the determination by the court is the assurance that the accused person if released on bail would nonetheless avail himself for trial. His personal circumstances, the strength of the state case, the overall interests in the administration of justice are of paramount consideration. Refer to Biti vs S HH 23/02. In the case of Makamba vs The State, it was held thus:
“The primary considerations in assessing evidence and submissions in a bail application are:
1) Whether the applicant will stand trial in due course,
2) whether the applicant will interfere with the investigations of the case against him,
3) whether the applicant will commit further offences, whilst on bail,
4) and other considerations the court may deem good and sufficient.”
In this matter the applicant is employed by Geelong Mine. The charges he faces are serious and is likely if convicted, to face a lengthy imprisonment term. He is however innocent until proven guilty. But the immediate question that should be asked is, would the applicant’s release on bail would jeopardise the interests of justice? Has the state shown or given cogent reasons that would compel this court to decline the applicant bail in the interests of justice? Save for assumptions and the fact that the applicant faces a serious charge, I have not seen any compelling reason advanced by the state, that justifies pre-trial incarceration in this matter. The state has merely presented fears that because the charge accused faces is serious he is likely to abscond.
Numerous factors come into play here. The accused person has alluded to an alibi in his defence. The complaint itself was made under circumstances wherein its volition and spontaneity could create problems for the state case at trial. In my view there is no compelling reason in this matter to deny the applicant his liberty pending trial. Moreso these courts are enjoined to lean towards liberty in pre-trial bail applications in line with the dictates of the presumption of innocence unless if there are compelling reasons to decide otherwise.
I am of the considered view that this is a matter wherein bail pending trial should be granted as there is no clear pointer to the interests of justice being jeopardised by such a decision.
I accordingly grant the applicant bail in terms of the draft.
Messrs Cheda and partners, applicant’s legal practitioners
National Prosecuting Authority, respondent’s legal practitioners