HIGH COURT OF ZIMBABWE
MUTARE, 5 December 2019
N Nhambura, for the applicant
M Musarurwa, for the respondent
MWAYERA J: On 5 December 2019 after hearing both counsels and considering papers filed of record, I dismissed the application for bail. I undertook to avail reasons for the disposition, these are they.
The applicant was arraigned before the Magistrates Court facing allegations of Rape as defined in s 65 of the Criminal Law (Codification and Reform) Act, [Chapter 9:23]. The allegations being that during the period extending from August 2016 to October 2019 at 1203 Chikanga 1 Mutare the accused being the father and male adult knowingly had sexual intercourse with X his daughter a female juvenile aged 4 who at law is deemed incapable of consenting to sexual intercourse. The brief facts of the state allegations as outlined in the state outline are as follows. The applicant as the father of complainant remained in charge of the complainant as a custodian parent while his wife the mother of the complainant was attending school. Sometime in October 2016 the complainant’s mother observed the complainant’s private parts as being reddish when she was bathing the child. She advised accused of the observation. In October 2019 the complainant’s mother left the complainant in custody of the accused. Upon return she together with her mother the grandmother of the complainant found accused and complainant locked in the bedroom.
The accused took long to open and when he eventually opened the complainant came out looking sad. Upon being bathed by the grandmother it was observed that the complainant had semen on the private parts as well as on the panties. The complainant was taken for medical examination and also upon being questioned she revealed that the applicant had sexually abused her. The applicant in his bail application denied the allegations pointing out that the allegations are a fabrication due to marital problems between himself and his wife.
It is settled in applications for bail pending trial the court has to weigh the right to personal liberty which is constitutionally provided for in the Zimbabwean Constitution and the interest of administration of justice. The individual is presumed innocent till proven guilty by a competent court of law. That presumption of innocence signals that the right to individual liberty should not be lightly eroded unless there are compelling reasons warranting such infringement. See S v Felody Munska HB 55/16. The court has to seek to balance the right to individual liberty on one hand and the interests of administration of justice on the other hand. The interests of administration of justice is underpinned on the societal interest to have matter prosecuted t their logical conclusion in a bid to ensure that justice is done. To that end therefore if circumstances tilt the scales such that justice will be prejudiced and jeopardised by placement of the applicant to bail then the applicant ought not be granted bail.
In this case the, the starting point is that the applicant is presumed innocent till proven guilty. He has a right to his liberty. Such factors are however not to be considered in isolation but cumulatively with the circumstances giving rise to allegations, the nature of allegations and the proffered explanation. The applicant is facing a serious allegation of rape of his own biological 4 year old daughter. I am alive to the fact that seriousness of the charge on its on is not good enough reason for denying applicant bail. The bail principles, it is settled that of necessity one has to consider all factors cumulatively as opposed to considering each fact in isolation. The offence of rape is a serious offence which in the event of conviction would call for lengthy imprisonment moreso in this case given complainant is age 4 and that she is a daughter to the applicant. The nature of allegations and likely sentence in the event of conviction can act as an inducement to abscondment. Given how the allegations surfaced that complainant who was with the accused was found with her private parts soiled with semen gives a complexion that the state case is strong. The applicant was the only man in whose custody the complainant was. Such strength together with the nature of the allegations and likely sentence can act as an inducement to abscond and thus prejudice the interest of administration of justice.
Further upon considering the relationship between the applicant, complainant and complainant’s mother and grandmother the temptation to interfere with evidence and witnesses directly and indirectly is high much to the prejudice of administration of justice. The temptation to domestically resolve the matter at the expense of administration of justice is high
. The explanation by the applicant is that the allegations are a mere fabrication because of marital problems. There is no substantiation and the statement just hangs loosely to the bare denial. Upon considering cumulatively the circumstances of this case, the nature and gravity of the offence the strength of the state case, the explanation by the applicant and the likely sentence in the event of conviction there are factors militating against admission of the applicant to bail. The likelihood of abscondment and interference will jeopardise and prejudice the administration of justice. It is apparent there are compelling reasons why the applicant should not be admitted to bail.
Accordingly the application for bail is dismissed.
Tandiri Law Chambers, applicant’s legal practitioners
National Prosecuting Authority, respondent’s legal practitioners