Mdudzi Ncube and Lungelo Sibanda v The State

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HB 58/23
HCB 114/23
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MDUDUZI NCUBE

And

LUNGELO SIBANDA

Versus

THE STATE

IN THE HIGH COURT OF ZIMBABWE

MAKONESE J

BULAWAYO 3 & 6 APRIL 2023

Bail Application

T. Runganga for the applicants

B. Gundani for the respondent

MAKONESE J:	The applicants are facing charges of rape in violation of section 65(1) of the Criminal Law Codification and Reform Act (Chapter 9:23).  Applicants deny the allegations and contend that they had consensual sexual intercourse with the complainant.

The allegations against the applicants are that on the 4th of March 2023 and at Dollar Block Extension, Inyathi, the accused took turns to rape the complainant, a female adult aged 19 years.  The state avers that it has a strong prima facie and against the applicants and that there is a risk of abscondment if applicants are granted bail pending trial.  In the event of a conviction, the applicants are likely to face a lengthy custodial sentence.  That alone may induce them to abscond.

In their bail statement applicants deny having sexual intercourse with the complainant against her will.  Applicants aver that they had consensual sexual intercourse with the complainant.  Applicants submit that the complainant consented to have sexual intercourse with the two after they promised to give her the money they had promised her.   Applicants failed to give the complainant the money they had promised her.  Applicants aver that complainant felt used and as a way of expressing her anger, decided to report the matter as a way of fixing them.  Applicants allege that they were appalled when the police arrested them on rape charges.  Applicants submit that given the circumstances surrounding the alleged offence there is no risk of abscondment.  They are prepared to stand trial as the state case against them is weak.  Applicants submit that they are persons of fixed abode.  1st applicant resides at Mateteni Village, Lupane and undertakes to continue residing at that location pending the finalization of the case.  2nd applicant resides at Dollar Block Extension, Inyathi.  1st applicant is aged 18 years, whilst 2nd applicant is aged 17 years.

In an affidavit filed by the state, the Investigating Officer opposes bail on these grounds;

Applicants are not residents of Inyathi, hence if granted bail they are likely to abscond.

2nd applicant is complainant’s neighbor and if granted bail he is likely to interfere with witnesses.

due to the gravity of the offence the applicants are likely to abscond if granted bail.

It is trite that in applications for bail pending trial, the courts will lean in favour of an applicant where the interests of justice will not be endangered by the granting of bail.

In terms of section 117 (2) of the Criminal Procedure and Evidence Act (Chapter 9:07), it is provided that:

“The refusal to grant bail and the detention of an accused in custody shall be in the interests of justice where one or more of the following grounds are established –

Where there is a likelihood that the accused, if he or she were released on bail, will –

endanger the safety of the public or any particular person or will commit an offence referred to in the First Schedule, or

not stand his or her trial or appear to receive sentence; or

attempt to influence or intimidate witnesses or to conceal or destroy evidence …”

Further, it is provided under section 50 1(d) of the Constitution of Zimbabwe 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.

On the facts of the present case, the state alleges that there is a prima facie strong case against the accused persons.  Both applicants do not dispute having sexual intercourse with the complainant.  Applicants however, deny that the sexual acts were non-consensual.  Applicants aver that the reason for the accusations against them is that they failed or neglected to pay the complainant the money for services rendered.  The defence raised by the applicants is not fanciful.  It is a defence recognizable at law.

It is not sufficient for the state to make bold allegations that an applicant in a bail application is a flight risk.  The state is required to place before the court compelling details on why applicant is deemed a flight risk.  Both applicants are of fixed abode.  They have undertaken that if granted bail they would continue residing at their given address.

In S v Munsaka HB-55-2016, the court emphasized that where bail is being opposed without reference to compelling reasons for an arrested person’s continued detention, there is no basis for opposing bail.  The state has not alluded to any compelling circumstances for the refusal of bail.

It is a well-established principle of our law that the seriousness of an offence on its own is not a basis for the denial of bail.  This is so because the presumption of innocence operates in favour of an accused person.  Applicants are entitled to be presumed innocent until proven otherwise by a competent court.

I am satisfied that applicants are suitable candidates for bail.

In the circumstances and accordingly, the application for bail pending trial is granted in terms of the Draft Order.

Liberty Mcijo & Associates, applicants’ legal practitioners

National Prosecuting Authority, respondent’s legal practitioners