Siqokoqela Mphoko v The State

### Preamble
1
HB 234/22
HCB 318/22
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SIQOKOQELA MPHOKO

Versus

THE STATE

IN THE HIGH COURT OF ZIMBABWE

MAKONESE J

BULAWAYO 13 AND 15 SEPTEMBER 2022

Bail Application

Z C Ncube, for the applicant

T M Nyathi, for the respondent

MAKONESE J: 	The applicant appeared before a Magistrate at Bulawayo on the 1st of September 2022 facing 3 counts of rape as defined in section 65 (1) (a) (b) of the Criminal Law Codification and Reform Act (Chapter 9:23) and one count of escape from lawful custody as defined in section 185 (1) (a) of the Criminal Code.  Applicant was remanded in custody and is currently incarcerated at Khami Prison awaiting trial.  Applicant applies for bail pending trial and contends that he is a suitable candidate for bail.  The application is opposed by the state on two principal grounds.  The state avers that if granted bail applicant is likely to abscond and that applicant is likely to commit suicide.  After hearing argument on the matter I granted the application.  These are my detailed reasons for the decision.

Background Facts

During the month of April 2022 applicant was requested by his sister Ntombi Ndlovu to take care of her 12 year old daughter, the complainant in this matter.  The complainant joined applicant’s family in Hillside, Bulawayo, on the 4th of April 2022.  The complainant was transferred from Sacred Heart Primary School in Esigodini to Wonderpark Primary in Hillside.  On 29th August 2022 complainant’s mother who had just arrived from South Africa requested to take the complainant to her school where she was doing holiday lessons.  After taking her daughter to school, complainant’s mother requested to take her to Old Lobengula.  Later that same day accused received a phone call from Hillside Police Station. He was requested to report at the Victim Friendly Unit.  Accused was shocked and surprised when he was informed that rape allegations had been made against him.  Accused was advised that the rape had occurred between July and August 2022.  Initially accused attended at the Police Station on his own.  He left the police station before the formalities of his detention were done.  Accused says he wanted to collect his medication from his houses. Accused handed himself to the police on the 30th of August 2022.  He was immediately detained.

SUBMISSIONS BY THE APPLICANT

The applicant submits that he is a suitable candidate for bail.  He denies the allegations and avers that he never sexually assaulted the complainant in any manner whatsoever.  He asserts that his house is under Closed Circuit Television surveillance and that the police are free to access the surveillance footage for the relevant period.  Applicant submits that the allegations against him are actuated by malice and driven by a senior member of the family in a bid to silence him in his quest to know his biological mother.  To buttress his assertions, applicant states that at one time he sent the grandfather of the victim to go and ask his father who his mother was.  Applicant further states that throughout the entire period between July and August 2022, the complainant was in constant communication with her mother. No allegations were ever raised against him.

As regards the allegations of rape applicant avers that there is apparent contradiction in the complainant’s version and what her mother says transpired.  Applicant notes that the victim’s mother alleged that when she examined the complainant’s pant she observed some blood stains on the pant on the 29th of August 2022.  Doctor R. Mbedzi examined the victim on the 30th August 2022. He observed no injuries and no vaginal tears contrary to the averrements by the complainant’s mother.  The Doctor did confirm in his report that there was no hymen present at the time of the examination.

Applicant contends that he has no desire to abscond hence he surrendered himself to the police on his own volition.   Applicant denies that he habours any intention to commit suicide.  Applicant submits that due to his co-operation the police docket is now complete.  Applicant is prepared to report at Hillside Police Station every Friday and as part of his bail conditions. He is ready to surrender title deeds to his immovable property with the court.

SUBMISSIONS BY THE RESPONDENT

The state opposes the application for bail on the grounds that the applicant is a flight risk and that he is unlikely to stand trial if granted bail.  The state further states that applicant is a danger to himself and is likely to commit suicide if he is released on bail.  The state contends that the applicant is facing a very serious offence which is likely to induce him to abscond.  In support of its assertions, the state indicates that when applicant was called by the Zimbabwe Republic Police, Hillside Station after they had received a report of rape, the applicant attended at the Police Station.  The state alleges that the applicant fled from the Police Station.  The state concedes that applicant surrendered himself to the police on 30th August 2022.  The state further concedes that the applicant did not attempt to commit suicide before he voluntarily surrendered himself to the police.

The state submits that the complainant made a report to her mother promptly and the medical report shows that the hymen was penetrated.  The state contends that there is a prima facie case against the applicant and that there is a high likelihood that he will be convicted and sentenced to a lengthy prison sentence.

THE LAW

In terms of section 50 (1) (d) of the Constitution of Zimbabwe, No. 20 (2013), any person who is arrested must be released unconditionally or on reasonable conditions pending a charge or trial unless there are compelling reasons for their continued detention. It is trite law that compelling reasons for the denial of bail are encapsulated in section 117 (2) (a) of the Criminal Procedure and Evidence Act (Chapter 9:07).  These are the likelihood to disturb public safety or the likelihood to commit further offences.  The state placed reliance on the case of State v Jongwe SC 62-02.

In Munsaka v The State HB 55-16, MATHONSI J (as he then was) held as follows at page 3 of the cyclostyled judgment:

“All that an arrested person is required to do is to apply for bail.  The onus of showing the existence of compelling reasons for continued detention cannot possibly be his because he desires his release on bail.  Therefore section 50 (1) (d) of the Constitution has shifted the onus of proof to the state to establish the existence of compelling reasons why the arrested person should remain in detention.”

In State v Hussey 1991 (2) ZLR 187 (SC) EBRAHIM JA stated thus at page 190 A:

“I do not understand that either the Chiadzwa or Maretera cases supra are authority for the proposition that the mere fact the offender is facing a serious offence … justifies his incarceration pending trial.  It is clearly a factor that should be taken account of together with other factors …. but can never be the only factor to justify keeping alleged offenders in custody.”

I observe here, that where an allegation that an accused person is likely to abscond is made, this ought always, to be substantiated by cogent evidence.  The applicant in this matter surrendered himself to the police.  Applicant states in his bail statement that he was shocked by the nature of the allegations.  Applicant denies making any threats to commit suicide.  The applicant did not attempt to commit suicide but instead handed himself to the police for the law to take its course.

In Muzvongi v The State HB 03-19 this court held that:

“In the present application, whilst recognizing the applicant’s presumption of innocence, the overriding consideration is the fact that applicant has a propensity to commit similar offences if granted bail…..  And the likelihood to interfere with investigations if applicant is granted bail pending trial is a real possibility, and not a mere possibility.”

DISPOSITION

On the facts of this case I am satisfied that the interests of justice will be safeguarded by the imposition of stringent bail conditions.  The court is alive to the fact that the presumption of innocence still operates in favour of the applicant. That presumption is a fundamental principle of the criminal justice system. In this matter, there are no compelling reasons for the continued detention of the applicant pending his trial.  In applications of this nature, the paramount consideration is the interests of the proper administration of justice.  The police docket is ready for prosecution and therefore, there is no likelihood of the interference with evidence by the applicant. Applicant is not a flight risk as shown by his voluntary surrender to the police.

In the circumstances the following order is made:-

The application for bail pending trial be and is hereby granted in terms of the Draft Order.

Ncube and Partners, applicant’s legal practitioners

National Prosecuting Authority, respondent’s legal practitioners