Simbarashe Mabvudzi v The State

### Preamble
HH 129-10
B610/10
SIMBARASHE MABVUDZI.
versus
THE STATE
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SIMBARASHE MABVUDZI.
versus
THE STATE

HIGH COURT OF ZIMABWE
BHUNU J
HARARE, 15 June 2010 and 30 June 2010

F Murisi, for the applicant
T C Nyasha, for the respondent

BHUNU J: The applicant is a 28 year old polygamist with four wives. He is in remand prison on allegations of having raped the 13 year old complainant. The facts leading to the alleged rape are somewhat common cause. The applicant is alleged to have entered into a forced marriage with the complaint with the connivance of her father much to the chagrin of her mother.

The applicant took the complainant to his home as his wife in December 2009. While he was living with the complainant as his wife he allegedly raped her sometime in May 2010. Upon learning of this development her mother who did not approve of the marriage reported the matter to the police resulting in the applicant’s arrest. He now applies for bail pending trial. The complainant did not make any report until the matter had been reported to the police by her mother. Her conduct in this respect is understandable as she really had no one to turn to considering that her own father was in league with her alleged paramour.

Upon medical examination both the complainant and the applicant were found to be HIV positive. The applicant denies canal knowledge of the complainant but admits having kept her at his home in anticipation of marriage when she eventually became of age at 16 years of age.

The State opposed the application for bail on the grounds that the gravity of the offence and the likely penalty of aggravated rape where the applicant is alleged to have infected his victim with a deadly sexually transmitted disease is likely to induce him to abscond.. See S v Nicholas & Anor 1977 (1) SA 257.

Undoubtedly the applicant is facing a very serious charge the consequences of which are too ghastly to contemplate considering that the complainant is alleged to have been infected with a fatal sexually transmitted disease. That being the case, I have no difficult in accepting that the risk of abscondment is very high indeed. It is not necessary to prove at this stage who infected who. Suffice it to say at this stage the facts point at the applicant as the real culprit.

The risk of abscondment is coupled with the contention that the State has a strong case against the applicant. The undisputed facts in this case speak for themselves. The applicant through his own mouth admits marrying the complainant but disputes sexual intercourse. The veracity of his defence that he opted to wait until the complainant became of age before having sexual intercourse with her is for the trial court to determine. But at this juncture, the facts point to sexual intercourse having taken place because sexual intercourse is the basis of marriage. There is therefore the real possibility that the applicant had sexual intercourse with the complainant otherwise he would not have removed her from the custody of her parents after paying lobola. If he had wanted merely to maintain the complainant and provide for her educational needs of his prospective wife he could easily have done that while she was under the comfort of her parent’s custody. But how did he know that upon attaining the age of consent she was going to accept his hand in marriage?

I am therefore persuaded that the State has a strong case against the applicant.

The State also fears that if granted bail the applicant is likely to interfere with witnesses. The complainant is currently under the custody of her parents. Her father who is the head of the family and wields enormous power as already demonstrated has already married her to the applicant. He has already accepted lobola from him and is a possible accomplice in this crime. The possibility that the two might connive with each other to defeat the ends of justice cannot be excluded regardless of where they may be residing in this time and age of modern communication technology. That being the case the mere fact that the applicant has provided an alternative address far away from the complainant is no safety valve.

It has also been demonstrated that the applicant has an appetite of having sexual intercourse with multiple young girls, the risk of him committing similar offences is therefore very high.

In the result the application cannot succeed. It is accordingly ordered that the application for bail pending appeal be and is hereby dismissed.

Antonio & Associates, applicant’s legal practitioners.
The Attorney Generals Office, respondent’s legal practitioners
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