Tanaka Tapfuma v The State

### Preamble
1
HH 845-18
B 1780/18
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TANAKA TAPFUMA

versus

THE STATE

HIGH COURT OF ZIMBABWE

MUZENDA J

HARARE, 18 December 2018

Bail Application

T. S. Chinopfukutwa,  for the applicant

Ms Y. Gurira for the respondent

MUZENDA J: The applicant is being charged with rape as defined in s 65 of the Criminal Law (Codification and Reform ) Act, [Chapter 9:23] it being alleged that on the date unknown to the prosecutor but during the year 2013 and at house number 43 Magwenzi Street, Chizhanje, Harare, accused unlawfully and intentionally had sexual intercourse with ALISHA SIMON knowing that she had not consented to it or realizing that there was a risk or possibility that she might not have consented to it. The complainant is aged 10 years and doing Grade 5 at Mabvuku Primary School. The accused /applicant is complainant’s uncle.

On the alleged unknown date of the commission of the crime, applicant called complainant inside the house when she was playing outside with her friends. Complainant obliged and when she was inside the bedroom where applicant was, she was ordered to remove her pant. Complainant refused to remove her pants and called out her grandmother who was outside, but she could not be heard. The applicant got hold of the complainant, removed her pant and laid her on the bed. Applicant went on top of the complainant and inserted his erect penis into the complainant’s vagina and had sexual intercourse with her once without her consent. After the act, complainant dressed and went outside the house crying. On the 22nd day of August 2018, complainant revealed the matter to the grandmother Dorothy Mangira and a report was made at Mabvuku police station.

The applicant in his statement in the bail application states that he is 18 years and gives his address as 43 Magwenzi Street, Chizhanje, Harare, the very address of the complainant! Applicant is currently unemployed and has no passport. He obviously supplied an alternative address as 1621 Chengaose Street, St Mary’s Chitungwiza. He applied for bail pending trial. The state is consenting to bail. After hearing the application I concluded that the state’s concession was not proper in my view. Applicant is an uncle to the complainant and will have access to her and is likely to interfere with evidence. The fact that in his application he gave his address as that of the complainant in my view shows he does not intend to leave that address and proffered an alternative address out of bail convenience. In any case he is not confined at that place and can easily, access and interfere with the complainant. It will be in the interests of justice if the applicant is to remain in prison until his case is finalized. It is ordered as such. The application is dismissed.

Mukwewa Law Chambers, applicant’s legal practitioners

National Prosecuting Authority, respondent’s legal practitioners