Richard Tafura v The State

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HCMTJ 1-25
HCMTCR 2176/24
RICHARD TAFURA
versus
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Application for Bail Pending Trial

Ms M. S Nyamwanza, for the applicant
Mr M. Musarurwa, for the respondent

SIZIBA J:

INTRODUCTION

1. The applicant has approached this court seeking to be admitted to bail pending trial in terms of s 117A of the Criminal Procedure and Evidence Act [Chapter 09:07]. He is facing a charge of rape contrary to s 65(1) of the Criminal Law (Codification and Reform) Act [Chapter 9:23].

2. If the facts alleged by the state against the applicant are anything to go by, then the ordeal that the victim, who is applicant’s 16 year old daughter went through can never be erased from her memory despite all the counselling that she may ever go through. Even if she may decide to forgive her father, their father - daughter relationship could never be fully repaired. Moreover, the societal anger, resentment and mistrust towards the applicant may prevail beyond his lifetime.

THE STATE’S ALLEGATIONS AGAINST THE APPLICANT

3. The allegations against the applicant are that sometime in August 2024 on a date which is unknown to the prosecution, he arrived from work when the complainant, her 16 year old daughter, had already retired for the night in her bedroom. This was at Nechitima Village under chief Mutambara in Chimanimani. It is alleged that after the applicant entered the house, he asked the complainant who is doing form 3 at Chakohwa High School in Chimanimani, to prepare him some tea. Whilst the applicant was drinking tea, he then informed the complainant that he needed to have sexual intercourse with her so as to appease his lucky charms. The complainant then went to sleep at her bedroom.

4. It is alleged that the applicant then took advantage of the unserviceable locking system at the complainant’s bedroom door to enter therein and tried to force himself upon the complainant. He was repulsed and resisted but he finally succeeded to have sexual intercourse with the complainant after overpowering her and ordering her to keep quiet.

5. The applicant was accordingly arrested and charged of the alleged crime in December 2024.

6. In seeking to be released on bail pending trial, the applicant has argued that he is innocent and that he was just framed up by the complainant’s mother who was upset that he married another wife seven years ago when he had a conflict with her. The applicant further contends that on the day in question, the complainant only opened the main door for him and went to sleep and that he prepared the tea for himself.

**THE LAW AND ITS APPLICATION TO THE CASE**

7. In terms of s 50 (1) (d) of the Constitution of Zimbabwe, the applicant has a constitutional right to be admitted to bail. He may only be denied bail if there are compelling reasons to show that his admission to bail will defeat the interests of justice. Section 117 (2) of the Criminal Procedure and Evidence Act outlines such factors that demonstrate that an accused’s admission to bail may put the interests of justice at stake.

8. In offences of this nature which are listed in the Third Schedule of the relevant Act, s 115 c(2) places the burden upon the applicant to show on a balance of probabilities that the interests of justice would not be defeated by his or her admission to bail albeit it is still the State’s Constitutional duty to show that there are compelling reasons why an accused person should not be released on bail pending trial.


9. When this matter was set down before me on the 3rd of January 2025, I heard arguments from both counsel and directed that the parties should provide me with further or supplementary submissions and documents so as to elaborate how the alleged offence came to light and how it is alleged that the applicant’s mother had obstructed the case. I also needed to have sight of the medical report as the respondent insisted that it had a strong case which could induce the applicant to flee and not stand trial whilst the applicant believed otherwise. In fact, the applicant’s counsel had not been shown any such medical report which the respondent sought to base its argument upon. Such medical report had not been availed to the court in the papers filed by the respondent.

10. I must point out that it is important that all the vital information relating to a case should be availed to the court in an application for bail so that the court can decide the issue of bail from an informed standpoint. A court of law cannot properly decide whether or not to grant bail from scanty information or from bald assertions by the parties.

11. Where it is alleged by the state that an accused person may be induced to flee and not stand trial because of the prospect of a lengthy prison term where the offence is serious and the evidence is strong, then such assertions must be supported by relevant evidence unless such evidence is common cause. This consideration becomes more important when the court is faced with bail consideration in cases of this nature where the allegations are of an exceptional nature as to raise public anger and outrage in the community.

12. In this case, the applicant faces a very serious offence of rape. If he is convicted, a lengthy prison term of imprisonment may be unavoidable. In addition, allegations of having sexual intercourse with one’s own daughter who is a minor naturally disturb society’s peace and arouse public anger and outrage in the community because such an act is against the very order of nature in human beings unlike in other animals which do not live according to moral codes. It is a resentful act that is abnormal in character and revolting in its nature even if the sexual act would have been consensual.

13. Sexual offences of this nature are on the increase in this country and there are mostly ritualistic in nature, being motivated mainly by wrong and weird advices from some unprincipled spiritual healers who promise their gullible patrons that some healing or luck would result from such unlawful, dubious and cruel acts. If the alleged perpetrators of these heinous crimes are to be quickly released back to the community which is still suffering from the shockwaves of such traumatizing publications without serious consideration by courts especially where there is corroboration that the victim was indeed abused, the community will lose confidence in the criminal justice system and they will eventually take the law into their own hands which would be not only undesirable but chaotic as well. These considerations are part of the law. Section 117 (2) (b) provides as follows:

“(2) 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—

(a) where there is a likelihood that the accused, if he or she were released on bail, will—

(i) endanger the safety of the public or any particular person or will commit an offence referred to in the First Schedule; or

(ii) not stand his or her trial or appear to receive sentence; or

(iii) attempt to influence or intimidate witnesses or to conceal or destroy evidence; or

(iv) undermine or jeopardise the objectives or proper functioning of the criminal justice system, including the bail system; or

(b) where in exceptional circumstances there is the likelihood that the release of the accused will disturb the public order or undermine public peace or security.” (Emphasis added)

14. Furthermore, section 117 (3) (e) of the Act elaborates as follows:


“(3) In considering whether the ground referred to in—

(e) subsection (2)(b) has been established, the court shall, where applicable, take into account the following factors, namely—

(i) whether the nature of the offence and the circumstances under which the offence was committed is likely to induce a sense of shock or outrage in the community where the offence was committed;

(ii) whether the shock or outrage of the community where the offence was committed might lead to public disorder if the accused is released;

(iii) whether the safety of the accused might be jeopardised by his or her release;

(iv) whether the sense of peace and security among members of the public will be undermined or jeopardised by the release of the accused;

(v) whether the release of the accused will undermine or jeopardise the public confidence in the criminal justice system;

(vi) any other factor which in the opinion of the court should be taken into account.” (Emphasis added)

15. In this case, the respondent has submitted that the applicant may interfere with the complainant since she is his daughter. This submission is not persuasive to me for many reasons. The first reason is that the respondent has failed to demonstrate why the sins of the applicant’s mother in her alleged attempts to interfere with the complainant should be visited upon the applicant if he did not authorize such actions from his mother. Secondly, it is common cause that the applicant and the complainant no longer reside at the same place of residence and furthermore, applicant has provided an alternative address at Maguta Village.

16. The respondent, in its supplementary submissions, did provide a copy of the medical report which showed that the complainant was examined by a medical doctor on the 1st day of November 2024. The doctor commented that the penetration was definite and that there was a vaginal tear at four o’clock position which had healed. Respondent’s counsel submitted that the doctor’s findings are consistent with the time of the alleged rape which is in August 2024. This submission is persuasive to me. In addition, the fact that the medical report confirms that the complainant was indeed sexually abused weakens the applicant’s argument or version that the allegations were merely fabricated or instigated by the complainant’s mother who has bad blood with him. There is surely something more to the complainant’s plight than the alleged bad blood between the applicant and the complainant’s mother and this is what the trial court will unravel.

17. Applicant’s counsel is correct in her submission that a medical report is not a basis for denial of bail because it does not identify a perpetrator. However, a medical report may be relevant in corroborating the fact that the victim was sexually abused or that the offence took place even though the identity of the offender or the element of consent may still be in issue. The submission that the applicant is still presumed innocent at this stage is also correct at law but that position does not disqualify the court from assessing the strengths and weaknesses of either party’s case or evidence in a bail consideration.

18. What is clear at this stage is that the applicant faces a serious allegation which if proven to be true at the trial will attract a lengthy prison term. The state’s allegations are strong as they are backed by accusations from the complainant and her mother as well as the medical report which corroborates that the complainant was indeed sexually abused. In the final analysis, the respondent’s submission that the applicant may be tempted to flee and not stand trial because of the seriousness of the allegations and the prospect of a lengthy prison term cannot be lightly dismissed by this court. See Jongwe v The State SC 62/02. Furthermore, the allegations levelled against the applicant are of such gravity as to cause public dismay if he is released on bail in face of these compelling reasons for his continued incarceration which the state has sufficiently pointed out.


19. The applicant has therefore failed to demonstrate that the interests of justice would not be jeopardized by his release on bail pending trial. This, in my view, is a case where the guilt or innocence of the applicant should be ascertained by a trial court first before he can be set free. In the result, the application for bail pending trial be and is hereby dismissed.

Nyamwanza & Associates, applicant’s legal practitioners
National Prosecuting Authority, respondent’s legal practitioners
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