MATHONSI J: The Applicant was convicted of one count of rape
by the Regional Magistrates' Court sitting in Bulawayo on the 13th
October 2010. He was sentenced to 15
years imprisonment of which 3 years was suspended on condition of good
behaviour. He has since appealed against
conviction only.
The
Applicant now applies for bail pending appeal arguing that his appeal has
prospects of success given that the evidence led against him by the state was
unreliable. Given that the hearing of
the appeal will take a long time he is likely to serve a lengthy period before
the appeal is disposed of and for that reason he ought to be released on bail
pending appeal.
The
state did not oppose the application and in his very brief response, Mr Mabhaudi for the state stated as
follows:
“BE PLEASED TO TAKE NOTICE that the Respondent is not opposed to the Applicant
being granted bail pending appeal for the following reasons:-
The victim indicated that one
NHLANHLA was cutting her with a knife.
No further probing was done on what that entailed in. The identity of this Nhlanhla was not yet
again verified.
Conditions 1 -3 of the order
filed of record are not opposed but the day of reporting in paragraph 4 must be
changed to Friday.”
I was not sure that this concession
had been properly made as a result of which I requested the record of proceedings
to be made available to me which was done.
Having gone through the record I felt that there was a need for the
matter to be set down for hearing for purposes of exhausting the issues arising
from the application.
An application for bail pending
appeal is different from one made pending trial in that while in the latter
situation the presumption of innocence favours the Applicant, in the former the
Applicant having been convicted of the crime, he/she no longer enjoys that
benefit. Kanyoka and Others v S HB 102/10 at page 3.
As stated in S v Kilpin 1978 RLR 282 (A) at 285 H and 286A:
“The principles governing the
grant of bail before conviction are entirely different from those governing the
grant of bail after conviction and the difference is even more marked when the
guilt of the accused is not in issue and the usual sentence for the offence is
an effective prison sentence of substantial duration. It is wrong that a person who should properly
be in goal should be at large and nothing is more likely to encourage
frivolous and vexatious appeals than the attitude adopted by the magistrate in
the present case.” (my emphasis).
In considering an application for
bail pending trial the court is guided by the prospects of success on appeal
and the issue of whether the Applicant will not abscond is released on
bail. Clearly the incentive for
abscondment is very high where the Applicant has no prospects of success on
appeal.
The issues which were before the
trial court in this matter were very narrow indeed and presented very little
difficulty. A 3 year old girl complained
to her aunt of being hurt in her private parts by one Nhlanhla. At first they ignored her complaint but she
persisted over a long period of time until they were forced to
investigate. On a day when she wet
herself in her sleep they examined her and discovered that her vagina was
dilated.
This prompted her mother to take her
to hospital where she was examined by a doctor who compiled a medical report. The said medical report was produced in court
by consent and was never challenged at all.
It concluded that the complainant had been sexually abused. That therefore put to rest the issue of
whether she had been raped. She
certainly was.
Having determined that she had been
raped, the only issue remaining was the identity of the assailant. The complainant, who impressed the trial
court as “a very clever child and was up and about in the separation room as
she led evidence”, pointed to the Applicant as the person who had hurt her.
With the greatest respect to state
counsel it is not correct that the identity of Nhlanhla was not verified. The complainant made it very clear that it
was the Applicant who abused her and did not suggest the possibility that
someone else did. She was asked to
identify the person who had hurt her from among the people who were in court
and she did not hesitate to pick the Applicant.
Some doubt has also been raised
about the complainant's testimony that Nhlanhla cut her with a knife in her
private parts. Apart from the fact that
it is not an issue of earth-shattering magnitude, it is consistent with the
abuse. A three year old would
understandably conclude that what hurt her was a knife even if it was a penis,
something she would not be expected to comprehend at her age.
To say that there was a boy called
Nhlanhla in the neighbourhood who is aged about 4 years who may have raped the
complainant is simply disingenuous and does not deserve to be taken seriously
especially against the background of the Applicant, a 27 year old, having been
picked out by the complainant.
I therefore come to the conclusion
that the appeal has very little prospects of success and the application is not
meritable. In any event the day of
reckoning is nigh as the record of proceedings has been fully transcribed. It remains for the Applicant's legal
practitioners to arrange for the set down of the appeal early next term.
Accordingly the application for bail
pending appeal is dismissed.
Sansole and Senda, applicant's legal
practitioners
Attorney General's Office
Criminal Division, respondent's legal
practitioners
