Bail
Application
ZHOU
J:
The
applicant was arrested on charges of robbery and rape, it being
alleged that on 16 October 2015 at or about 12 noon he attacked and
waylaid the complainant, a female aged 22 years. He was armed with a
catapult when he confronted the complainant and demanded that she
surrenders to him her handbag.
After
searching the handbag and taking her cellular phone, the applicant is
alleged to have force-marched the complainant into the bush and
forced her to remove her clothes. In the bush the applicant is
alleged to have produced a knife and forced the complainant to lie on
the ground. He raped her once.
The
complainant now seeks his admission to bail pending trial.
It
is trite that at this stage the presumption of innocence as enshrined
in section 70(1)(a) operates in his favour.
Further,
section 50(1)(d) of the Constitution provides that a person who is
arrested “must be released unconditionally or on reasonable
conditions, pending a charge or trial, unless there are compelling
reasons justifying their continued detention”.
If
the admission of a person to bail is not in the interests of justice
in the sense that the proper administration of justice would be
undermined by his release then there would be compelling factors to
deny that person the right to liberty.
In
the instant case the application is opposed on the ground that there
is a risk of abscondment on the part of the applicant given the
seriousness of the charges and the very strong evidence against him.
The
applicant was positively identified by the complainant. This is a
matter in which there is virtually no chance of a mistaken identity
given that the offence was committed in broad daylight around 12 noon
and the complainant had a lot of time to observe the applicant from
the time that he accosted her as she was walking and ordered her to
stop and surrender her bag to him. The accused thereafter ordered the
complainant into a bush having confiscated her cellular phone. In the
bush he ordered her to lie down before raping her. Those events could
not possibly take such a short time as would disable the complainant
to properly observe the applicant. For that reason the evidence
against him is indeed strong.
Given
the above factors the risk of abscondment is very real. This is a
matter in which the seriousness of the offence, the likely period of
imprisonment upon conviction and the very strong evidence against the
accused person constitute compelling grounds for the right to liberty
to yield to the proper administration of justice.
In
the circumstances, the application for bail must be and is hereby
dismissed.
Zimbodza
& Associates,
applicant's legal practitioners
National
Prosecuting Authority,
respondent's legal practitioners
