Bail
Application
MUSHORE
J:
The
applicant applied for bail pending trial.
The
applicant is awaiting trial on a charge of rape in terms of section
65 of the Criminal (Codification and Reform) Act [Chapter
9:23].
I
dismissed the application.
Circumstances
surrounding the charge are that sometime in October 2017, the
applicant (a 35 year old male) was conveying school children in his
commuter omnibus from school to home. Complainant (aged 7) years) was
one of those children. It is alleged that when the applicant dropped
the children off, he told complainant not
to disembark. Accused then drove complainant to a bush area nearby.
He got into the back passenger seat where complainant was seated,
pulled up her uniform, removed her pants and raped her.
After
he had raped complainant, he wiped the bloodstains off the seat, and
told complainant to go home. He told her not to report the rape.
Sometime
later, when complainant's mother was bathing her, she noticed that
complainant's private parts were different. When she asked her
daughter that is when complainant told her mother what happened. A
report was made to the police leading to the applicant's arrest. A
medical report was done. The report was not made part of the record
neither was the Form 242.
Accused's
defence was an outright denial that he had ever been alone with
complainant. He denied that he had raped her. However, he admitted
that he knew complainant as a pupil whom he used to drive from
school.
His
application for bail was predicated upon his denying that he raped
complainant; and that he had co-operated with the police and that he
has lived a crime-free life. He said he had witnesses who could
verify that he had never been alone with the complainant without
providing the names of the witnesses.
The
respondent stated that whilst it had no objection to the applicant
being admitted to bail, its concession would depend on the following;
“(That)..applicant
is enjoined to proffer an alternative address to allay fears of
interference. The respondent has considered the age of the
complainant and that she is a school pupil. The risk of interference
has to be minimized.”
Section
117 to grant bail provides that the denial of bail “shall
be in the interests of justice”.
Such a determination is made by a consideration of all interests, and
not solely upon the interests or rights of the applicant alone.
Whilst it is true that the applicant has a right to be presumed
innocent, the interests of justice can best be evaluated by a proper
application of the peremptory provisions of the Constitution.
Section
46 of the Constitution enjoins me to:
“46(1)
give full effect to the rights and freedoms enshrined in the
Declaration of Rights”.
Section
86(1) of the Constitution directs the courts to recognize that where
there are existent rights, such rights “must
be exercised reasonably and with due regard for the rights and
freedoms of other persons”.
Section
46(2)of the Constitution requires the courts to be cognizant of the
Declaration of Rights, “when
developing the common law and customary law, every court must promote
and be guided by the spirits and objectives of this Chapter.”
The
complainant, being a minor, is accorded special rights by the
Constitution. Section 81(3) provides complainant with “adequate
protection by the courts, in particular by the High Court as their
upper guardian.”
Further
81(2) deems that:-
“81(2)
A child's best interests are paramount in
every matter
concerning the child.”
When
interpreting legislation, a determination by the Court shall not:
“47…
preclude the existence of other rights and freedoms that may
be recognized
or conferred by law, to the extent that they are consistent with this
chapter.”
Thus
the interest of justice in terms of section 117(2) when a refusal to
grant bail is arrived at, must
be measured within the confines of the peremptory provisions of the
Constitution cited above.
My
dismissal of the application was reposed upon my finding that
admitting the applicant to bail at this juncture would:-
“undermine
or jeopardise the objectives or proper functioning of the criminal
justice system, including the bail system.” (Section 117(a)(2)(iii)
and (iv)).
This
is a Third Schedule Offence which is not only serious, but rampant to
the extent that the courts are enjoined to include the perceptions of
the public of the judicial system insofar as whether there is a
properly functional judicial system.
Furthermore,
I apprehend that the complainant would be most definitely intimidated
in hearing that the applicant is out on bail.
Although
the applicant's counsel suggested that the order sought should also
prohibit the applicant from driving his commuter omnibus, it is my
view that such prohibition would not in itself reduce the risk of
complainant being intimidated and ultimately adversely influenced.
Beitbridge
is a small community which is assumedly why the respondent averred
that it feared that there was a risk of interference of the child if
the applicant remained at the same residence.
Accordingly,
and having examined all the above facts, I determined that the
applicant was not
a proper candidate for bail.
In
the result, I dismissed the application.
Nyikadzino,
Simango and Associates,
applicant's legal practitioners
B.
Murevanhema, respondent's
legal practitioners
