MOFFAT MUGWIRA
versus
STATE
HIGH COURT OF ZIMBABWE
CHIWESHE JP
HARARE, 27 September 2010 and 6 October 2010
Z. Machalaga, for the applicant
A. Masamha, for the respondent
BAIL APPLICATION
CHIWESHE JP: The applicant was arraigned before the senior regional magistrate, Eastern Division, charged with contravening s 66 (1) (b) (i) of the Criminal Law (Codification and Reform) Act [Cap 9:23], that is sodomy. The allegations were that on 6 January 2009 and at number 6334, Unit J, Seke, Chitungwiza, he unlawfully and intentionally inserted his erect penis into Nongerai Zinhuka’s anus without his consent. He was convicted despite his plea of not guilty and sentenced to ten years imprisonment of which four years imprisonment was suspended for five years on the usual conditions of good behaviour.
He has appealed against both conviction and sentence. The appeal is pending. He now applies for bail pending the disposal of that appeal. As in all applications of this nature the court has the discretion to grant or decline the relief sought. In exercising that discretion in a case where the application relates to bail pending appeal, the court will be guided by the following principles:
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the prospects of success of the appeal,
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the likelihood of the accused absconding in light of the gravity of the offence and the sentence imposed,
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the likely delay before the appeal can be heard and
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the right of the individual to liberty.
These principles have been enunciated in a number of cases, such as State vs Dzawo 1998 (I) ZLR 356 and State vs Bennett 1985 (2) 205.
Of the above principles, the most cardinal in an application of this nature is whether the appeal has prospects of success. In this regard the applicant need not show that the appeal will certainly succeed. Rather, all he needs to show is that the appeal is reasonably arguable and that it is not manifestly doomed to fail. See State vs Kilpin 1978 RLR 282.
This appeal is arguable in the following respects:
The complainant alleges that he was sodomised by the applicant, a friend of his brother, whilst sharing the same bed but in different blankets in a bedroom at the house he and his elder brother shared. He had on several occasions within a period of less than an hour after they retired to bed been disturbed by the applicant’s groping hand. He did not feel the applicant penetrating his anus. He was awakened only after the applicant had already penetrated and discharged semen. His reaction was to get up and report to his brother who was in another room. Thereafter they both left for the police station to make a report. Neither the complainant at the time of the commission of the offence, nor his brother thereafter, confronted the applicant accusing him of this act. Is this the normal reaction of persons confronted with this sort of occurrence?
The complainant says he was putting on a boxer short and inside it an underwear. Firstly, how did the applicant open up the complainant’s separate blankets, work around the boxer short and then the underwear without disturbing the complainant’s sleep? The complainant says the boxer short was soiled with semen. What about his underwear? He says he showed the soiled boxer short to his brother and the police, both of whom confirm seeing the semen on it. This boxer short was not produced in court. Instead the complainant subsequently washed it, thereby depriving the state of an important exhibit.
The complainant was medically examined four days (or is it two days?) after the event. The medical examination did not reveal any signs of forced entry such as bruises and larcerations.
Finally, the applicant hinted that the complainant and his brother might have had political motives to falsely implicate him. The trial magistrate did very little to explore this line of defence. He should have in view of the fact that he was dealing with an unrepresented accused person.
Clearly from the above cursory observations, it cannot be said that the appeal is not reasonably arguable or that it is manifestly doomed to fail.
For these reasons I admitted the applicant to bail pending appeal on appropriate conditions.
C. Mutsahuni, Chikore & Partners, the applicant’s legal practitioners
Attorney General’s office, legal practitioners for the state
