Peter Muzulu Versus THE State

### Preamble
1
HB 61-19
HCB 101/19
XREF CRB MPH 72/19
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PETER MUZULU

versus

THE STATE

HIGH COURT OF ZIMBABWE

MABHIKWA J

BULAWAYO 15 AND 17 APRIL 2019

Bail Application

I R Mafirakureva for the applicant

N Ndlovu for the respondent

MABHIKWA J:	The applicant herein faces twenty (20) counts of Aggravated Indecent assault as defined in section 66 of the Criminal Law Codification and Reform) Act, [Chapter 9:23].

The brief facts as alleged by the state are that the applicant is a police officer 35 years old and is based at Plumtree Police Station.  It is further alleged that the Officer-in-charge of Zimbabwe Republic Police Mpoengs received a tip off about cases of sexual abuse among pupils at Bhulu primary school.   On 26 March 2019, the said officer-in-charge assigned the applicant to investigate the allegations of sexual abuse.  The applicant got to the school and sought an interview with pupils.  The school Head availed twenty (20) girls and one (1) boy for the interview.  The applicant also requested for a classroom which the school Headmistress, one Simela Sibutha availed to him and attended to other school business.  In all 20 girls, the applicant would allegedly call one girl at time and ask a series of questions including the question whether she is in love with a male school pupil.  Thereafter, he would allegedly call the girl (complainant) to come closer  to him.  He would then allegedly fondle the girl’s breasts and ultimately put his left hand inside the complainant’s pant and then insert his finger into her vagina without the girl’s consent.

A reading of the state’s summary of case, shows that when it came to the 14 or 15 year olds, the accused would allegedly unbutton their school uniforms before fondling the breasts and inserting his finger into the vagina.  On the only 16 year old girl, the applicant allegedly unbuttoned her uniform, fondled her breasts and thereafter went further and lowered her pant to knee level before inserting his finger into her vagina, again without her consent.

The applicant filed an application for bail pending trial accompanied by a bail statement in terms of the rules of court. He states in his bail statement that he is a member of the Johane Masowe apostolic sect.  He has (7) seven wives and 15 children, the eldest being 13 years whilst the youngest is 5 months old.  He denies the 20 counts of aggravated indecent assault.  The applicant has urged the court to presume him innocent until proven guilty, and has claimed entitlement to bail in terms of section 117 (1) of the Criminal Procedure and Evidence Act as read with section 150 (1) (d) of the Constitution of Land.  He has cited a number of decided cases in support of his entitlement to bail.  Applicant has referred to what he calls “apparent lackadaisical investigative shortfalls” in the case.

Counsel for the applicant therefore argued, both in the application and in submissions in court, that there were no compelling reasons as envisaged by section 150 (1) (d) of the Constitution necessitating his continued detention.  He argued that he is not a flight risk in that after his interview at Bhulu school he went to his rural home in Chipinge on occasional leave. When the allegations surfaced, he was called by his mother station (Plumtree) and he “voluntarily” went back there to attend to the allegations against him when he could escape and had the time and space to do so.  He argued further that with a family of 7 wives and 15 children he would rather stand trial and clear himself rather than abscond.  	Applicant averred also that fears of absconding and interference could be curtailed by appropriate conditions such as those he proposes in his draft order.

Finally, counsel argued mostly what would be matters for evidence and cross-examination in trying to prove that the state has a weak case against the applicant and therefore that the balance of probabilities favoured his release on bail.

Counsel was a reminded of course that the court cannot be drawn to delve so much into argumentative arguments of evidence in a bail application as it is not at that stage dealing with the merits of the case.

The state on the other hand, argued in opposition of bail that in terms of section 115 (c) (2) (ii) as read with part 1 of the 3rd Schedule to the Criminal Procedure and Evidence Act, [Chapter 9:07], where the victim of an alleged crime is under the age of 16, the onus is on the applicant to satisfy the court that it is in the interests of justice that he be released on bail.  The state argued that the applicant has not discharged that onus.

The state further argued that if convicted of the many counts of aggravated indecent assault, applicant is likely to face long imprisonment and that this was inducement enough for him to abscond.

Finally, the state urged the court, as the upper guardian of all minors in terms of the Constitution to judiciously consider whether it was in the best interests of the minors and justice to release the applicant on bail.

It should be noted that section 50 (1) (d) of the Constitution as read with section 117 of the Criminal Procedure and Evidence Act, [Chapter 9:07], establishes a general entitlement of an accused to pre-trial bail.  However, if the circumstances indicate that the accused’s release on bail would endanger specific, general, or broad interests of justice, these would be taken as compelling reasons to deny him bail and the court would properly deny him bail.  While taking cognizance of the presumption of the applicant’s innocence and his right to liberty until proven guilty, the court will only lean in favour of granting bail if the state has not shown any compelling reasons for the applicant’s continued detention and if the interests of justice will not be jeopardized by such grant.

Section 117 (2) of the Criminal Procedure and Evidence Act reads as follows:

“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—

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

(iv)	undermine or jeopardise the objectives or proper functioning of the criminal

justice system, including the bail system.”

In S v Tsvangirai – 2003 (1) ZLR 650 @ 664 E-F MAVANGIRA J then quoted with approval Burchell and Hunt’s South African Criminal Law and Procedure Vol. 1 at page 317 where the learned authors state that

“--- in its endeavour to protect the administration of justice, the court should not lose sight of its duty to safeguard the liberty of the subject, and a balance should be struck between these interests.  While most reluctant to consider the merits of, or to say anything which might savour of prejudging the case, the court will consider all the circumstances with a view to deciding whether the grant of release is likely to prejudice the ends of justice.”

In State v Aitkem (2) 1992 (2) ZLR 463 (S) the court also held the view that though it would not wish to deal with the merits of the charges faced by the accused at bail stage, the strength or otherwise of the state case is a salient factor in deciding whether or not to admit an applicant to bail.

Also in Aitkem and Another v Attorney General 1992 (1) ZLR 249 (S) it was held that in judging the risk that an accused person would abscond, the court would, among other factors, be guided by the following:

a)	The nature of the charges and the severity of the punishment likely to be imposed upon conviction.

b)	The apparent strength or weakness of the state case.

c)	The credibility of the accused’s own assurance of his intention and motivation to remain and stand trial.

In casu, the court did point out to counsel for the applicant that without delving into the merits, it was worrying that whilst he has an onus to discharge, applicant had not given any likely explanation or at least an averment as to why all 20 girls would suddenly claim that he indecently assaulted them if he had not.  Counsel then said that there was a conspiracy by teachers at the school as his interviews with the girls had unearthed that some teachers were sexually molesting the girl pupils and the School administration was covering up for them.  He argued that the girls had just been used to make the false claims as part of the cover up.  Counsel was however at pains to explain why then the applicant had gone to Chipinge on leave having done nothing about his findings, the main object of having gone to Bhulu in the first place.  He does not seem to have told his principals about his findings or to have arrested anyone before going on leave.

The court is inclined to agree with counsel for the state that this is just a conspiracy theory proffered by applicant, albeit from the bad belatedly, a conspiracy which has no aota of probability in it.  Whilst applicant in his bail statement argued that the charges against him should not stick because all the girls failed to report on the same day, the state argued that the girls did in fact report to a teacher on the same day.  Counsel went further to show that the medical reports, which are part of the application, reveal that within 24 hours, some of the girls had been medically examined.  The rest were done within two or three days.  This shows that the report was indeed made the same day and it is inconceivable that the theory of conspiring against the accused would have been cooked up by teachers and perfected so that all the girls, with no exception would abide by it.

It is clear that the state has a strong case against the applicant.  When coupled with the fact that if convicted, he is likely to face a lengthy prison term considering the circumstances of the case, this may be an inducement for him to flee.  In my view, the proper import of section 117 (2) (ii) and (IV) does not only denote that application should show that he will avail himself when trial starts.  It means that if the circumstances are that at any time right up to sentence, an accused may jeopardise the objective or proper functioning of the criminal justice system, including the bail system, the court can properly deny him bail.  It does not necessarily follow in my view, that because the applicant came all the way from Chipinge back to his workplace in Plumtree when called, then it is proof enough that he will stand trial, let alone receive sentence.

Further in my view, the import of one of the considerations in State v Aitkem was that an accused’s own assurance of his intention to stand trial be put to test.  It is the credibility of such assurance in the circumstances of the particular case that should be considered in my view, rather than the mere pronouncement of the assurance itself.

This court will consider also that this is one case wherein an accused’s release on bail may very well cause outrage to the community as well as disturb public order or undermine public peace as envisaged by section 117 (2) (b) of the Criminal Procedure and Evidence Act.

In the circumstances, it is the court’s finding that there are compelling reasons for the applicant’s continued detention.  He is a flight risk.

The application is accordingly dismissed.

Moyo and Nyoni, applicant’s legal practitioners

National Prosecuting Authority, respondent’s legal practitioners