Thembani Mukanyani v The State

### Preamble
1
HB 59/25
HCBCR 2286/25
---------


THEMBANI MUKANYANI

Versus

THE STATE

IN THE HIGH COURT OF ZIMBABWE

NDUNA J

BULAWAYO 9 AND 10 MAY 2025

Bail pending trial

Mr M Mahaso for the applicant

Ms TP Mutarisi for the state

NDUNA J: 	This is an application for bail pending trial. It is opposed by the state. The applicant faces one count of murder. It is the state’s allegation that the accused committed the offence with one Cabangani Mathe. In fact, what the state alleges is that accused procured the deceased and handed her over to Cabangani Mathe who took the deceased to a spot in Botswana and murdered her.

The state’s allegation needs to be summarised here. The applicant had brought the deceased to the police station. It was their aim that an identification parade be held involving Cabangani Mathe. Cabangani Mathe was the prime suspect in the matter of rape which was being investigated by the police. Whilst there at the police station the deceased was given a place to sleep under the victim friendly facility. At that moment the applicant entered into an un-official conversation with the Cabangani Mathe. The conversation yielded the deceased being handed over to Cabangani Mathe. Cabangani Mathe took the deceased and the deceased was later found murdered. It was this role for which applicant was arrested. He appeared in court on allegations of murder as the state now allergises he committed the offence of murder with Cabangani Mathe.

It is against this background that the applicant duly represented applies for bail.

Bail applications are regulated by section 116 of the Criminal Procedure & Evidence Act [Chapter 9:07]. Generally, an accused person in custody is entitled to be released on bail if the court is satisfied that the interests of justice permit. Section 116 generally provides that an accused who is in custody in respect of an offence shall, subject to constitutional provisions, be entitled to be released on bail at any stage preceding his or her conviction in respect of such offence, if the court is satisfied that the interests of justice so permit.’ It must be stated that on the other hand, the interests of justice do not permit the release from detention of an accused where one or more of the following grounds are established, namely:

‘(a)	 Where there is the likelihood that the accused, if he or she were released on bail, will endanger the safety of the public or any particular person or will commit an offence; or

(b) 	Where there is the likelihood that the accused, if he or she were released on bail, will attempt to evade his or her trial; or

(c) 	Where there is the likelihood that the accused, if he or she were released on bail, will attempt to influence or intimidate witnesses or to conceal or destroy evidence; or

(d) 	Where there is the likelihood that the accused, if he or she were released on bail, will undermine or jeopardise the objectives or the proper functioning of the criminal justice system, including the bail system; or

(e) 	Where in exceptional circumstances there is the likelihood that the release of the accused will disturb the public order or undermine the public peace or security.’

It is in this instance that the accused seeks to be admitted to bail. The state is opposed to the admissions of the accused to bail. The state has emphasised on the court to note that the applicant knew very well that his co-accused was facing rape allegations. Despite that knowledge he facilitated the deceased who was the victim of the rape to be left alone with the person who had allegedly raped her. This was contrary to the dictates of the matter he was investigating which wanted the conduct of an identification parade. Above that the said individual was not yet arrested by the police and efforts were being made to have the person arrested. Instead of effecting the arrest the applicant had left the victim in the hands of the co accused.

What is clear accused was doing was to interfere adversely with the investigations which were going on touching on the rape matter. He let the witness being taken over by the accused. That interference is apparent. It then led to graver allegations of murder of the victim of the rape.

In S v Bennett 1976(3) SA 652 (C) it was opined that in the exercise of its discretion to grant or refuse bail, the court does in principle address only one all-embracing issue: Will the interests of justice be prejudiced if the accused is granted bail? And in this context, it must be borne in mind that, if an accused is refused bail in circumstances where he will stand his trial, the interests of justice are also prejudiced. At the same time the court should determine whether any objection to release on bail cannot suitably be met by appropriate conditions pertaining to release on bail. In this case the accused has himself to blame. There is adequate proof of his illegal handling of the matter of rape which led to the complainant being taken over by Mathe and subsequently found murdered. The court is not saying Mathe then murdered the complainant.  It is applicant’s action of releasing the complainant to Mathe which complicated the whole issue leading to the complainant meeting her death.

There is also unrefuted claims that the applicant had tried to commit suicide. He is alleged to have consumed some poison which had led to his hospitalisation. So we have an individual who has demonstrated his desire to terminate his own life in view of the allegations.

Clearly the circumstances of this matter is that applicant must be denied the bail he seeks. He has demonstrated that he is unlikely to stand his trial for the charge of murder is facing.

Accordingly, bail is refused.

Liberty Mcijo & Associates, applicant’s legal practitioners

National Prosecuting Authority, respondent’s legal practitioners