Makumbe vs State (HCC1/26) [2026] ZWCHHC 1 (30 January 2026)

3 HCC1/26 HCCCR 1763/25 CRBGKR157/25 JOSPAT MAKUMBE versus THE STATE HIGH COURT OF ZIMBABWE CHINHOYI, MUZOFA J, 5 January 2026 Application for bail pending trial T G Kuchenga for the applicant R Nikisi for the respondent MUZOFA J: [1] I dismissed this application for bail pending trial in an ex-tempore judgement. The applicant has requested for written reasons which are provided herein. [2] The applicant appeared before a Magistrate sitting at Gokwe Regional Court facing six counts of rape in contravention of s65 of the Criminal Law Codification and Reform Act (Chapter 9:23)’ the Criminal Law Code’. The complainants were aged between 7 and 9 years. By virtue of their ages, the applicant approached this court for bail pending trial. [3] The applicant and the complainants live in the same village at Matsanyamate, Chief Sai Gokwe. All the complainants are students at Mawisa Primary School. It is common cause that applicant’s homestead is along the way to the said school. [4] The State alleged that sometime in June 2025, around 1200 hours the complainants passed through the applicant’s homestead. They asked for water to drink. Instead of giving them water he asked the complainants to accompany him to his sorghum field which was nearby. At the field he then raped each complainant and threatened them not to tell anyone. [5] The matter came to light after one of the complainants told her aunt in November about the incident. It is only then that the rest of the complainants opened up and spoke about the rape. They were subsequently taken to Gokwe Hospital where they were examined. The applicant was arrested. The application. [6] In his application, through his counsel the applicant started from an erroneous premise that the onus was on the prosecution to show compelling reasons why he must not be admitted to bail. That position is wrong. As stated in Ellatone Bonongwe v The State HH 655/23 bail law is not a one size fits all affair. The procedure applicable in an application for bail in instances where the crime preferred is listed in the Third Schedule to the Criminal Procedure and Evidence Act [Chapter 9:07] ‘the CPEA’ and those relating to all other offences is different. [7] Section 117(1) of the CPEA provides every arrested and detained person a general right to be admitted to bail except where the court finds that it is in the interests of justice that bail be refused. The onus is on the State to show such compelling reasons. However, such onus is not on the State regarding all crimes as suggested by counsel for the applicant. Section 115 C(2)(a)(ii) of the CPEA places the onus on an accused person to show on a balance of probabilities, that it is in the interests of justice that he/she be admitted to bail. It implies that he/she must be in custody unless he shows that it is in the interest of justice that he be released. It provides, (ii) the accused person shall, if the offence in question is one specified in— A. Part I of the Third Schedule, bear the burden of showing, on a balance of probabilities, that it is in the interests of justice for him or her to be released on bail, unless the court determines that, in relation to any specific allegation made by the prosecution, the prosecution shall bear that burden; B. Part II of the Third Schedule, bear the burden of showing, on a balance of probabilities, that exceptional circumstances exist which in the interests of justice permit his or her release on bail; [8] The above provision means there is a reverse onus where the accused is charged with an offence that is listed in the Third schedule of the CPEA. In the Bonongwe case(supra) the Court succinctly expressed what this means as follows, “What that entail is that an applicant to bail is required to adduce evidence to prove the averments he/she makes in his/her application. In matters where the prosecution bears the burden all that an accused needs to do is state for instance that he is not likely to abscond and leave the State to illustrate why they say he will do so. An applicant who simply makes bald assertions as if he has no onus to discharge does himself/herself a big disservice.” [9] In his application, the applicant said he is not likely to abscond. He has a fixed place of abode and has no travelling documents. On interference with witnesses, he offered to leave the village and stay with someone to guard against any likelihood to interfere. On the whole he denied the offence and pleaded his innocence. [10] The State opposed the application. The main basis for opposition is that the applicant is likely to interfere with witnesses since they are neighbours. His release may strike some fear in the complainants who are vulnerable witnesses. The State relied on the case of S v Makuyana HMT 11/18 that where the applicant and the complainant stay together there is a high likelihood for direct or indirect interference. The Law [11] Both the applicant and the State set out the applicable law in such an application. [12] In assessing whether an applicant should be released on bail, a court is guided by the principle underlying the bail system. The bail system seeks to secure the attendance of the accused for trial, to preserve evidence and not to prejudice the proper administration of Justice. These factors are set out in S117(2) and (3) of the CPEA. [13] Where there is no risk of an interference with the said factors bail must be granted. As correctly stated in S v Dhlamini HH 57/09 cited for the applicant that granting bail to an applicant benefits both the State and the applicant. Application of the law to the facts. [14] There is no doubt that the applicant has a fixed place of abode. The likelihood to abscond is not an issue. The State opposed the application on the premise that there is a high likelihood that the applicant may interfere with evidence. [15] Likelihood to interfere with witnesses directs the Court to s117(3) (c) of the CPEA. The Court must consider: (i) Whether the accused is familiar with any witness. (ii) Whether any witness has made a statement. (iii) Whether the investigations are complete. (iv) The accused’s relationship with any witness and the extent to which the witnesses may be influenced by the accused. v) … vi) The ease with which any evidence can be conceded or destroyed. vii) Any other factor which in the opinion of the Court shall take into account [16] The applicant does not dispute that the complainants indeed used to pass through his homestead to get some water to drink. It is also not in dispute that they live in the same village. They are known to each other. There was obviously some relationship and some trust between the applicant and the complainants. [17] The complainants are young, vulnerable children. The applicant is an elderly person likely to be of some influence. His release, even without any communication with the complainants is likely to affect the complainants. Children are highly impressionable. [18] The applicant tendered an alternative address where he will stay with his son. Unfortunately, the applicant will still be in the same jurisdiction under Chief Sai. To my mind there is not much difference. His wife and family would still be in the same community where the complainants reside. [19] According to the State, the medical affidavits confirm interference. Although this is a triable issue at this stage the bail court is at large to consider the strength of the State case. With that information, it is the Court’s considered view that the vulnerable witnesses’ evidence can only be safe guarded by keeping the applicant in custody pending trial. [20] The Court is indeed required to strike a balance between the personal interests of the accused against the interests of Justice. The accused is of advanced age , he said he is HIV positive. It may be in the interest of justice to keep the elderly out of custody. However, that factor must be considered in light of the offence. This is a rape case of six young children who stayed in the same village with the applicant. His advanced age seems to pale into dimness if juxtaposed with the offence and the victims. It is for the said reasons that the following order was made. Application dismissed. James Majatame Attorneys at Law, the applicant’s Legal Practitioners. National Prosecuting the State’s Legal Practitioners. 3 HCC1/26 HCCCR 1763/25 CRBGKR157/25 3 HCC1/26 HCCCR 1763/25 CRBGKR157/25 JOSPAT MAKUMBE versus THE STATE HIGH COURT OF ZIMBABWE CHINHOYI, MUZOFA J, 5 January 2026 Application for bail pending trial T G Kuchenga for the applicant R Nikisi for the respondent MUZOFA J: [1] I dismissed this application for bail pending trial in an ex-tempore judgement. The applicant has requested for written reasons which are provided herein. [2] The applicant appeared before a Magistrate sitting at Gokwe Regional Court facing six counts of rape in contravention of s65 of the Criminal Law Codification and Reform Act (Chapter 9:23)’ the Criminal Law Code’. The complainants were aged between 7 and 9 years. By virtue of their ages, the applicant approached this court for bail pending trial. [3] The applicant and the complainants live in the same village at Matsanyamate, Chief Sai Gokwe. All the complainants are students at Mawisa Primary School. It is common cause that applicant’s homestead is along the way to the said school. [4] The State alleged that sometime in June 2025, around 1200 hours the complainants passed through the applicant’s homestead. They asked for water to drink. Instead of giving them water he asked the complainants to accompany him to his sorghum field which was nearby. At the field he then raped each complainant and threatened them not to tell anyone. [5] The matter came to light after one of the complainants told her aunt in November about the incident. It is only then that the rest of the complainants opened up and spoke about the rape. They were subsequently taken to Gokwe Hospital where they were examined. The applicant was arrested. The application. [6] In his application, through his counsel the applicant started from an erroneous premise that the onus was on the prosecution to show compelling reasons why he must not be admitted to bail. That position is wrong. As stated in Ellatone Bonongwe v The State HH 655/23 bail law is not a one size fits all affair. The procedure applicable in an application for bail in instances where the crime preferred is listed in the Third Schedule to the Criminal Procedure and Evidence Act [Chapter 9:07] ‘the CPEA’ and those relating to all other offences is different. [7] Section 117(1) of the CPEA provides every arrested and detained person a general right to be admitted to bail except where the court finds that it is in the interests of justice that bail be refused. The onus is on the State to show such compelling reasons. However, such onus is not on the State regarding all crimes as suggested by counsel for the applicant. Section 115 C(2)(a)(ii) of the CPEA places the onus on an accused person to show on a balance of probabilities, that it is in the interests of justice that he/she be admitted to bail. It implies that he/she must be in custody unless he shows that it is in the interest of justice that he be released. It provides, (ii) the accused person shall, if the offence in question is one specified in— A. Part I of the Third Schedule, bear the burden of showing, on a balance of probabilities, that it is in the interests of justice for him or her to be released on bail, unless the court determines that, in relation to any specific allegation made by the prosecution, the prosecution shall bear that burden; B. Part II of the Third Schedule, bear the burden of showing, on a balance of probabilities, that exceptional circumstances exist which in the interests of justice permit his or her release on bail; [8] The above provision means there is a reverse onus where the accused is charged with an offence that is listed in the Third schedule of the CPEA. In the Bonongwe case(supra) the Court succinctly expressed what this means as follows, “What that entail is that an applicant to bail is required to adduce evidence to prove the averments he/she makes in his/her application. In matters where the prosecution bears the burden all that an accused needs to do is state for instance that he is not likely to abscond and leave the State to illustrate why they say he will do so. An applicant who simply makes bald assertions as if he has no onus to discharge does himself/herself a big disservice.” [9] In his application, the applicant said he is not likely to abscond. He has a fixed place of abode and has no travelling documents. On interference with witnesses, he offered to leave the village and stay with someone to guard against any likelihood to interfere. On the whole he denied the offence and pleaded his innocence. [10] The State opposed the application. The main basis for opposition is that the applicant is likely to interfere with witnesses since they are neighbours. His release may strike some fear in the complainants who are vulnerable witnesses. The State relied on the case of S v Makuyana HMT 11/18 that where the applicant and the complainant stay together there is a high likelihood for direct or indirect interference. The Law [11] Both the applicant and the State set out the applicable law in such an application. [12] In assessing whether an applicant should be released on bail, a court is guided by the principle underlying the bail system. The bail system seeks to secure the attendance of the accused for trial, to preserve evidence and not to prejudice the proper administration of Justice. These factors are set out in S117(2) and (3) of the CPEA. [13] Where there is no risk of an interference with the said factors bail must be granted. As correctly stated in S v Dhlamini HH 57/09 cited for the applicant that granting bail to an applicant benefits both the State and the applicant. Application of the law to the facts. [14] There is no doubt that the applicant has a fixed place of abode. The likelihood to abscond is not an issue. The State opposed the application on the premise that there is a high likelihood that the applicant may interfere with evidence. [15] Likelihood to interfere with witnesses directs the Court to s117(3) (c) of the CPEA. The Court must consider: (i) Whether the accused is familiar with any witness. (ii) Whether any witness has made a statement. (iii) Whether the investigations are complete. (iv) The accused’s relationship with any witness and the extent to which the witnesses may be influenced by the accused. v) … vi) The ease with which any evidence can be conceded or destroyed. vii) Any other factor which in the opinion of the Court shall take into account [16] The applicant does not dispute that the complainants indeed used to pass through his homestead to get some water to drink. It is also not in dispute that they live in the same village. They are known to each other. There was obviously some relationship and some trust between the applicant and the complainants. [17] The complainants are young, vulnerable children. The applicant is an elderly person likely to be of some influence. His release, even without any communication with the complainants is likely to affect the complainants. Children are highly impressionable. [18] The applicant tendered an alternative address where he will stay with his son. Unfortunately, the applicant will still be in the same jurisdiction under Chief Sai. To my mind there is not much difference. His wife and family would still be in the same community where the complainants reside. [19] According to the State, the medical affidavits confirm interference. Although this is a triable issue at this stage the bail court is at large to consider the strength of the State case. With that information, it is the Court’s considered view that the vulnerable witnesses’ evidence can only be safe guarded by keeping the applicant in custody pending trial. [20] The Court is indeed required to strike a balance between the personal interests of the accused against the interests of Justice. The accused is of advanced age , he said he is HIV positive. It may be in the interest of justice to keep the elderly out of custody. However, that factor must be considered in light of the offence. This is a rape case of six young children who stayed in the same village with the applicant. His advanced age seems to pale into dimness if juxtaposed with the offence and the victims. It is for the said reasons that the following order was made. Application dismissed. James Majatame Attorneys at Law, the applicant’s Legal Practitioners. National Prosecuting the State’s Legal Practitioners.