Ashton Mlilo v The State

The 26-year-old applicant from Montrose 3 Village in Esigodini faced a rape charge under section 65 of the Criminal Law (Codification and Reform) Act. It was alleged that on 3 February 2018 in a bushy area in Mtshingwe Filabusi, he met a 13-year-old complainant who was with her brother. He allegedly threatened them with a knife before dragging the complainant to the bush where he raped her once. The applicant was arrested five days later on 8 February 2018 after he had confronted the complainant's parents at their home denying the charge and attempting to confront the complainant at her school. He claimed he voluntarily handed himself over to the police at Filabusi after learning of the allegations at a church prayer meeting. He approached this court seeking bail pending trial.

• Whether the applicant should be granted bail pending trial despite facing a Third Schedule offence (rape)
• Whether the applicant posed a flight risk
• Whether the applicant was likely to interfere with witnesses if released on bail
• The proper interpretation and application of section 50(1)(d) of the Constitution regarding bail
• The application of section 115C and section 117(2) of the Criminal Procedure and Evidence Act regarding bail for Third Schedule offences

The applicant was admitted to bail pending trial on the following conditions: (a) deposit of $100 with the Assistant Registrar of the High Court; (b) residence at number 47036/13 Mpopoma Bulawayo until finalization of trial; (c) no interference with witnesses; and (d) reporting once a week on Mondays at Western Commonage Police Station between 0600 hours and 1800 hours.

The binding legal principles established are: (1) Section 50(1)(d) of the Constitution establishes bail pending trial as a constitutional requirement, requiring release unless there are compelling reasons for continued detention; (2) For Third Schedule offences including rape, while the burden under section 115C of the Criminal Procedure and Evidence Act falls on the applicant to prove entitlement to bail, the state must provide evidence supporting claims of flight risk or witness interference under section 117(2), not merely raise these grounds in the abstract; (3) The seriousness of a charge alone cannot constitute sufficient ground for denial of bail; (4) The presumption of innocence operates in favor of an accused person at the bail stage; (5) An accused person's conduct before and after becoming aware of allegations is relevant evidence in assessing flight risk and propensity to interfere with witnesses; (6) Voluntary surrender to police and attempts to clarify allegations rather than absconding are inconsistent with being a flight risk.

The court observed that courts have granted bail to accused persons facing even more serious charges than rape. The court also noted that the applicant's offer to relocate to Bulawayo to avoid encounters with witnesses in Filabusi was a condition that atoned for fears of witness interference, though this was not strictly necessary given the court's finding that the applicant's prior conduct did not demonstrate propensity to interfere with witnesses. The court's characterization of the applicant's behavior as suggesting he was 'shocked' by the rumour and 'concerned about his innocence' was partly observational rather than strictly necessary to the legal determination.

This case is significant in Zimbabwean criminal procedure as it affirms the constitutional right to bail under section 50(1)(d) of the Constitution and clarifies the application of bail provisions for Third Schedule offences. It establishes that even for serious offences like rape, the state cannot successfully oppose bail merely by citing the seriousness of the charge or making bare allegations of flight risk or witness interference without supporting evidence. The judgment reinforces that the presumption of innocence operates at the bail stage and that the constitutional right to bail must be given primacy unless there are compelling, evidence-based reasons for continued detention. It provides guidance on assessing flight risk and propensity to interfere with witnesses based on the accused's actual conduct rather than speculation.