Fungai Moses Makotamo v The State

The applicant was charged with rape as defined in section 65(1)(a) of the Criminal Law (Codification and Reform) Act [Chapter 9:23]. Sometime in July 2018 at Chikuku Village, Chief Marange, Mutare, the applicant allegedly had sexual intercourse with an 8-year-old female child, Progress Makotamo. The applicant requested the child to bring fire to his residence, then asked her to sweep his dining and bedroom. While she was inside, he allegedly removed his trousers, removed her underwear, caused her to lie on top of him, and inserted his male organ into her female organ. He told her not to tell anyone and sent someone to give her chips. The complainant, who was crying due to pain, told her father the following day and the matter was reported to police. The applicant and the complainant's father are brothers, and they live in close proximity.

• Whether the applicant should be admitted to bail pending trial
• Whether the right to liberty should be balanced against the interests of the administration of justice
• Whether there is a risk of witness interference given the familial relationship and the complainant's age
• Whether there is a risk of absconding given the strength of the State's case and the seriousness of the offence
• Whether releasing the applicant would undermine the proper functioning of the criminal justice system

The bail application was dismissed.

Where an accused is charged with rape of a young child (8 years old), and there exists: (1) a close familial relationship and geographical proximity between the accused and the complainant's family creating risk of domestic settlement; (2) the complainant's age and vulnerability making her prone to direct and indirect interference; (3) a strong State case based on timeous reporting and medical evidence; and (4) high risk of absconding due to the seriousness of the offence and likely lengthy sentence upon conviction - these factors constitute compelling reasons to deny bail as the interests of the administration of justice outweigh the accused's right to liberty. The right to liberty, while constitutionally protected and grounded in the presumption of innocence, can be withdrawn where compelling reasons exist that releasing the accused would endanger witnesses, jeopardize the proper functioning of the criminal justice system, or create unacceptable risk of absconding.

The court observed that the right to liberty is anchored on the hallmark of the presumption of innocence until proven guilty by a competent court of law, while the interest of administration of justice is anchored on the societal interest to have a matter prosecuted to its logical conclusion. The court noted that in cases involving child complainants, the fact that a child complied with instructions not to report and only reported due to physical pain demonstrates the particular vulnerability of young witnesses to influence and intimidation. The court also commented that the State's fears of having criminal matters domestically resolved in circumstances of familial relationships and close proximity are not far-fetched and constitute legitimate concerns for the administration of justice.

This case illustrates the application of bail principles in Zimbabwe (which shares similar common law heritage with South Africa) in cases involving sexual offences against young children. It demonstrates how courts balance the constitutional right to liberty against the administration of justice, particularly where there are risks of witness interference due to familial relationships and the vulnerability of child complainants. The case emphasizes that compelling reasons must exist to deny bail, and that factors such as the strength of the State's case, the seriousness of the offence, the age and vulnerability of the complainant, familial proximity between accused and complainant, and risk of domestic settlement of criminal matters can constitute such compelling reasons.