Jospat Makumbe v The State

The applicant faced six counts of rape in contravention of s65 of the Criminal Law Codification and Reform Act. The complainants were aged between 7 and 9 years. The applicant and complainants lived in the same village at Matsanyamate, Chief Sai Gokwe. All complainants were students at Mawisa Primary School, and the applicant's homestead was along the route to school. In June 2025, the complainants passed through the applicant's homestead asking for water. The applicant allegedly asked them to accompany him to his nearby sorghum field where he raped each complainant and threatened them not to tell anyone. The matter came to light in November 2025 when one complainant told her aunt. Subsequently, all complainants disclosed the incidents. They were taken to Gokwe Hospital for examination, and the applicant was arrested. The applicant applied for bail pending trial before the High Court due to the ages of the complainants.

• Whether the applicant had discharged the onus on a balance of probabilities that it is in the interests of justice for him to be released on bail in respect of offences listed in the Third Schedule to the Criminal Procedure and Evidence Act
• Whether there was a likelihood that the applicant would interfere with witnesses if released on bail
• Whether the applicant's personal circumstances (advanced age and HIV positive status) outweighed the interests of justice in keeping him in custody

Application for bail pending trial dismissed.

In bail applications involving offences listed in the Third Schedule to the Criminal Procedure and Evidence Act (including rape), the reverse onus applies under s115C(2)(a)(ii) - the accused must prove on a balance of probabilities that it is in the interests of justice to be released on bail. An applicant who bears the onus must adduce evidence to prove the averments made, and bald assertions without substantiation are insufficient. When assessing likelihood of witness interference under s117(3)(c), the court must consider the familiarity between the accused and witnesses, the relationship between them, the vulnerability of witnesses, and the extent to which witnesses may be influenced by the accused. Where child complainants are involved and reside in the same community as the accused, the need to safeguard vulnerable witnesses' evidence may justify refusing bail even where an alternative address is offered if it remains within the same jurisdiction and community. The personal circumstances of an accused (such as advanced age and medical conditions) must be weighed against the gravity of the offence and the need to protect vulnerable victims in the interests of justice.

The Court observed that granting bail benefits both the State and the applicant (citing S v Dhlamini HH 57/09). The Court noted that while at the bail stage triable issues are not determined, the bail court is at large to consider the strength of the State case. The Court commented that 'bail law is not a one size fits all affair' and that the procedure applicable differs depending on whether the offence is listed in the Third Schedule or not. The Court expressed the view that the applicant's advanced age 'seems to pale into dimness if juxtaposed with the offence and the victims' - a commentary on the relative weight to be given to personal circumstances versus the gravity of sexual offences against multiple young children.

This case is significant in Zimbabwean criminal procedure law as it clarifies the application of the reverse onus in bail applications for Third Schedule offences. It emphasizes that bail law is not 'one size fits all' and that different procedural standards apply depending on the nature of the offence charged. The judgment reinforces the principle that where sexual offences involving vulnerable child witnesses are concerned, the protection of witnesses and the integrity of evidence may outweigh the personal circumstances of the accused, including advanced age and health conditions. The case demonstrates the proper approach to assessing likelihood of witness interference under s117(3)(c) of the Criminal Procedure and Evidence Act, particularly in cases involving child complainants living in proximity to the accused.