Mbambeleli Mpofu v The State

The applicant, a 46-year-old cross-border transport operator based in Bulawayo, was charged with rape in contravention of section 65(1)(a) of the Criminal Law (Codification and Reform) Act. In June 2021, the applicant was tasked to transport the complainant, a 15-year-old Form 3 student, from Bulawayo to her relatives in South Africa. Upon arrival in South Africa, the applicant took the complainant to his residence and allegedly had sexual intercourse with her without her consent and without protection. The complainant subsequently developed a sexually transmitted infection and later reported the matter to her aunt Norah Mathayisa. The applicant denied the allegations, claiming they were baseless and meant to fix him, suggesting the complainant engaged in sexual activities while in South Africa and made false allegations to cover up her condition. The police arrested the applicant after luring him to Luveve Police Station under the guise of offering him a business contract.

• Whether the applicant, if released on bail, would abscond and fail to stand trial
• Whether the applicant had proffered a defence that was reasonably possibly true
• Whether it was in the interests of justice to grant bail given the serious nature of the charges
• Application of section 117 of the Criminal Procedure and Evidence Act (Chapter 9:07) regarding bail considerations

The application for bail pending trial was dismissed.

In bail applications, an applicant must proffer a defence that is reasonably possibly true and make full disclosure of the nature of their defence, not merely provide a bare denial of allegations. A bare denial without explanation or confirmation/denial of specific factual allegations is insufficient to discharge the applicant's burden in a bail application. An applicant who is a cross-border operator with foreign connections and who faces serious charges carrying lengthy prison terms presents a flight risk that may justify refusal of bail, particularly where no plausible defence has been proffered.

The court reiterated the golden thread principle from Makone v The State that bail should be allowed in the interests of individual liberty unless it is not in the interests of justice, and that each individual case must be dealt with on its own merits. The court observed that applicants in bail applications are presumed innocent until proven guilty and do not have to prove their innocence, though this does not relieve them of the obligation to provide a substantive defence that is reasonably possibly true.

This case reinforces the principle in Zimbabwean criminal procedure that in bail applications, particularly for serious charges such as rape, an applicant must provide more than a bare denial of allegations and must make full disclosure of the nature of their defence. The judgment emphasizes that the court must assess flight risk considerations, including foreign connections and the seriousness of potential sentences, when determining whether it is in the interests of justice to grant bail. The case demonstrates the application of section 117 of the Criminal Procedure and Evidence Act and the balancing of individual liberty against the interests of justice in bail determinations.