Mphoko was convicted and sentenced to 20 years in jail for raping his niece and escaping from lawful custody by Bulawayo Regional Magistrate Elijah Singano in May.
Mphoko made the application through his legal representative, Thabekhulu Dube, of Ncube and Partners.
The matter was heard by Justice Kabasa, Tuesday and the State, led by prosecutor Thobekani Mathanzima Nyathi did not oppose the bail application, citing that Mphoko has prospects of success on appeal against his conviction in respect of the three counts of rape.
In his application, Mphoko highlighted that evidence presented before the courts noted that the identification of the person who violated the complainant was discovered after threats by the complainant’s mother that she will send the complainant to the police if she did not tell her the name of the person who raped her.
“We concede that the Applicant has a fighting chance against conviction in respect of the three counts of rape. The identification of the person who sexually violated the complainant was discovered after threats by the complainant’s mother that she will send the complainant the name of the person who raped her,” Nyathi cited in his response to the application.
“The requirements for admissibility of a complaint are that it must have been made voluntarily and not as a result of questions of a leading and inducing or intimidating nature. It must have been made without undue delay and at the earliest opportunity, in all the circumstances, to the first person to whom the complainant could reasonably be expected to make it.”
Nyathi said since the complaint was made as a result of threats against the complainant, the complaint that she made to her mother that she was raped by Mphoko is inadmissible.
“The Applicant, therefore, enjoys a fighting chance on Appeal against conviction in respect of the rape counts. The complainant’s mother and Doctor Mbudzi is not admissible because the complaint to the mother was made through threats and the complaint made to Dr Mbudzi was made after a complaint was made to the mother, the complainant’s evidence could have been used by the trial court in convicting the Applicant but the judgment of the trial court is silent on whether or not it exercised caution on the single evidence of the complainant and how it prevented false incrimination.”
Dube, the lawyer, said the issue of admissibility was mentioned in the judgment passed by Magistrate Singano.
“It is clear that there are challenges in the admissibility of the complaint due to the evidence led from the complainant and that of the mother. The complainant told the court that as she left the doctor’s room her mother threatened to take her to the police and be beaten up until she told the doctor what had happened,” the judgment read.
“If we are to compare this with her mother’s version of evidence on this point it is viewed almost the same. The mother told the court that, “It was at the doorsteps at the doctor that I told her that I would take her where we got the forms from, meaning the police request forms and leave her there so that she would tell the police what happened or who sexually abused her. If this statement is taken as it is, then one can argue that indeed the mother was threatening the daughter here hence the complaint is inadmissible.”