XREF HCA 26-15
HIGH COURT OF ZIMBABWE
BULAWAYO 17 APRIL AND 28 MAY 2015
K. Lubimbi for the applicant
T Makoni for the respondent
Bail pending appeal
MOYO J: This is an application for bail pending appeal.
The applicant was convicted on her own plea of guilty to one count of stocktheft. The trial magistrate having found no special circumstances, accordingly sentenced the applicant to the mandatory minimum imprisonment term of 9 years.
Dissatisfied with the sentence and the failure to find special circumstances, the applicant appealed to this court. He now seeks bail pending appeal. The appeal against the mandatory minimum sentence is premised on the fact that the magistrate should have found that the theft of a stray beast that applicant had kept for three years prior to rebranding it with her brand marks, presented a temptation to the applicant who succumbed to the temptation and therefore that her moral blameworthiness was very low.
Counsel for the applicant also argued that in fact the mischief sought to be curbed by the legislature was cattle rustling as opposed to people who are tempted into committing stocktheft by circumstances of possession of a stray beast.
Counsel for the applicant submitted that applicant should have been found guilty of contravening section 114 (2) (c) of the Stock Theft Act which provides as follows:
“Any person who,
(c) is found in possession of, or has been in possession of, livestock or its produce in circumstances which give rise, either at the time of the possession or at any time thereafter, to a reasonable suspicion that at the time of such possession, the livestock or its produce was stolen, and who is unable at any time to give a satisfactory explanation of his or her possession. ----. Shall be guilty of stock theft----”
The penalty for an offence under section 114 (2) (c) is either a fine not exceeding level 14 or twice the value of the stolen property whichever is greater or imprisonment for a period not exceeding 5 years or both such fine and imprisonment.
I will firstly deal with the case of S v Chikupo HH 174/14. In his submission Counsel for the applicant stated at paragraph 5 of the bail statement that in the Chikupo (supra) case, the Honourable Judge held that there were prospects of success on appeal where the argument on appeal would be whether the theft of a stray beast amounts to special circumstances or not. I would like to point out that in fact this is what the learned judge stated in that case:
“Be that as it may on the issue of special circumstances this normally involves value judgment by the court seized with the matter. A different court may come out with a different view. The applicant may have some prospects of success against sentence only.”
I wish to point out that the judge did not make a specific finding on whether there were prospects of success or not. He in fact did not go there and simply stated that this finding involves value judgment and a different court may come to a different view and that applicant may have some prospects of success. In my view this case does not assist in any way for the issue of whether the theft of a stray beast may amount to special circumstances was not dealt with by the court neither was the issue of whether in the Chikupo (supra) case applicant did have prospects of cusses on appeal against sentence or not and the reasons for such a finding.
I am therefore not persuaded by the Chikupo (supra) case for the aforestated reasons neither am I compelled to follow that decision as it is not a Supreme Court case.
Part of the applicant’s argument is that there should be special circumstances warranting the imposition of a sentence other than the mandatory minimum sentence because the mischief that the legislature sought to curb was cattle rustling. It is my considered view that in fact as held in the case of S v Zulu HB 174/11 the reason why the legislature came up with the mandatory minimum penalty was the prevalence of the offence in whatever circumstances., not cattle rustling per se.
In such an application the applicant must show positive grounds for granting bail and if there are no such grounds then the application must be refused. See S v Tengwende and Others 1981 ZLR 445 (SC). In that case this is what the learned judge had to say:
“--- But bail pending appeal involves a new and important factor, the applicant has been found guilty and sentenced to imprisonment. Bail is not a right. An applicant for bail asks the court to exercise its discretion in his favour and it is for him to satisfy the court that there are grounds for so doing.”
The proper approach is that bail should be refused where the accused’s guilt is not in issue and a substantial term of imprisonment is the usual sentence for the offence. Refer to R v Kilpin 1978 RLR 282 (A).
In all such applications the onus rests on the applicant to show that should she be admitted to bail, the interests of justice will not be prejudiced. This the applicant will show by proving to the court that there is no risk of her absconding and that there are prospects of success. These two are intertwined in that, the brighter the prospects of success, the less the chances of absconding, and the dimmer the prospects, the higher the risk of absconding. Refer to S v Tengwende and others (supra).
I am of the of the considered view that in this matter the accused’s guilt is not in question neither has the applicant sufficiently shown that the interests of justice will not be prejudiced if she is granted bail for the simple reason that a substantial term of imprisonment is the usual sentence. I cannot therefore exercise my discretion in applicant’s favour in these circumstances.
The application for bail pending appeal is accordingly dismissed.
Lubimbi and Partners, applicant’s legal practitioners
National Prosecuting Authority’s office, respondent’s legal practitioners