Judgment No. HB 49/15
Case No. HCB 03/15
HIGH COURT OF ZIMBABWE
BULAWAYO 18 FEBRUARY AND 12 MARCH 2015
P. Muzvuzvu for the applicant
T. Hove for the respondent
MOYO J: This is an application for bail pending appeal.
The appellant was convicted of stocktheft as defined in Section 114 (2) (a) of the Criminal Law (Codification and Reform) Act [Chapter 9:23]. He was sentenced to 9 years imprisonment.
Dissatisfied with both conviction and sentence he has noted an appeal to this court. He now seeks bail pending appeal.
In such matters the applicant must satisfy the court that he has prospects of success on appeal and that the granting of bail will not jeopardise the interests of the administration of justice.
In Kilpin vs R 1978 RLR 282 (A) it was held that at this stage the presumption of innocence no longer operates in applicant’s favour and that bail pending appeal should not be granted where the person has been convicted of an offence which almost invariably attracts a lengthy prison term and there are no reasonable of success on appeal.
In Williams v R 1980 ZLR 466 (A) the appeal court held that even after conviction the court should lean in favour of liberty if this would not endanger the interests of justice.
The prospects of success of the appeal must be balanced against the interests of the administration of justice.
Where the evidence of guilt is overwhelming there is no reasonable prospect of success on appeal. In Labuschagne vs S SC 21/03, it was held that it is improper to allow people convicted of serious crimes to be walking in the streets instead of serving their sentences when the prospects of success are non-existent, society would lose faith in the justice system.
In arriving at a decision on whether to grant bail pending appeal or not, the court will take into account the seriousness of the offence, the seriousness of the penalty imposed, whether the appeal is against conviction or only against sentence and the prospects of success on appeal. With a serious offence which normally attracts a substantial prison term, there will be a pronounced risk that the convicted person will flee from justice if released, especially if he has no reasonable prospects of success on appeal. Even where there is a reasonable prospect of success on appeal, the convicted person may not be inclined to take the chance of the appeal succeeding, but may choose to take flight instead once he is released on bail pending appeal.
In Manyange vs S HH 1/03 it was held that appellant must show in addition to the prospects of success on appeal that the interests of justice will not be endangered if he is admitted to bail.
The facts of this matter are that applicant was found in possession of beasts belonging to Wanezi Mission. The beasts had a brand mark that had been tampered with. Initially he told the state witnesses that the beasts were stray beasts that he was keeping. He later told them that the beasts had been left to rent pasture at his farm by one Promise Mathuthu. Applicant had sold a heifer which was part of the group to somebody else. He claimed that he sold the beast to defray rental arrears that had accrued without Promise Mathuthu paying. Another beast that was found in applicant’s kraal now had applicant’s earmarks on it. He professed ignorance of how the earmarks could have found their way onto that beasts’ ears. In his defence outline he told the court that according to his knowledge the beasts belonged to Promise Mathuthu who had been given the cattle as “payment” by a Wanezi Farm manager. Under cross-examination he then said that the cattle belonged to a third party who had asked Promise Mathuthu to find pasture for them. Promise Mathuthu was called for the defence and he proved to be an untruthful witness and therefore he did not assist the applicant’s case except to make it worse. The cattle in question were moved without livestock movement permits, this is also as per applicant’s own admission.
There is absolutely no grain of any prospect of success in the appeal by the applicant. He has absolutely no leg to stand on an appeal. He has also worked in the Republic of South Africa, all his life since 1975. He is not a suitable candidate for bail pending appeal. The evidence against him is overwhelming he was convicted of serious charges where a mandatory minimum sentence of nine years imprisonment is passed. I have not found any reason why applicant should be admitted to bail pending appeal. The risk of abscondment is pronounced in this case and the application for bail pending appeal can not succeed.
I accordingly dismiss the application for bail pending appeal.
Muzvuzvu & Mguni Law Chambers, appellant’s legal practitioners
National Prosecuting Authority, respondent’s legal practitioners