X REF HCA 38-15; CRB 2943 B-14
IN THE HIGH COURT OF ZIMBABWE
BULAWAYO 8 APRIL 2015
Application for bail pending Appeal
G. Nyoni for applicant
T. Hove for respondent
KAMOCHA J: The applicant and one Absolom Hlupho were jointly charged with fraud. The allegation was that they had caused the delivery of a fake warrant of liberation to Superintendent Joe Matyavira with the intention of deceiving him into releasing from prison one Lungisani Sibanda, a convicted prisoner who was serving an effective sentence of 7 years imprisonment for theft of a motor vehicle.
They were arraigned before a provincial magistrate and pleaded not guilty but were found guilty at the end of a protracted trial despite their protestations.
Absalom Hlupho was sentenced to 36 months imprisonment of which 18 months imprisonment was suspended for a period of 5 years on the customary conditions of future good behaviour. While Tungamirai Nyengera was sentenced to 48 months imprisonment of which 12 months imprisonment was suspended on condition of future good behaviour.
The applicant Tungamirai Nyengera noted an appeal against both conviction and sentence. He now seeks to be released on bail pending the hearing of his appeal. He submitted that his release would not jeopardize the interest of justice for the reasons that the conditions for his release will be stringent enough to safeguard the said interests.
It was his further contention that his appeal was not only reasonably arguable but that there was room that the appeal court may arrive at a different decision. He then concluded that the appeal has good prospects of success.
The draft he filed of record reads as follows:-
“It is ordered that:-
Applicant be and is hereby admitted to bail pending the finalization of his appeal on the following conditions:
(a)That he deposits the sum of US$500,00 with the registrar of the High Court of Zimbabwe, Bulawayo.
(b)That he resides at No. 5952 Luveve 5, Bulawayo until his appeal is finalised.
(c)That he surrenders his travel documents to the registrar of the High Court of Zimbabwe, Bulawayo.
(d)That he reports at Bulawayo Central Police Station twice a week on Mondays and Wednesdays between the hours of 6am and 6pm until his appeal is finalised.
(e)That the applicant shall deposit with the registrar of the High Court of Zimbabwe, Bulawayo the lease agreement/agreement of sale with the City of Bulawayo for house number 5952 Luveve 5, Bulawayo as surety for his release.”
The above bail conditions are just ordinary bail conditions for bail pending appeal which are commonly breached by those who abscond.
US$500,00 is not a large sum of money for a legal practitioner who has been in practice for three years.
The fact that he surrenders all his travel documents does not mean that he cannot leave this country. It is in fact now common knowledge that there are too many Zimbabweans going out of this country without any form of travel documents. They are the ones who give brisk business to “Omalayitsha” a word commonly used to describe those who are in the business of transporting goods and human beings (usually unlawfully to South Africa)
Reporting to the police twice a week on Mondays and Wednesdays between 6am to 6pm will not stop the person from leaving the country. He has plenty time between 6pm on Wednesday and 6am on Monday.
The applicant clearly has no title to house number 5952 Luveve 5. It is also very doubtful that his father Stanilous Hlamai Nyengera has title to that house.
The above conditions are far from being stringent. At the most the applicant would only lose US$500,00 if he skipped bail.
It must always be remembered that the presumption of innocence no longer operates in the applicants favour. He has been convicted and is serving a 36 months term of imprisonment which would act as impetus for him to skip his bail.
Applicant contended his appeal against conviction and sentence had prospect of success. I do not agree. The opposite is the case, in my view.
I shall not delve at length into the evidence that was led at the trial as that is the domain of the appeal court. Suffice to say the trial court made specific findings on the following. It found as a fact that the warrant of liberation was fake and gave reasons for such finding.
The prisoner never noted an appeal against conviction and sentence. Nyengera did not apply for bail on behalf of the prisoner pending appeal. Hence the warrant of liberation told a lie about itself when it reflected that the prisoner paid bail pending appeal on receipt number 326980. Another finding by the trial court was that the warrant of liberation originated from Nyengera’s office in khaki envelope. It was carried by Absolom Hlupho who delivered it at Khami Maximum Prison. Two prison officers proved that the khaki envelope which Hlupho conveyed to the officer in charge contained the fake warrant of liberation.
Further the trial court found as a fact that Lilian Tapera was worth to be believed. The court believed her when she told it that numerous phone calls were made between her, Absolom and Nyengera on 24 December 2014. The calls were in connection with the release from prison of Lungisani Sibanda.
Furthermore the trial court found that Nyengera visited Lilian Tapera on 25 December 2014. The purpose of the visit was to persuade her to alter the statement she had given to the police. She was corroborated by her mother Joyce Sibanda who in fact advised her against changing her statement.
At the hearing Mr Nyoni appearing for the applicant highlighted that the evidence of the call histories was inadmissible as it was obtained unlawfully.
He was clearly indulging in blowing both hot and cold. He represented the applicant at trial and consented that the call histories be admitted in evidence as exhibit 4. But when making his closing submission at the end of the trial he had changed his mind and contended that the call histories were inadmissible.
Even if that piece of evidence were to be expunged from the record the evidence of Lilian Tapera which was accepted by the court would suffice. Her evidence is that numerous calls relating to the release of Lungisani Sibanda took place between Nyengera, Absolom and herself took place.
I indicated to the parties that my reasons would follow when I dismissed the application.
These are they.
Messrs Moyo & Nyoni, applicant’s legal practitioners
Prosecutor General’s Office, respondent’s legal practitioners