No S.C. 106\2002
Appeal No. 317\2002
MOYO (2) SAZINI MPOFU (3) KETHANI AUGUSTINE
SIBANDA v THE STATE
COURT OF ZIMBABWE
NOVEMBER 18, 2002
for the appellants
for the respondent
ZIYAMBI JA, in Chambers, in terms of Rule 5 of the Supreme Court
is an appeal against the refusal by a Judge of the High Court to
grant leave to the appellants to appeal against her decision
them bail pending trial. At the end of the hearing in chambers I
dismissed the application. The following are my reasons
appellants, prior to their indictment, were charged with the murder
of Lumukani Luphlahla and Cain Nkala.
indictment the first and third appellants were indicted on both
counts while the second appellant was indicted on one count
murder of Cain Nkala. All appellants were on bail prior to their
indictment. However, in terms of section 110(2) of the
Procedure and Evidence Act [Chapter 9:07] they were committed to
prison upon indictment.
appellants then made an application in the High Court for their
release on bail. The application was dismissed by MAVANGIRA
application for leave to appeal to the Supreme Court against that
decision was also dismissed by the same judge on the grounds
dismissal of the application was based on a proper application of the
principles applicable in such matters as applied to
the facts before
her and she was of the view that that there were no reasonable
prospects of the appellants succeeding on appeal.
appellants alleged in their grounds of appeal that the learned judge
had erred in refusing them bail and further refusing
them leave to
appeal against her decision.
application for leave to appeal must comply with the established
criteria. It must establish facts which show that there are
reasonable prospects of success on appeal. Leave to appeal must
never be granted merely for the asking, or upon the possibility
another court may take a different view. See Dube
judge in the court a
was satisfied that there were no reasonable prospects of the appeal
succeeding. The question arises whether this court can interfere
with that finding on appeal.
for the State submitted, the power of this court to interfere with
the decision of the High Court in bail applications is limited
that in the absence of a misdirection or irregularity, this court
must be satisfied that the manner in which the learned Judge
exercised her discretion was so unreasonable as to vitiate the
decision reached. See S
1986 (2) ZLR 145 (S) at 146 E-F; S
1979 (4) SA 218 (D) at 220 E-G.
judge based her decision to deny the appellants bail on the fact that
this was an application made post indictment; that
the second and
third appellants had made incriminating confessions and indications
which resulted in the recovery of a body, vehicle
and other items
of evidence; that a second accomplice had absconded since the
grant of bail to the appellants prior to their indictment;
having regard to the seriousness of the offences and the
compelling evidence against them, convictions were likely and the
ultimate penalty or lengthy prison terms may result and the
appellants might be induced to abscond and not face their trial.
Before me, Mr
advanced only one argument - namely, that when the matter was
argued before the learned judge, all the parties believed, and were
labouring under the impression that, the second accomplice, one Army
Zulu, had absconded while this has now been shown to be untrue.
alleged no misdirection or irregularity or improper exercise by the
learned Judge of her discretion. The thrust of his submission
that had this fact been before the learned Judge she would have
reached a different decision on the issue of the bail application.
abscondment of Zulu been the only reason given for the refusal of
bail to the applicants, there might have been some substance
However the learned judge was satisfied on the evidence before her
that the evidence against the appellants was compelling
and by reason
of the convictions and subsequent sentences likely to ensue, the
incentive to abscond was great.
evidence relied on by the learned judge in the application for bail
was not placed before me but even if it had been I am bound
limitations expressed above.
It may be
that Mr Matinenga
is correct in his submission that the learned Judge might have come
to a different conclusion if she had been aware that the second
accomplice, Zulu, had not absconded. This might be sufficient
justification for filing another application for bail on the grounds
of changed circumstances but it is not a finding that I can make on
the papers before me.
was for the above reasons that I dismissed the appeal.
Godlonton & Gerrans,
appellants legal practitioners