Amen Ndebele v The State

### Preamble
1
HB 252/22
HCB 353/22
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AMEN NDEBELE

Versus

THE STATE

IN THE HIGH COURT OF ZIMBABWE

MAKONESE J

BULAWAYO 4 & 13 OCTOBER 2022

Bail Pending Appeal

T. Runganga for the applicant

Ms C. Mabhena for the respondent

MAKONESE J:	This is an application for bail pending appeal.  The application is opposed.  Applicant appeared before a Regional Magistrate at Bulawayo on the 12th of August 2022 facing a charge of contravening section 128 (b) of the Parks and Wildlife Act (Chapter 20:14), as amended by section 11 of the General Laws Amendment, 5/2011, that is possession of a specially protected animal or trophy.  Applicant was convicted and sentenced to the mandatory 9 years imprisonment for being in possession of a pangolin carcass.  Applicant has noted an appeal against both conviction and sentence in this court.  This application has been motivated by applicant’s desire to be released on bail pending his appeal.

Background facts

On the 28th of June 2022 members of the Zimbabwe Republic Police attached to the Criminal Investigations Department, Bulawayo received information from an informer to the effect that there was a male adult person of medium built at corner Fife Street and 3rd Avenue, Bulawayo who was selling a pangolin.  Acting on the information, a team of police detectives drove to the scene in a black X-Trail motor vehicle.  Upon arrival at the scene, the detectives observed a man fitting the description given standing thereat with a blue satchel on his back.  The detectives approached the man, who is the applicant in this matter, and told him that they were police detective and that they wanted to search the bag he was carrying.  The applicant tried to run away but was apprehended.  During the scuffle the blue satchel/bag got torn.  The applicant was arrested and handcuffed.  The bag was searched and a pangolin skin was found inside the satchel.  Upon his arrest the applicant claimed that the bag belonged to a friend Penius who had left the bag on the ground whilst going to purchase airtime.  The applicant contended that there was no link between him and the bag and that he was not in possession of the bag.  The police detectives waited at the scene for approximately 20 minutes but the said Penius never arrived.  The learned magistrate in the court a quo assessed the evidence presented by the prosecution and the defence.  The court did not believe the applicant’s version that the blue satchel was recovered some 2 metres from where he was standing.  The court a quo found the applicant’s version to be a fallacy not to be believed.  The court a quo was satisfied that the State proved its case beyond reasonable doubt.

Applicant’s grounds of appeal

The applicant raised 5 grounds of appeal in the notice of appeal as follows:

Ad conviction

The learned magistrate erred in fact and in law in finding the appellant guilty of the offence without proper identification.

The learned trial magistrate erred in fact and in law by finding the appellant guilty of the offence on the basis of circumstantial evidence when there were so many inferences to be drawn.

The learned trial magistrate erred by finding the appellant guilty when there were many contradictions on the state evidence which affected the credibility of the witnesses.

The learned trial magistrate erred by finding the appellant guilty when there was no link of the bag containing pangolin skin and the accused person.

The learned trial magistrate erred by finding the appellant guilty when the description given by the informer about the accused person was so vague, no peculiar features were given, and this could not exclude a case of mistaken identity.

Submissions by the appellant

The applicant submits that he is cognizant of the position in our law that the presumption of innocence no longer operates in his favour.  He argues that he is a suitable candidate for bail pending his appeal.  Applicant avers that there is nothing that induces him to flee as he has bright prospects of success on appeal.  The applicant argues that the learned magistrate responded to the notice of appeal by pointing out that there are contradictions on the state case.  I have taken a close look at the learned trial magistrate’s response to the notice of appeal but quote verbatim that portion of the learned magistrate’s response where she states that:

“The minute contradictions in the state case did not go to the root of the matter.  The state proved its case beyond reasonable doubt.”

The applicant urges this court to grant the application for bail pending appeal as there is no risk of abscondment.

Submissions by the respondent

The state submits that there are no prospects of success on appeal as the learned magistrate carefully examined the evidence and convicted the applicant.  The state further contends that the state proved its case beyond reasonable doubt.  The assertion by the applicant that the bag belonged to one Penius could not be reasonably possibly true.  The state argues that the conviction is safe. Applicant’s risk of abscondment is high given the lengthy prison sentence he now faces.  The state argues that there was no misdirection on the part of the magistrate in her approach to the assessment of the evidence.  The state submits that the state succeeded in proving its case beyond reasonable doubt.

Analysis of the law

The principles governing bail pending appeal are now well settled in our law.  Section 123 (1) (b) (ii) of the Criminal Procedure and Evidence Act (Chapter 9:07) empowers the court to admit a convicted person to bail pending the determination of his appeal by this Court.  In order to succeed in this application the applicant has to demonstrate that there are reasonable and realistic prospect of success in his appeal against conviction and sentence.

The test for prospects of success was articulated in the case of S v Labuschagne SC-131-04 where it was stated that where there is room for difference of opinion with regards to the facts, circumstances and the law relating to the case which is the subject of appeal, prospects of success will be reasonably high.

The factors to be considered in an application of this nature were also laid down in the case of S v Williams 1980 ZLR 466 (A).  The factors to be considered are:

(a)	 the prospects of success on appeal

(b)	the likelihood of abscondment

(c)	the likely delay before the appeal is heard

(d)	any other relevant factors

In this matter, I am satisfied that the evidence presented in the court a quo was sufficient to secure a conviction.  I must observe here, that Mr T. Runganga, appearing for the applicant, attempted, in my view, to give the impression that there were contradictions in the state case conceded by the trial magistrate.  The reality though is that in her response to the notice of appeal the learned trial magistrate indicated that the minor contradictions in the state case did not go to the root of the matter.  A perusal of the record shows that the trial magistrate carefully weighed all the evidence in its totality.  As far as the prospects of success are concerned the applicant’s appeal does not seem to carry any reasonable prospects of success.

Ms Mabhena, appearing for the state indicated that the evidence laid in the court a quo was clear and credible.  The facts of the matte are fairly straightforward.  The state witnesses gave evidence to the effect that the applicant was found in possession of a blue satchel. Inside the bag was a pangolin skin. Applicant was in possession of the bag. The intention to possess the pangolin skin was proved.

In Daniel Mpa v State HH-469-14, the court held that a person has possession of something if the person knows of its presence and has physical control of it, or has the power and intention to control it.

In the result, I am not persuaded that the applicant’s appeal carries reasonable prospects of success.

Accordingly, the application for bail pending appeal is hereby dismissed.

Tanaka Law Chambers, applicant’s legal practitioners

National Prosecuting Authority, respondent’s legal practitioners