Khemetso Sifiso Phuti v The State

### Preamble
1
HB 127/22
HCB 124/22
---------


KHEMETSO SIFISO PHUTI

Versus

THE STATE

IN THE HIGH COURT OF ZIMBABWE

DUBE-BANDA J

BULAWAYO 4 MAY 2022 & 19 MAY 2022

Application for bail pending appeal

K. Ngwenya for the applicant

K. Ndlovu for the respondent

DUBE-BANDA J 	This is an application for bail pending appeal. After a contested trial applicant and others who are not part of this application were convicted and sentenced by the Regional Magistrate sitting at Bulawayo on the 11th February 2022.  They were convicted and sentenced on one count of contravening section 82(1) of S.I. 362/90 as read with section 128(b) of the Parks and Wildlife Act [Chapter 20:14], as amended in section 11 of the General Law Amendment 5/2011(possession of raw unmarked / unregistered ivory). They were sentenced each to the minimum mandatory imprisonment of nine years. Aggrieved by both conviction and sentence, applicant noted an appeal to this court. The appeal is pending under HCA 11/22. In this application, applicant seek release on bail pending the finalisation of his appeal.

Submissions of the parties

Applicant contends that he has reasonable prospects of success on appeal. It is submitted that the trial court erred and misdirected itself by convicting applicant when the State had not proved beyond a reasonable doubt the essential elements of the charge. It is contended further that the evidence before the trial court proved that the motor vehicle had not been inspected or searched prior to the applicant taking and using it. It is submitted further that the trial court misdirected itself in concluding that applicant had knowledge of the ivory tusks when it was not proved that the tusks were in the motor vehicle and recovered from such vehicle. It is argued that the State did not rebut or controvert applicant’s defence, and his version was not shown to be false and untrue. It is contended further that the trial court misdirected itself in sentencing applicant to mandatory minimum nine years, when the circumstances of the case and the totality of the evidence established special circumstances.

Applicant contends that he is not a flight risk. He was born in Zimbabwe. He is a young man of fixed abode. Prior to his sentence he was employed as a sales person. He does not possess any travel documents neither has he travelled outside the jurisdiction of this court. He does not own any assets or property outside this jurisdiction. Cut to the bone, it is submitted that he has no means to uproot himself from Zimbabwe and relocate himself to another country.

The application is not opposed. Mr Ndlovu, counsel for the respondent conceded that State did not prove that the applicant was in physical detention, had knowledge and intending to exercise control over the ivory subject to the charge. It is contended further that applicant’s conviction is on shaky grounds, and that there is a realistic possibility that his conviction will be overturned on appeal. According to Mr Ndlovu, it is common cause that the ivory subject of the charge was recovered after it was found in the vehicle, in which applicant was one of the occupants, and three others. It is argued that from the foregoing it cannot be gainsaid that applicant was not in sole possession of the ivory, and he can only be convicted if it is proved beyond a reasonable doubt that he was in joint possession of the ivory with his co-accused.

Counsel argues that for a conviction to ensure in a gang offence on the basis of the doctrine of common purpose, the State must prove conspiracy or prior agreement or demonstrate that the co-perpetrator actively associated with the unlawful conduct with the requisite intention. It is further argued that the basis of the conviction is seemingly that applicant and his co-accused were present in the car in which the ivory was recovered. It is contended further that the law is to the effect that the State must prove a nexus between each of the participants in the group and the offence charged.  It is argued that the evidence shows that applicant was in the car with his co-accused, and there is no evidence to show that applicant directly held or actively associated with the procurement and handling of the ivory. It is said that being present at the scene is not sufficient basis to say he actively associated himself in the commission of the offence.

Regarding sentence counsel argued that if this court was not persuaded by his concession in respect of conviction, then he accepts that the trial court properly found that there were no special circumstances and the minimum sentence of nine years was appropriate in the circumstances.

The legal principles

In S v Gomana SC 166 / 2020 it was held that the purpose of exercising discretionary power vested in the court in terms of s 123 of the Criminal Procedure and Evidence Act [Chapter 9:07] is to secure the interest of the public in the administration of justice by ensuring that a person already convicted of a criminal offence will appear on the appointed day for his/her appeal or review. It is for that reason that the Act provides, that upon sufficient evidence being led to justify it, a finding that a convicted person is likely not to appear for his/her appeal or review when released on bail is a relevant and sufficient ground for ordering his/her continued detention pending appeal or review.

Bail pending appeal is not a right. An applicant for bail pending appeal has to satisfy the court that there are grounds for it to exercise its discretion in his favour. In the case of bail pending appeal the proper approach is that in the absence of positive grounds for granting bail, the application will be refused. The applicant having been found guilty and sentenced to imprisonment is in a different category to an applicant seeking bail pending trial. See: Mutizwa v The State SC 13/20, S v Tengende & Ors 1981 ZLR 445 (S) 447H – 448C.

The main factors to consider in an application for bail by a person convicted of an offence are twofold: Firstly, the prospects of success on appeal in respect of both conviction and sentence. Secondly, the likelihood of abscondment. Other factors to bear in mind are the right of the individual to liberty and the delay before the appeal can be heard. See: S v Gomana SC 166 / 2020.

It has been held that considerations of reasonable prospects of success on the one hand, and the danger of the applicant absconding on the other, are inter-connected and have to be balanced. Furthermore, that the less likely the prospects of success on appeal, the more inducement there is on an applicant to abscond. It is also emphasised that in every case where bail after conviction is sought the onus is on the applicant to show why justice requires that he should be granted bail. See: Mutizwa v The State SC 13/20, S v Williams 1980 ZLR 466(S), Chivhayo v The State SC 94/05.

It is on the basis of these legal principles that this application must be viewed and considered.

Does the applicant have prospects of success on appeal?

The trial court made the following factual findings: that one of the applicant’s co-accused was given a vehicle to use. That on the 14th March 2021, Zimbabwe Parks officers and the police reacted to information and proceed to Zonkizizwe Shopping Centre, Bradfield, Bulawayo. The officers saw the vehicle they were looking for, on approach the occupants of the vehicle reversed the vehicle and hit a gate at the shopping centre. The occupants of the vehicle were then arrested, and became the accused in the trial referred to supra.  The applicant was one of the persons who were arrested in that vehicle. At the time of arrest applicant and his co-accused had had the vehicle for almost three hours.

The vehicle was searched and the court found that it was indeed raw unmarked ivory that was recovered in the vehicle. It was in a sack. Before the trial court there was a factual dispute whether the ivory was found in the vehicle or it was planted by the officers. The court found that the ivory was in the vehicle, rejecting the suggestion that it was planted by the officers.

During the inspection in loco it was apparent that the sack with the ivory covered the entire foot rest at the back passenger seat. The trial court noted that one’s legs were forced to straddle over the sack and physical contact with it was unavoidable. Applicant was seated on the left side of the back seat. The sack was in the open, nothing covering it. The court found that the presence of the sack, its size and colour would not have escaped the attention of anyone in the vehicle. The court then found that applicant and his co-accused had possession of the ivory.

The trial court further found that the applicant was in actual possession of the unmarked ivory when he was arrested. He was in the vehicle which had this unmarked ivory. He was seated at the back seat and there is no way he could not have seen the sack. The trial court carried out an inspection in loco, and satisfied itself that indeed the occupants of the vehicle were in possession of the ivory. The court relied on the definition of possession provided in The State v MPA 2014 (1) ZLR @ 572 and found that applicant was in possession of the ivory. In The State v MPA the court said :

Where a person is charged with a crime involving the element of animal “possession” it is critical to recognise that the legal definition of “possession” is much broader that the common definition. At law, a person has possession of something if the person knows its presence and has physical control of it or has the power and intention to control it. A person may have sole possession or joint possession. A person who has direct physical control of something on or found around his person is the in actual possession of it. It means he has actual possession of it.

In the circumstances of this case, the reading of the entire record and the judgment of the trial court, I take the view that for the purposes of this application the respondent’s concession was not properly taken.

On the basis of the evidence on record, the factual findings made by the trial court, and the application of the legal principles, the verdict of the trial court is unlikely to be vacated on appeal. The trial court took into account all factors surrounding the offence before convicting the applicant. There are, therefore, no reasonable prospects of success on appeal against conviction.

Regarding sentence, Mr Ngwenya counsel for the applicant submitted that the trial court misdirected itself in finding that there were no special circumstances warranting the imposition of a sentence other than the minimum mandatory sentence. Again on the facts of this case, it is unlikely that the trial court’s findings on special circumstances would be vacated on appeal. I take the view that applicant has no prospects of success on appeal against sentence.

Whether or not the applicant is likely to abscond in view of the gravity of the offences and the sentence imposed?

In my view, the applicant has a high probability of absconding considering the gravity of his offence and that he has no reasonable prospects of success on appeal. The principle that the lesser the prospects of success the higher the risk of abscondment is applicable in this case. In S v Kilpin 1978 RLR 282 (A), it was pointed out that a court may well consider that the brighter the prospects of success, the lesser the likelihood of the applicant to abscond and vice versa. The applicant was sentenced on 1st February 2022. The long term of imprisonment he is serving might induce him to abscond. He has experienced the rigours of imprisonment for over three months. He still has a long way to go as he was sentenced to an effective 9 years in prison. The remaining sentence is likely to cause him to abscond if he is released on bail pending appeal. He is a flight risk.

Disposition

In the absence of reasonable prospects of success on appeal, and the high probability of absconding, factors relating to the right to liberty and the delay before the appeal can be heard recede to the background.

In the circumstances of this case, I am satisfied that it is not in the in interests of the administration of justice that applicant be released on bail pending appeal.

In the result, it is order as follows:

The application for bail pending appeal be and is hereby dismissed.

T.J. Mabhikwa & Partners, applicant’s legal practitioners

National Prosecuting Authority, respondent’s legal practitioners