Shupani Ndlovu v The State

### Preamble
1
HB 271/22
HCB 366/22
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SHUPANI NDLOVU

Versus

THE STATE

IN THE HIGH COURT OF ZIMBABWE

DUBE-BANDA J

BULAWAYO 14 OCTOBER 2022 & 3 NOVEMBER 2022

Application for bail pending appeal

Ms. V. Nyika, for the applicant

Ms. C. Mabhena, for the respondent

DUBE-BANDA J:

This is an application for bail pending appeal against conviction and sentence. The applicant was arraigned before the Magistrates’ Court sitting at Hwange. The applicant and his co-accused who are not part of this application were charged with the crime of contravening section 82(1)(b) of the Parks and Wildlife Regulations S.I. 362/1990 as read with section 128(1)(b) of the Parks and Wildlife Act [Chapter 20:14]. It being alleged that on the 17 November 2021 at VID bus stop, Hwange, the applicant and his co-accused one or all of them unlawfully possessed six pieces of raw unmarked elephant ivory weighing a mass of 25, 5 kilograms without lawful authority.

They were all convicted and sentenced to the minimum mandatory imprisonment of nine years. Aggrieved by both conviction and sentence, the applicant noted an appeal to this court. The appeal is pending under HCA 105/22. The conviction is attacked on the following grounds:

The court convicted the appellant basing (sic) on unsafe and immature evidence. The State’s case is unclear on why the police officers failed to act when another car sped off from the scene.

The State witness told the court that he arrested the appellant because it was the easiest thing to do. This shows that no investigations were done and the evidence was not safe to secure a conviction.

The court erred and misdirected itself by convicting the appellant when the State witnesses gave a different account of what transpired on the scene. The differences goes to the root of the matter.

The sentence is attacked on the following ground of appeal: that the appellant’s conviction should be set aside and the sentence should be removed.

In support of this application the applicant filed a bail statement. In his statement he contends that he has prospects of success on appeal, and that the interests of justice will not likely be compromised or endangered by his release on bail. Regarding prospects of success against conviction it is contended that the trial court convicted the appellant based on unsafe and immature evidence. It is contended further that the State case is unclear why the police officers failed to act when another car sped off from the scene. It is argued that a State witness testified that he arrested the appellant because it was the easiest thing to do, which shows that no investigations were done and the evidence was not safe to secure a conviction. The State witnesses are attacked for allegedly giving different accounts of what transpired at the scene of crime. It is argued further that the decision of the trial court is so grossly unreasonable in its defiance of logic, such that no reasonable court would come to such a decision.

Regarding prospects of success against sentence it is contended that the conviction should be set aside and the sentence removed. It is argued that a person who enjoys prospects of success is unlikely to abscond, and therefore the applicant should be released on bail pending appeal.

The applicant contends that it has been noted that in this jurisdiction appeals take long before they are set down for a hearing, some take more than a year. It is argued that the delay in hearing the appeal will render it academic and such will prejudice the applicant. It is argued further that there is no cognisable indication that if released on bail he will abscond. He is a man of fixed abode. He has no travel documents. Did not abscond before his arrest. He stood his trial to clear his name despite the erroneous conviction. Ms. Nyika counsel for the applicant argued that the applicant is a good candidate for release on bail pending appeal.

This application is opposed.  It is contended that the State proved its case beyond a reasonable doubt and there are no prospects of success on appeal. It is contended further that the applicant is a flight risk. Ms. Mabhena counsel for the respondent argued that the applicant is not a good candidate for release on bail pending appeal and the application must be refused.

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) at 447H – 448C.

In S v Gomana SC 166 of 2020 the court said:

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. See: Madzokere & Ors v The State SC 08/12.

Therefore the main factors to consider in an appeal against a refusal of bail by a person convicted of an offence are twofold: Firstly, the likelihood of abscondment. Secondly, the prospects of success on appeal in respect of both conviction and sentence. See S v Williams 1980 ZLR 466 (A) at 468 G-H; S v Mutasa 1988 (2) ZLR 4 (S) at 8D; S v Woods SC 60/93 at 3-4; S v McGowan 1995 (2) ZLR 81 (S) at 83 E-H and 85 C-E. 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 of 2020; Mungwira v S HH 216\10.

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

The gravamen of the appellant’s contention against the judgment convicting and sentencing him largely depends on factual findings and evidentiary issues. The facts found proved are that the State witnesses were attracted to the applicant’s vehicle by the position it was parked at the bus stop next to another vehicle. These two vehicles were close to each other, their backs close to each other but facing opposing directions. The witnesses saw sacks being offloaded from the applicant’s vehicle and placed on the ground. The sacks contained six pieces of raw unmarked elephant ivory weighing a mass of 25, 5. One vehicle sped off the scene and one person fled from the scene. The applicant and his two co-accused were then arrested.

In his defence the applicant averred that he gave a lift to one Mpendulo Munsaka who brought the sacks that carried ivory. The trial court found his defence to be false and that he was in joint possession of the ivory with his co-accused. A perusal of the record establishes, for the purposes of this application that the conviction by the trial court cannot be faulted as it was supported by evidence. The factual finding by the magistrates’ court that the applicant was in possession of the ivory is insurmountable and consistent with the rest of the evidence on record. 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 both conviction.

In respect of sentence the trial court found no special circumstances and sentenced the applicant to the mandatory prison term of nine years. For the purposes of this application I take the view that the finding that there were no special circumstances cannot be faulted, and therefore there are no prospects of success on appeal against sentence.

The applicant is a flight risk. He has been convicted of a very serious offence and sentenced to nine years imprisonment. He has experienced the rigours of imprisonment.  He still has a long way to go as he was sentenced to an effective nine years in imprisonment. The remaining sentence is likely to cause him to abscond if he is released on bail pending appeal. The 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. The less likely the prospects of success on appeal, the more inducement there is on an applicant to abscond. On the facts of this case the applicant is just a flight risk and not a good candidate for bail pending appeal. See: State v Williams 1980 ZLR 466 (S).

The applicant has not discharged the onus of showing why justice requires that he should be granted bail pending appeal. He cannot be released into society pending his appeal which has no reasonable prospects of success. In the circumstances of this case, I am satisfied that it is not in the interests of the administration of justice that the applicant be released on bail pending appeal.

In the result, I order as follows:

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

Mhaka Attorneys, applicant’s legal practitioners

National Prosecuting Authority, respondent’s legal practitioners