Vengayi Nyenya v The State

### Preamble
1
HB 5/23
HCB 432/22
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VENGAYI NYENYA

Versus

THE STATE

IN THE HIGH COURT OF ZIMBABWE

MAKONESE J

BULAWAYO 23 NOVEMBER 2022 AND 12 JANUARY 2023

Bail Pending Appeal

D. Mhiribidi, for the applicant

K.M Guveya, for the respondent

MAKONESE J:	Applicant was arraigned before the Magistrates Court sitting at Beitbridge on a charge of fraud as defined in section 136 of the Criminal Law (Codification and Reform) Act (Chap 9:23).  Applicant pleaded not guilty to the charge and was duly convicted at the end of a full trial.  Applicant was sentenced to 60 months imprisonment with 36 months suspended on the usual condition of future good conduct.  A further 4 months were suspended on condition of restitution.  Aggrieved by the conviction and sentence, applicant lodged an appeal with this court.  This is an application for bail pending appeal.  The application is opposed by the respondent.

FACTUAL BACKGROUND

Sometime in 2006 the applicant purchased stand number 898 Medium Density, Beitbridge from one David Siasongwe.  The property remained in the names of David Siasongwe.  On 25th August 2008, the applicant sold the property to the complainant, one Rejoice Madonko.  The property was at window level at the time of the sale.  The property was sold to Rejoice Madonko for a sum of ZAR 370 000.  An Agreement of Sale was prepared by a legal practitioner a Mr Tshakalisa.  It is not in dispute that Rejoice Madonko paid a total of ZAR 317 000 towards the purchase price, leaving a balance of ZAR 53 000.  Complainant made certain improvements to the property up to beam level.  She made also some alterations to the existing structure.  She testified that the value of the improvements she made came to ZAR 300 000.  At a later date around 4th July 2018, the applicant sold the same property to one Robert Tinashe for the sum of USD 40 000.  Applicant denies that he committed an act of fraud in violation of section 136 of the Criminal Law (Codification and Reform) Act (Chapter 9:23).  Applicant avers that he had lost contact with the complainant and that 3 years had elapsed since receipt of the last instalment from the complainant.  Applicant contends that since complainant had breached the contract of sale, he was entitled to dispose of the property as he deemed fit.  It is not in dispute that on the 15th of May 2013 this court granted defendant judgment against the complainant for an amount of ZAR 53 000 together with costs of suit.  Applicant argues that he took advice from his lawyers when he re-sold the property to recover his outstanding balance.

SUBMISSIONS BY THE APPLICANT

In his bail statement, applicant contends that he is a suitable candidate for bail.  He avers that his appeal enjoys bright prospects of success.  He argues that the state in the court a quo did not prove its case beyond reasonable doubt.  In particular, the applicant contends that the court a quo had misdirected itself when it held that the applicant had misrepresented to the complainant any facts surrounding the sale of the house.  Applicant contends that the essential elements of fraud were not proved beyond reasonable doubt.  Applicant submits that the court a quo erred at law in imputing around liability to the applicant for conduct whose remedy was in the civil law.  Furthermore, the applicant argues that the learned Magistrate in the court a quo erred and misdirected himself by dismissing off - hand the applicant’s defence that he acted on the legal advice given to him by his erstwhile legal practitioners.

Applicant contends that:-

there is no likelihood of abscondment.

There is no likelihood of him committing further offences if granted bail.

There are good prospects of success on appeal.

SUBMISSIONS BY THE RESPONDENT

The respondent argues that the applicant has failed to show that he has prospects of success on appeal.  Respondent contends that the presumption of innocence no longer applies in view of the fact that applicant has been convicted.  Respondent argues that applicant has not proved any misdirection on the part of the court a quo’s reasoning in arriving at the conviction and sentence.  It has not been argued by the state that the applicant is likely to abscond if granted bail pending appeal.  This application essentially turns on whether the applicant had shown that there are reasonable prospects of success on appeal.

THE LAW ON BAIL PENDING APPEAL

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 terms of section 115 (2) of the same Act it is provided that where an accused person who is in custody in respect of an offence applies to be admitted to bail after having been convicted of the offence, he shall bear the burden of showing on a balance of probabilities that it is in the interests of justice for him to be released on bail.

It is settled law that the applicant in an application for bail pending an appeal bears the onus of proving that he should be admitted to bail. See State v Williams 1980 ZLR 466D; State v Mutasa 1988 (2) ZLR 4 (S); S v Woods SC60/ 93.

In circumstances where an applicant in an application for bail pending appeal can point to an irregularity in conduct of proceedings in the court a quo, the applicant will have a lighter onus to discharge, in proving that he is entitled to bail pending his trial.  In this matter, although there is no apparent misdirection in the conduct of the proceedings,  the court is satisfied that the appeal carries reasonable prospects of success.  Indeed a perusal of the record does show that the complainant in the matter breached the original Agreement of Sale.  This led to the applicant approaching this court for an order for the payment of the outstanding balance of ZAR 53 000.  The facts on the record tend to show that after payment of the last instalment, the complainant could not be located for a period in excess of 3 years.  In his grounds of appeal applicant argues that his guilt was not proved beyond reasonable doubt.  It seems to me that this was a classical case of a double sale.  To that extent, it cannot be argued that there are no prospects of success at all.  The law concerning bail pending appeal has been laid out in a litany of cases, including the following;

S v Kiplin 1978 RLR 282 AD

S v Williams 1980 ZLR 466 AD

S v Jengende & Ors 1981 ZLR 453 (SC)

S v Dzawo 1988 (1) ZLR 536 (S)

The thread that runs through all the cited cases is that bail pending appeal should be granted where there are reasonable prospects of success and where there is no danger to the administration of justice.

In the circumstances, it is my conclusion that the applicant has proved that he is a suitable candidate for bail pending trial.  Accordingly, the application for bail pending appeal is granted in terms of the Draft Order.

Mutuso, Taruvinga & Mhiribidi, applicant’s legal practitioners

National Prosecuting Authority, respondent’s legal practitioners