Clarkson Katewere v The State

### Preamble
1
HH 467-23
B 716/23
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CLARKSON KATEWERE

versus

THE STATE

HIGH COURT OF ZIMBABWE

CHIKOWERO J

HARARE, 21 & 31 July 2023

Bail Application

Applicant in person

LChitanda, for the respondent

CHIKOWERO J:

This is an application for bail pending appeal against conviction only.

On 14 April 2022 the applicant was convicted of two counts of rape as defined in s 65 of the Criminal Law Code. With both  counts treated as one for  the purposes of sentence the  Regional Court imposed a  sentence of 20 years  imprisonment  of  which 5 years  imprisonment was suspended  for 5 years on the condition  of good  behaviour.

On 21 March 2023 I granted leave to appeal the conviction out of time as well as a certificate to prosecute the appeal in person.

I also extended the period within which the notice of appeal was to be issued and served on the respondent.

Although the applicant had  also sought leave to appeal  the sentence out of time and a  certificate  to prosecute that  appeal in person as well as  an extension of time within which to appeal I did not  grant that part of the application.. I took the view that there was no reasonable prospect of success in the intended appeal against the sentence.

Having noted an appeal against the conviction the applicant is now before me seeking to be admitted to bail pending the determination of the appeal.

As pointed out by Ms Chitanda in her written response, the principles applicable in an application of this nature are settled. See S v Dzawo 1998(1) ZLR S 36 (5); S v Benatar 1985 (2) ZLR 205 (H); S v Williams 1980 ZLR 466 (A) and S v Kilpin 1978 RLR 282(A). They are the prospect of success of the appeal, the likelihood of the applicant absconding, the likely delay before the appeal is heard and the right of the individual to liberty.

The only factor in favour of the applicant is that the appeal has a reasonable prospect of success. I am aware that in her written response Ms Chitanda advocates a contrary position. However,  in light of the fact that the  application does not turn on  the prospect of the appeal  succeeding and that I allowed the  applicant leave to  appeal the  conviction out of time and to  prosecute such appeal in person , I think it unnecessary to  spell out the reasons for  holding that the appeal has a  reasonable prospect of success.   To do otherwise would be theoretical.

I think the likelihood to abscond resides in the sentence that was imposed, which is not subject of the appeal. The applicant knows that if the appeal against the conviction does not succeed he would automatically be required to serve the remaining, larger, portion of the sentence. He has been serving since 14 April 2022. He has served just over a year of the effective 12 year custodial sentence. Considering that he has experienced the rigours of a prison term for more than a year I think the applicant will seize the opportunity presented by admittance to bail pending appeal to abscond.  To admit him to bail would be akin to inadvertently giving him a licence to disappear before the appeal is set down for hearing.  That would not be in the interests of the administration of the criminal justice system.

The appeal record has been transcribed. The trial magistrate has commented on the grounds of appeal. The applicant has collected his copy of the appeal record. There is no backlog in the criminal appeals court at the High Court sitting at Harare. I take judicial notice of that fact as a member of the criminal appeals court. The High court, sitting as a criminal appeals court, is dealing with appeals noted this year. The applicant’s appeal is likely to be heard during the third term of 2023. Instead  of expending his energy towards  seeking to be admitted to  bail pending the appeal the applicant,  who has already served more  than a year of the sentence,  would do well to  write to the Registrar requesting  the setting down of the appeal  during the third term of this  year, in the  event that the  matter has not already been  so  set down . He is prosecuting the appeal in person, so no delay would be occasioned by the need for him to file heads of argument. He is not required to file such heads.

Having been convicted and incarcerated, the applicant no longer has a right to be admitted to bail pending the determination of his appeal.

This application has been made so late in the day that the need for finality in litigation has become an important consideration. To ensure that the  appeal process is not defeated  by the likely non appearance  of the applicant  at the hearing it is necessary to protect the  integrity of that process by  denying the applicant  bail pending the appeal  to ensure that the appeal  itself is heard and disposed of, on its merits.

It is for all these reasons that the application cannot succeed.

In the result, it is ordered that :

The application for bail pending appeal be and is dismissed

The National Prosecuting Authority, respondent’s Legal Practitioners.