Costa Munatsi v The State

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HH 375-2012
B 188/12
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COSTA MUNATSI

versus

THE STATE

HIGH COURT OF ZIMBABWE

MWAYERA J

HARARE, 22 March 2012

Bail Pending Appeal

B Chikovero, for the applicant

A Masana, for the State

MWAYERA J:  The application before the court is for bail pending appeal against sentence. The State opposed the application and the court to a greater extend agreed with the State and thus dismissed the application.

The background of the matter is that the applicant appeared before the magistrate court and pleaded guilty to possession of precious stones namely four pieces of diamonds. It was the State’s contention in the court a quo that the applicant was found in possession of precious stones in contravention of s 3(1) of the Precious Stones Act [Cap 21:06], in that on 15 December 2008 at Mpandawana Flea Market, Gutu the accused not being a holder of a licence or permit or a person authorised in terms of the Act unlawfully dealt in or possessed four pieces of rough diamonds.

Nothing turns out from the conviction which emanated from the accused’s own plea and the trial court canvassed essential elements. In fact the applicant’s application as presented was for bail pending appeal against sentence only.

In applications for bail pending appeal the main consideration is whether or not there are prospects of success on appeal, whether there is risk of abscondment or not and the length of the delay before the appeal is heard. The case of State v Dzawo 1998 (1) 536 (SC) is instructive. The applicant submitted that there are prospects of success on appeal against sentence pointing out that there were special circumstances which the court should have taken note of and depart from the mandatory sentence of five years as provided by the relevant Act. The applicant cited extreme economic difficulties in 2008 as special circumstances and that many people were not apprehended and prosecuted for illegally possessing diamonds, and that the matter took long to be prosecuted. Since 2008 (although it is conceded the applicant went to South Africa ss an economic refugee) and that the diamonds were of minimal value US$167-16.

A perusal of the record of proceedings clearly shows that the court a quo explained special circumstances and the accused highlighted economic hardship as a special circumstance. That is recorded as ordinary mitigatory factor and not special circumstances otherwise to view economic hardships as special circumstances would lead to lawlessness an anarchy in the country. Also the fact that he stones the applicant was in possession of are of  minimal value cannot be raised to constitute a special circumstance. The issue is he was in unlawful possession of precious stones.

The applicant orally withdrew the argument that other people had not been arrested and correctly did so for it certainly would not amount to special circumstances that is circumstances out of the ordinary which are extra ordinary relating/petaining to the commission of offence and offender warranting the court to depart from the mandatory sentence. Finally the applicant sought to persuade the court to accept that the delay in prosecution amounted to special circumstances. Despite the fact that the delay might have been occasioned by the accused’s none availability when he became an economic refugee in South Africa. It is my considered view such delay in prosecution does not amount to special circumstance. The period of waiting and anxiety can definitely be taken as mitigating but not special circumstance. The accused had remedies available like stay of prosecution and not to seek to rely on delay as a special circumstance.

The trial court properly exercised its value judgment in assessing the concept of special circumstances and in this case none of the mitigatory factors advances can be elevated to the status of special circumstances. The trial court properly imposed the mandatory sentence and as such there are no prospects of success on appeal. Having said that imprisonment which is the mandatory sentence is inevitable that can act as a temptation to abscondment hence militates against the applicant being a suitable candidate for bail. The fact that appeals take long to be prosecuted cannot be viewed in isolation of the other factors namely likelihood of abscondment and lack of prospects of success.

It is for these reasons that the court holds the view the application for bail pending sentence be dismissed.

Gutu & Chikowero, applicant’s legal practitioners

Attorney-General’s Office, respondent’s legal practitioners