Deserve Dekete v The State

### Preamble
1
HH 292-21
B 975/21
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DESERVE DEKETE

versus

THE STATE

HIGH COURT OF ZIMBABWE

CHAREWA

HARARE, 4 & 15 June 2021

Bail Application

Mr C Kavhumbura, for the applicant

Ms K H Kunaka, for the respondent

CHAREWA J: The appellant was convicted of fraud in contravention of s 136(a) & (b) of the Criminal Law (Codification and Reform) Act, [Chapter 9:23], in that on 21st August 2020, with intent to deceive one Enock Atukwa, or realising that there was a real risk or possibility of deceiving Enock Atukwa and intending to cause Enock Atukwa to act upon the misrepresentation to the prejudice of Dorcas Kandiero or realising that there was a real risk or possibility that Anock Atukwa may act upon the misrepresentation to the prejudice of Dorcas Kandiero by misrepresenting that he was the son of Dorcas Kandiero and had the authority to sign an agreement on behalf of Dorcas Kandiero when in fact he was not the son of Dorcas Kandiero and was not authorised to make the agreement on behalf of Dorcas Kandiero, the appellant signed an agreement of sale on behalf of Dorcas Kandiero. It was part of the state case that applicant subsequently claimed that the property was his as the sale agreements where in his name. Appellant was sentenced to 12 months imprisonment of which six months was suspended on the usual conditions, leaving an effective prison sentence of six months.

The appellant having noted an appeal against the judgment of the magistrate’s court, he sought bail pending appeal which the magistrate dismissed on the grounds that there were no prospects of success on appeal and consequently, if freed on bail, the appellant is likely to abscond. Appellant has now noted an appeal against refusal of bail pending appeal. He submits that the magistrate misdirected herself by relying on her judgment to deny bail on the grounds of lack of prospects of success, when the record reveals that Enock Atukwa confirmed that he received his instructions directly from the complainant and hence there was no reason for him to act on any alleged misrepresentation by the appellant. Consequently, the appeal does have prospects of success and bail should not have been refused. Further appellant submits that the magistrate misdirected herself in refusing to grant bail on the grounds of fear of abscondment when it is evident from the record that appellant is a gainfully employed family man of fixed abode and who never defaulted while on bail pending trial.

The appeal against refusal of bail is opposed on the grounds that there was overwhelming evidence leading to a finding of credibility of the state witnesses which finding an appellate court is unlikely to interfere with. Therefore, the appeal against conviction is unlikely to succeed. In the circumstances, it is the state’s position that such an appeal which is doomed to fail will likely lead to appellant absconding. Besides, appellant is not dissatisfied with the sentence but is only appealing against conviction. Therefore, expeditious prosecution of his appeal should suffice.

It is trite that the overarching principle governing bail pending appeal is that it should be clear, on a balance of probabilities, that it is in the interests of justice that an appellant be released on bail pending appeal. And, in refusing or granting an application for bail pending appeal, a court must take account of all the factors listed in s 117 and 117A, the cumulative effect of which is intended to serve the interests of justice. Therefore, while the prospects of success are important, legislative intervention in light of s 123(2), means that prospects of success are not the be all and end all in determining whether to grant or refuse bail pending appeal as they must be considered together with all the other factors.

Consequently, bail must be granted in the interests of individual liberty unless it is not in the interests of justice. Consideration of the factors in s 117 and 117A assists a judicial officer to strike a balance between protecting individual liberty and ensuring proper administration of criminal justice. Failure to do so is a misdirection. And in so far as an appeal against refusal of bail is concerned, the superior court may only interfere with the decision of the lower court where that lower court misdirected itself in dismissing the application for bail pending appeal.

In the circumstances of this case, the record shows that the magistrate did not consider all the factors referred in s 117 and 117A. Her decision was solely based on her own conviction that her judgment was unassailable and consequently, if granted bail appellant was likely to abscond. She thus misdirected herself. In fact, that judgment is not unassailable, given that the witnesses testified that complainant gave instructions directly to the seller, casting doubt on the alleged misrepresentation.

Furthermore, regard was not had to the undisputed evidence that applicant is of fixed abode, he has a family of which it may be hard for him to abandon by abscondment, and is gainfully employed. There is no evidence that he has ever travelled outside Zimbabwe or even has travel documents. Nor is it controverted that appellant was on bail pending trial and did not abscond. Clearly, the interests of justice would be served by an applicant who has prospects of success on appeal in circumstances where there is no extrinsic evidence to support the likelihood of abscondment to be granted bail pending appeal.

All this information having been placed before the court, I am of the view that appellant discharged the onus upon him to show that he ought to be granted bail pending appeal.

Consequently,

“IT BE AND IS HEREBY ORDERED THAT

The decision of the magistrate is set aside and substituted with the following:

The appellant be and is hereby admitted to bail pending determination of his appeal on the following conditions:

The appellant be and is hereby ordered to deposit the sum of $3 000 with the Clerk of Court, Marondera Magistrate’s Court.

The appellant shall continue to reside at No. 5895 Rusike, Phase 2, Marondera until his appeal is finalized.

Appellant shall report once a week, every Friday, at Marondera Police Station between 0800 hours and 1600 hours until his appeal is finalized.

Legal Aid Directorate, appellant’s legal practitioners

National Prosecuting Authority, respondent’s legal practitioners