Godfrey Mashafunga v The State

### Preamble
1
HH 508-13
CRB 593/13
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GODFREY MASHAFUNGA

versus

THE STATE

HIGH COURT OF ZIMBABWE

MATANDA-MOYO J

HARARE, 26 November 2013 and 4 December 2013

D. Machaya, for the applicant

E Makoto, for the respondent

BAIL PENDING APPEAL

MATANDA-MOYO J: This is an application for bail pending appeal.  The brief facts are that applicant was charged and convicted of Contravening s 82 (1) of the Parks and Wildlife SI 362/1990 as read with s 128 (b) of the Parks and Wildlife Act [Cap 20:14], that is to say unlawful possession of unregistered or unmarked ivory and was sentenced to 9 years imprisonment.  The applicant noted an appeal against conviction and sentence.

The factors to be considered by the court amongst others include applicant’s prospect of success on appeal, the likelihood of abscondment in light of the sentence imposed, the liberty of the individual and the likely delay before the appeal can be heard see State v Dzawo 1998 ZLR 36 (s)  and State v Musasa SC 45/02

Applicant appealed against conviction basically on the ground that the informer in case was not called to testify.  However this was not fatal to the State case as the applicant was found in possession of the ivory which was actually protruding from the driver seat

In S v Mpumelolo HB 9/11 a conviction based on a tip off was upheld on review without having to call the informant to testify.  It was a case of unlawful possession of a fire arm and the accused was found in possession of the fire arm. That evidence was sufficient proof to convict.

The decision of the court was based on the credibility of the State witnesses.  An appeal court rarely interferes with the finding of a lower court on the credibility of a witness.  See Chalmers v F Chimbari & Ors SC 59/06, Robert Mugwanda  v The State SC 19/02.

In the result the application for bail pending appeal is dismissed as I am of the opinion that the applicant’s chances of success on appeal are not good and as such he should be denied bail.

Machaya and Associates, for the applicant

The National Prosecuting authority, for the respondent