Musa Shava and Clive Sakala v The State

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HH 165/2013
B133/13
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MUSA SHAVA

and

CLIVE SAKALA

versus

THE STATE

HIGH COURT OF ZIMBABWE

MWAYERA J

HARARE, 15 February 2013

T. Mundondo, for the applicant

A. Masamba, for the respondent

MWAYERA J:	The applicants approached the court on 15 February 2013 on appeal against dismissal of application or bail pending appeal against both conviction and sentence. Upon considering the written and oral submissions by both appellant counsel and state counsel I dismissed the application pointing out in summary that the appellants’s application lacked merit and had no prospects of success.

Through a letter received by the clerk on 19 March 2013 the appellant counsel requested for written reasons for judgment.

The background of the case is outlined here under. The applicants were convicted of contravention of S113(1) of the Criminal Law codification and Reform Act. “Theft” and contravention of Section 3 (1) of the Gold Trade Act [Cap: 21:03] deal with or possession of gold without licence. Both accused pleaded guilty and were duly convicted on their own plea and sentenced to as follows;. count 1 each $20 or in default of payment 14 days imprisonment. Count 2 each 5 years imprisonment.

They both noted an appeal against conviction and sentence. It is against this background that the matter was brought before this court.

It is apparent from the record of proceedings of the trial court that essential elements of the offence were properly canvassed and both accused appreciated the offence charged which they pleaded guilty to. The fact that the charge was coughed in a manner excluding the penalty provision is not a misdirection of the magnitude sought to be potrayed by the appellants that they were not charged of any offence. A reading of the record of proceedings clearly show people who admitted to having dealt or possessed gold without authorisation as envisaged by S3(1) of the Act. The penalty provision S(3)(3) of the Gold Trade Act provides penalty for an offence committed in subsection 3(1). The charge sheet, outline of the state case and essential elements as canvassed by way of question and answer from court and appellants respectively clearly supports the conviction of the appellants in that what was in their unlawful possession was gold as properly asseyed by an asseyor whose report was admitted in evidence the trial court Exhibit 1. The conviction of the appellants was well founded on properly assessed components formulating the offence. There are no prospects of success on appeal  against conviction. Now turning to sentence.

The trial court was properly guided by the penalty provisions as the sentence imposed for the two counts is appropriate. The trial court clearly explained what constitutes special circumstances and the applicants understood the notion of the mandatory sentence which would only be departed from upon existence of special circumstances. Both applicants did not have any special circumstances hence the mandatory sentence remained applicable. Again it is clear there are no prospects of success on appeal in respect of sentence. In fact the application lacks merit as the sentencing discretion was properly exercised.

In applications for bail pending appeal the principles are fairly settled that the court has to consider:-

Whether or not there are prospects of success an appeal.

The likely delay in hearing of the appeal.

The likelihood of or otherwise of abscondment and

The interest of administration of justice.

These factors of necessity have to be cumulatively considered. In casu, having said there are no prospects of success on appeal against conviction and sentence it is apparent that given the mandatory sentence of imprisonment the likelihood of abscondment is high. It is more so given the inducement to abscond which will be occasioned by the lengthy imprisonment. The likelihood of abscondment is high and to grant the applicants bail in such circumstances would frustrate the interest of administration of justice.

It is accepted the prosecution of appeals might take long but that factor alone in the wake of lack of prospects of success on appeal and the likelihood of abscondment cannot firmly stands for bail to be considered. In any event given the lack of special circumstances imprisonment is the likely sentence and there are no prospects of interference with that sentence.

It is for above reasons that there are no prospects of success on appeal and that there is likelihood of abscondment that the court concluded that the applicants’s application for bail pending appeal be dismissed.