Raymond Muchemanhema v The State

### Preamble
1
HH454-13
CRD B 903/13
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RAYMOND MUCHEMANHEMA

versus

THE STATE

HIGH COURT OF ZIMBABWE

MATANDA-MOYO J

HARARE, 26 November, 2013 and 2 December, 2013

Bail Application

M. Masimba, for applicant

I. Machiri for respondent

MATANDA-MOYO	J. 	The applicant was convicted of contravening s 6(1)(a) of the Road Traffic Act [Cap 13:11]. The trial magistrate found no special circumstances and sentenced the applicant to 6 months imprisonment. In addition the applicant was prohibited from driving all vehicles falling in the class of commuter omnibuses for life.

The applicant was driving a public passengers motor vehicle whilst not being a holder of a driver’s licence. At the time of arrest there were passengers being ferried in the said vehicle. The trial court imposed the minimum mandatory sentence. Aggrieved by that sentence the applicant noted an appeal to this court. He now applies for bail pending the determination of such appeal.

The main considerations in an application of this nature are;

the prospects of success on appeal;

the likelihood of abscondment

the potential delay before an appeal is heard, and

the right of an individual to liberty

See State v Dzawo 1998 (2) ZLR 536. However the main consideration here is applicant’s prospects of success on appeal.

I do not believe that applicant has good prospects of success on appeal. Firstly the applicant was convicted on his own plea of guilty. The guilty plea was accepted by the trial court in terms of s 271(2)(b) of the Criminal Procedure and Evidence Act. All the essential elements were put to and accepted by the accused. Applicant’s counsel had attempted to make submissions that the vehicle that was being driven by the applicant was not a commuter omnibus. However I have perused applicant’s grounds of appeal and satisfied myself that applicant only noted an appeal against sentence. Applicant has not appealed against conviction and therefore such submission by counsel is misplaced.

Applicant’s argument are that;

the court a quo erred in not considering imposing community service;

the sentence imposed by the court a quo is too harsh and induces a sense of shock considering that applicant is a first offender who pleaded guilty to the offence

applicant is a family man with four minor children. Applicant’s wife is not married, and

there were special circumstances

The applicant is not likely to succeed on the first point. Once a statute provides for a mandatory sentence then the issue of alternative penalties fall away. The question of alternative forms of punishments come into being once there is a finding of special circumstances. In the present case once the court found that there were no special circumstances, then the court had no option but to impose a mandatory  sentence in terms of the law see Tatenda Mutandiro v The State HB 60/10.

The magistrate in the court a quo found no special circumstances in the matter. A look at applicant’s submission show that what applicant put before the magistrate were mitigatory factors and not special circumstances. That the applicant is married with four children and an unemployed wife surely relates to mitigation. The applicant’s story that he was going to take his sick grandfather to a witchdoctor was found not to be a special circumstance. The magistrate was correct in that respect.

I am satisfied that applicant’s chances of success on appeal are not good. The presumption of innocence is no longer operating on the applicant. With applicant’s chances of success on appeal being slim, if granted bail the likelihood of absconding is high. It is not in the interest of justice to grant the application bail at this stage.

Accordingly the application for bail is dismissed.

I. Murambasvina Legal Practitioners, applicant’s legal practitioners