Simbarashe Chawachimwe and Anold Kamundyariwa and Tafadzwa Kadzimwe versus The State

### Preamble
1
HH 15/21
CRB HREP184/21
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SIMBARASHE CHAWACHIMWE

AND

ANOLD KAMUNDYARIWA

AND

TAFADZWA KADZIMWE

versus

THE STATE

HIGH COURT OF ZIMBABWE

FOROMA J

HARARE,

Bail Ruling

T. C. Hungwe and D. Mtombeni for the applicant

K. Kunaka for the respondent

FOROMA J: The 3 applicants appeared in a joint trial before the Provincial Magistrate’s court at Harare Magistrates Court where they were jointly charged with contravening s 5 (3) (a) of the Public Health (Covid-19 Prevention and Containment Regulations SI 77 of 2020 ie. Pasturing and Convening a Public Gathering. They all pleaded guilty to the charge and were duly found guilty and sentenced to 12 months’ imprisonment 5 months of which was suspended for 3 years on condition that they do not contravene the said Regulations. The applicants were dissatisfied with the sentence which they regarded for reasons addressed in the grounds of appeal to be so harsh as to endure a sense of shock.

On appeal first applicant was represented by his trial counsel while second and third applicants were also represented by their trial counsel.

The applicants applied to this Court for bail pending appeal separately by reason of their notices of appeal having been noted separately.

The applicants’ applications for bail pending appeal were consolidated for purposes

of the hearing as it was convenient to hear the applications jointly as the second of trial was the same and the reasons for the challenged sentence were also the same. In addition, although the notices of appeal were separately entered the challenge against sentence was essentially the same and the relief on appeal was the same namely that the sentence of the Court a quo be set aside and be substituted with a fine of ZW 20 000.00 or in default of pay imprisonment for one month alternatively 120 hours of community service at Matapi Police Station, Mbare Harare.

At the trial of the matter the State relied on a State ethnic which inter alia stated under paragraph 5 as follows: -  5- Chrispen  Vengai Mupamhanga visited a gathering and noticed a stage which was hired by accused one (flerein first applicant) who also organised a Music gala and hired the Music Producers.

Arnold Kamundyariwa (herein second applicant), Tafadzwa Kadzimwe (3rd applicant), (accused two and three, and the other accused persons (still at large) to perform some music while celebrating new year’s ‘eve”

When the State outline which contravened facts of which the aforesaid paragraph 5 was past was heard to the applicants in Court, the Defence Counsels both confirmed the plead of guilt and that the essential elements of the offence and facts had been explained and understood before they were each pronounced guilty as charged by the Court.

In their notice of appeal, the applicants essentially attack the sentence passed by the Magistrate’s Court as being so excessive as to endure a sense of shock for reasons that (a) the applicants (appellants) are youthful offenders (b) the appellants pleaded guilty and said the Court valuable tune and that the Court did not properly give consideration to two alternation sentences which were appropriate in the circumstances ie. A fine or community service and in the case of first and third applicants that they were wrongly on the basis that they organised the gala when they were only hired to play music by the 1st applicant. It is applicants’ contention that their appeals against sentence has prospects of success and by reason of the likely delay in the determination of the appeal their appeal if successful would be of academic significance as by the tune of the determination they must probably will have completed serving the six months sentence especially tallying into amount the one third remission on amount of good behaviour. 	The application for bail was opposed by the State which concede (a) That the second and third applicants were sentenced on the wrong factual basis ie. That they were involved in organising the music gala yet they were only hired by first applicant to play music and (b) that the delay of appeal in the determination would more than likely result in the applicants completing serving their sentence before the determination of their appeals. Despite these concessions the State argued that the applicants’ appeals had no prospects of success and so the application for bail pending appeal should be dismissed.

The test for determining prospects of success has according to precedence been described as whether the appeal is arguable ad not whether the prospects of success are bright, or probable.

While the respondent submits very strongly that applicants have no prospects of success on appeal the standard she applies for purposes of determination of this application is incorrect. It is clear that the Appeal is arguable and is not hopelessly without merit. In my assessment the fact that the performance of community service may have been suspended for the period of lockdown does not mean that where appropriate such a sentence cannot competently be imposed when a convicted person is sentenced during the lockdown period. Clearly therefore the reason for discounting community service in the consideration of an appropriate sentence amounts to a misdirection which in the view of this court will leave the appeal court at large in determining an appropriate sentence. Besides the respondent cannot possibly argue that the second and third applicants’ appeal has no prospects of success when it has conceded that the court sentenced them on a wrong factual basis i.e. that they were involved in organizing the music gala. It cannot be argued that the need to distinguish first applicant and the second applicant and third appeal for purposes of sentence I not a moot point in the circumstances particularly given that some of the persons arrested for attending the gathering gala were punished by way of police determined fines of $500.00.

In the circumstances the court is satisfied that the appellants appeal is not only arguable but the applicants are entitled to their liberty so that any delay in the finalization of their appeal does not prejudice them by the rendering of any success in the appeals purely academic.

Applicants are not obvious flight missiles and for this reasons they are granted bail as follows of the draft order

1st applicant are granted bail on the following conditions

Each applicant to deposit ZW$10 000.00 with the Clerk of Court Harare Magistrates Court.

1st applicant (Simbarashe Chanachimwe to reside at Block 14 C 20 Matapi Flats Mbare, Harare until the appeal is finalized.

1st applicant to report at ZRP Matapi Police Station once every fortnight on a Friday between 6.00 a.m. and 6.00 p.m. until the appeal is finalized.

2nd applicant to reside at Block 9 A10 Matapi Flats Mbare, Harare until the appeal is finalized.

3rd applicant to report once every fortnight on a Friday between 6.00 a.m. and 6.00 p.m. until the appeal is finalized.

The 3rd applicant to reside at 2 Silverstone Greendale, Harare until matter is finalized

3rd applicant to report at Matapi ZRP Mbare, Harare once every fortnight on a Friday between 6.00 a.m. and 6.00 p.m. until the appeal is finalized.