William Spencer Nyamangara Versus THE State

### Preamble
1
HH 305-12
CRB R115/10
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WILLIAM SPENCER NYAMANGARA

versus

THE STATE

HIGH COURT OF ZIMBABWE

MWAYERA J

HARARE, 22 June 2012

BAIL PENDING APPEAL

TK Hove, for the applicant

The Attorney General, for the State

MWAYERA J:  The law on applications for bail pending appeal is fairly settled.  There is plethora case law on the principles that govern applications of this nature.  The case of S v Dzawo 1988 (I) ZLR 536 clearly spelt out the factors for consideration namely:

Prospects of success on appeal;

Likelihood of abscondment

Likely delay before appeal is heard;

Right of an individual to liberty.

The above cited factors are not to be considered in isolation.

The brief background of this matter is that the applicant was convicted and sentenced in the Magistrate Courts for theft of $49 250 which had been entrusted to him.  He was sentenced to 8 years imprisonment of which 3 years imprisonment were suspend for five years on the usual conditions of good behaviour.  A further 2 years imprisonment was suspended on condition he made restitution in the sum of $43 250-00, irked by the conviction and sentence the applicant appealed against the magistrate court decision and the High Court dismissed the appeal in its entirety.  The applicant has approached the court for bail pending appeal in the Supreme Court.

I have had occasion to peruse the record of proceedings, the grounds of appeal in the appeal court and grounds of appeal to the Supreme Court.  The grounds of appeal are basically the same as those that were presented for scrutiny before the appeal court.  A close look at the judgment of the appeal court clearly shows that each ground was properly addressed.

The applicant’s defence that the complainant’s money was lost in an investment which he the applicant entered with a third part (one Bernard Manyara) with consent of complainant when viewed with the totality of the evidence which was before the trial court was not only improbable but false.  The trial court can not be faulted for dismissing the applicant’s version that he gave US$52 000 in cash to a third party without reducing it to writing or calling in witness.

The conviction was well founded on evidence adduced on record and this is why the appeal court dismissed the appeal against conviction.  Upon considering the totality of evidence leading to the conviction of the applicant it is apparent that the appeal is hopeless.

The reasoning of the appeal court in dismissing the appeal is well founded. There are no prospects of success on appeal and as clearly spelt out in S v Hudson 1996 (1) SACR 431(W) prospects of success on appeal mean that if the appeal is reasonably arguable and not manifestly doomed to failure then they exist.  In this case there are no prospects of success vis conviction and sentence.  The sentence imposed of 8 years with 3 years suspended on conditions of good behaviour and a further 2 years suspended on conditions of restituting can not be said to be outrageous and inducing a sense of stock for theft of in excess of US$50 000.  The trial court has unfettered sentences discretion which it  properly exercised hence the non interfere with sentence by the appeal court.  The sentencing discretion was properly and reasonably exercised such that the Supreme Court is unlikely to interfere with the court a quo’s findings.

Having said there are no prospects of success on appeal it follows that can act as an inducement to the applicant to abscond.  The applicant has already tested prison life such that his admission on bail at this stage will put the interest of justice in jeopardy.  He is likely to abscond because for the offence he committed imprisonment is inevitable. Appeals as correcting conceded by State counsel take long to be prosecuted.

However, that factor cannot be viewed in isolation but cumulatively with the other factors.  In an event since the matter came up for appeal in this court the record is already in its transcribed form such that there will be no much delay before the appeal is heard.  Also given that imprisonment is inevitable for the offence the applicant is convicted there will be no prejudice occasioned to the applicant by his non admission to bail at this stage.

I will just mention in passing that the applicant counsel sought to rely on technicality in trying to show prospects of success by alluding to the power of Attorney not having been authenticated in terms of High Court Authentication Documents Rules 1971.  I must hasten to say this appears to be an after thought for it is not included in the grounds of appeal and heads of arguments filed in the court of appeal attached for the Supreme Court appeal.

Assuming such an anomaly occurred it is clear that the basis of conviction was common cause, the applicant did not dispute that he collected money on behalf of the complainant that he did not hand it over to the complainant.  As earlier mentioned the conviction was well sounded on evidence from both the state witness and the accused himself.

From the forging it apparent that a close look at the record of proceedings and on analysis of the court a quo and appeal court’s finding reveal no misdirection which will warrant interference with the decision.  It is clear there are no prospects of success on appeal against both conviction and sentence.  Upon considering the right to individual liberty on one hand and the interest of justice on the other admission of applicant to bail will jeopardise the interests of administration of justice.  The application for bail pending appeal is accordingly dismissed.

TK Hove and partners, applicant’s legal practitioners

The Attorney General, respondent’s legal practitioners