Caleb Pfumorodze v The State

### Preamble
1
HCMSCR 1311-25
HMA 35-25
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CALEB PFUMORODZE

Versus

THE STATE

IN THE HIGH COURT OF ZIMBABWE

DUBE-BANDA J

MASVINGO 14 October 2025 & 27 October 2025

Application for bail pending appeal

Ms P.  Chimwanda for the applicant

M. Tembo for the respondent

DUBE-BANDA J:

[1] This is an application for bail pending appeal. The applicant, with co-accused, who are not part of this application, were charged, tried and convicted of the crime of robbery as defined in s126(1) of the Criminal Law (Codification and Reform) Act [Chapter 9:23]. It being alleged that on 1 February 2025, in the company of his co-accused, the applicant robbed the complainant of cash and groceries valued at US$40.00. In a contested trial, the applicant was found guilty of the crime of robbery and sentenced to twelve (12) years imprisonment, of which two (2) years were suspended on the usual conditions of good behaviour.

[2] Aggrieved by his conviction, the applicant filed a notice of appeal, and the appeal is pending before this court. The applicant seeks to be admitted to bail pending the finalisation of the appeal under case number HCMSCR910/25. In summary, the conviction is attacked on the contention that the trial court misdirected itself by rejecting his alibi, which is alleged to have been raised timeously, and that he was not properly identified as one of the assailants who committed this crime.

[3] The bail application is not opposed. However, it is important to restate the trite position of the law that the granting or refusal of bail is a judicial function. The representations made by the prosecution, important as they might be, form part of the material that the court must consider in the determination of the matter. In the end, it is the court that must be satisfied that the applicant has discharged the onus, as required by the law, that it is in the interests of justice that he be released on bail.

[4] In an application for bail pending appeal, the onus is on the applicant to show on a balance of probabilities that it is in the interests of justice for him to be released on bail at this stage of the proceedings. In considering whether it is in the interests of justice to release the applicant on bail pending appeal, the court will be guided by the following principles: prospects of success on appeal; likelihood of abscondment in light of the gravity of the offence and the sentence imposed; likely delay before the appeal is heard and the right of an individual to liberty. See S v Dzawo 1998 (1) ZLR 536; S v Bennet 1985 (2) ZLR 205 (HC); S v Ncube & Ors HB 04 03; S v Gumbura SC 349/14; Muroyi v The State SC 111/20. The requirement to show the existence of prospects of success on appeal speaks to the primary consideration, that is, whether the offender will serve his sentence if released on bail, and should his appeal fail.  This is so because the prospects of success and the possibility of abscondment are interconnected. The less likely the prospects of success, the more the inducement there is for the offender to abscond.

[5] Regarding the prospects of success, the applicant contends that he raised his alibi at arrest, and that it was never investigated, and that he maintained the alibi in his defence outline. The trial court is attacked on the contended premise that the alibi was corroborated by witnesses; however, his version was rejected without justification. It is further contended that the trial court failed to consider the circumstances in which the identification was done. Regarding the likely delay before the appeal is heard, it is contended that by the time the appeal is heard, the applicant would have served a substantial portion of his sentence, and if his appeal succeeds, such would result in a miscarriage of justice. On the issue of abscondment, it is argued that he will not abscond because he was admitted to bail pending trial, and he did not attempt to abscond. In addition, it was argued that he has strong roots in Zimbabwe, and he is a family man. Therefore, he is unlikely to abscond.

[6] In support of the application, Mr Tembo, counsel for the respondent, argued that the applicant has bright prospects of success on appeal, and as such, he is unlikely to abscond if released on bail. Counsel argued that the trial court did not fully consider the nature of the evidence before it, and as a result did not effectively address the flaws inherent in the identification of the applicant as one of the assailants. Counsel argued further that the issue before the appeal court would be a factual one, being whether the identification was credible and reliable to support a conviction. In addition, counsel argued that the applicant’s alibi was not investigated, and the totality of the evidence did not disprove the alibi.   In his written submissions, counsel argued in support of a non-existent appeal against sentence; there is no such appeal before the court. The notice of appeal before the court was filed on 9 July 2025, and is an appeal against conviction only.

[7] As correctly observed by counsel for the respondent, the grounds of appeal attack the factual findings of the trial court. It is trite that an appellate court is loath to interfere with the findings of fact made by the trial court unless the findings are grossly unreasonable. It is not enough to merely aver that another court would have arrived at a different conclusion on the same set of facts. One must go beyond that to prove that the trial court, in making its decision, had taken leave of its senses, and therefore, the finding is irrational. See Hama v National Railways of Zimbabwe 1996 (1) ZLR 664 (S); S v Mupande and 2 Others (58 of 2022) [2019] ZWSC 58 (20 November 2019).  It does not appear to me that the grounds of appeal, as formulated, take cognisance of this requirement of the law.

[8] It is trite that evidence of identification must be approached with caution. See S v Dhliwayo 1985 (2) ZLR 101 [S]; S v Mthetwa 1972 3 SA 766 (A) 768; S v Mutsinziri 1997 (2) ZLR 6 (HC). It is common cause that the complainant was attacked and robbed in the manner described by the prosecution. The dispute before the trial court, which will also take centre stage on appeal, is whether the prosecution proved beyond a reasonable doubt, as required by the law, that the applicant was one of the assailants. It is not in dispute that the applicant and the complainant knew each other, and they reside in the same neighbourhood. On the date of the attack, they walked approximately ten kilometres together from the business centre to their respective homesteads. The walk lasted close to an hour. The complainant testified that on the day of the attack, he was suffering from some ailment, and as a result, he did not consume alcohol. At the moment of the attack, he had a torch on his forehead, mounted on a hat he was wearing. He was in close proximity to the attackers; he saw them and spoke to them. They were still wearing the same clothes they wore during the walk from the business centre. The reason they assaulted and left him for dead was because of the fear of identification. In addition, in this case, an identification parade would not have served a useful purpose, this is so because identification parades are, in general, held under circumstances where the suspect is not known or is a stranger to the identifying witness. In casu, the applicant and the complainant knew each other.

[9] Both counsels argued that the applicant’s alibi, which was raised timeously, was not investigated, and the totality of the evidence did not disprove it.   In S v Malefo 1998 1 SACR 127 (W) at 158a-e, the court stated that in assessing an alibi, a court must consider the following: that there is no burden on the accused to prove his alibi; if there is a reasonable possibility that the alibi is true, then the prosecution has failed to discharge its burden of proof and the accused must be given the benefit of doubt; if there are identifying witnesses, the court should be satisfied not only that they are honest, but that their identification of the accused is reliable; the alibi must be assessed in the context of the entire evidence before court, and the ultimate test is whether the prosecution has furnished proof beyond a reasonable doubt. It is indeed correct that the applicant testified and called witnesses who testified that at the time the attack occurred, he was home. It is a rule of evaluation that evidence be weighed as a whole, i.e., that of the prosecution and the defence. The accused’s alibi is not assessed in its own compartment; it is assessed in light of the totality of the evidence before the court.  The trial court considered all the evidence and, notwithstanding the alleged alibi, found that the applicant was properly identified as one of the assailants.

[10] On a closer scrutiny of the evidence, I take the view that the applicant has no reasonable prospects of success on appeal against conviction. The prospects of success and the possibility of abscondment are interconnected. The less likely the prospects of success, the more the inducement there is for the applicant to abscond. The risk of abscondment has increased. This is so because he has been convicted and has already experienced incarceration. The sentence of imprisonment is severe. There is, therefore, a high probability that the applicant will abscond if released on bail pending appeal.

[11] In considering the facts of this case, viewed holistically, without hair-splitting, the applicant did not discharge the onus of showing that it would be in the interests of justice to admit him to bail at this stage. In State v Tengende & Ors 1987 ZLR 445, the court held that the proper approach in applications for bail pending appeal is that in the absence of positive grounds for granting bail, it will be refused. The applicant has not proffered positive grounds for allowing him to be released on bail. In my view, the absence of reasonable prospects of success on appeal, the prospect of a prison term, coupled with his fresh experience of post-trial incarceration, affords abundant incentive for him to abscond. It is for these reasons that this application must fail.

In the result, I order as follows:

The application for bail pending appeal be and is hereby dismissed.

Saratoga Makausi Law Chambers, applicant’s legal practitioners

National Prosecuting Authority, respondent’s legal practitioners