Archford Chari and Leonard Rebanewako v The State

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HMT 13-19
B 17/19
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ARCHFORD CHARI

and

LEONARD REBANEWAKO

versus

THE STATE

HIGH COURT OF ZIMBABWE

MWAYERA J

MUTARE, 14 and 28 February 2019

Bail pending trial

L Chigadza, for the appellants

M Musarurwa, for the respondent

MWAYERA J: This is an application for bail pending appeal against both conviction and sentence.

The applicants were jointly charged of obstructing or endangering free movement of persons or traffic as defined in s 38 (c) of the Criminal Law (Codification and Reform) Act [Chapter 9:23] in that, on 15 January 2019 at 174 kilometre peg along the Harare – Mutare Road both applicants or one or more of them unlawfully left or placed on or over Harare – Mutare Road burning tyres with the intention or realising that there was real risk or possibility of obstructing Harare – Mutare Road or endangering persons using it. After a protracted trial both the applicants were convicted and sentenced to each 3 years imprisonment of which 1 year imprisonment was suspended for 5 years on usual conditions of good behaviour.

Aggrieved by both the conviction and sentence the applicants lodged a notice of appeal outlining grounds of appeal. The applicants’ contention is that the court a quo erred in that it convicted the applicants in circumstances where the State failed to prove its case beyond reasonable doubt. Further that the court a quo erred in relying on the evidence of three state witnesses whose credibility was questionable given the high chances of connivance, as deduced from the fact that the witnesses self-recorded statements were similar word for word save for personal details, national identity numbers and cell phone numbers. In respect of sentence, the applicants’ contention is that the court a quo erred in that it failed to consider the option of a fine or community service in circumstances where it was warranted. The noted appeal is still to be determined hence the applicants have approached the court seeking to be admitted to bail pending appeal.

The applicants argued that the appeal has prospects of success both on conviction and sentence thus minimising likelihood of abscondment. The respondent opposed the application. It was submitted by the State counsel that there are no prospects of success on appeal. State counsel presented argument that the court a quo properly analysed evidence of witnesses and convicted the accused on the basis of evidence.

In an application of this nature the law is settled on what the court has to consider in coming up with a decision that is in the interests of administration of justice. Worth noting is the fact that unlike in bail pending trial, the presumption of innocence no longer exists as the applicant is a convict. What falls for consideration can be summed up as follows:

prospects of success on appeal

likelihood of abscondment

likely delay in hearing of the appeal

right to individual liberty.

These principles have been emphasised in many cases including the cases referred to by both parties. S v Dzawa 1998 (2) ZLR 536, S v Tengende and Ors 1981 (1) ZLR 445/8, Mungwira v The State HH 216/10.

I must mention that in applications for bail pending appeal the applicant has to prove on a balance of probabilities that it is in the interests of justice for him to be released on bail. Section 115 (c) of the Criminal Procedure and Evidence Act [Chapter 9:07] is instructive. In seeking to show there are prospects of success on appeal the applicant need not prove that it is substantially certain that the appeal will succeed. All he has to show is that the appeal is reasonably arguable and thus it is in the interest of administration of justice to allow the applicant chance to prosecute his appeal while enjoying his right to liberty albeit a convict. See S v Taurai Chikwizhu HH 396/17. In the present case the matter hinged a credibility of the 3 State witnesses. Ordinarily the appeal court does not readily interfere with the decision of the court a quo where the question of credibility is central to the determination of the matter.

A reading of the reasons for judgment reveals that the court a quo did not comment on credibility of witnesses. The 3 police officers who pointed out that they recorded statements on their own agreed that their statements did not have details which they sought to give in oral evidence in court. The explanation ranged from being very busy to not considering detail as important. Given the nature of allegations and that the identity of the soldiers they said assisted in arrest remained unestablished the question of corroboration remains glaringly outstanding.  When all these gaps are viewed in conjunction with the applicants’ argument that they were arrested by soldiers when they passed by the place where there was commotion, then, that the appeal is reasonably arguable is a reality.

The lack of attention to detail and that the 3 witnesses who testified accepted that the statements were identical word for word serve for their identity particulars and cell numbers further boosts the applicants’ claim that there was collusion to falsely implicate them thus rendering the appeal reasonably arguable. Further the fact that there was a group of 12-15 people and that the witnesses observed for seconds to minutes at a distance of about 50 metres and then gave chase with assistance of soldiers creates doubt as to whether the applicants were passer-bys or perpetrators.

All these arguable points tend to point to their being prospects of success on appeal. If the appeal is arguable then there is no inducement of abscondment which would endanger the administration of justice. The likely delay in hearing the appeal is now not very real given the rate at which appeals are being processed and entertained. However, delay even for the shortest possible time is prejudicial to the applicant where there are likely prospects of success on appeal. The penalty provisions provides for the option of a fine and in the absence of an explanation for discounting the fine and community service the chances of interference on appeal exist.

In this case, given that the appeal is reasonably arguable and that sentence is likely to be interfered with, there are prospects of success on appeal. The fears on not having finality to litigation can be cured by imposition of conditions. It is in the interest of justice that the applicants be admitted to bail.

Accordingly it is ordered that the applicants be and are hereby admitted to bail pending appeal No. CA 18/19 on the following conditions:

Each deposits $200-00 with the Clerk of Court, Rusape Magistrates’ Court.

1st applicant resided at NE 197 Vengere, Rusape until the appeal is finalised.

2nd applicant resided at house no. NE 3238 Vengere, Rusape until the appeal is finalised.

Each reports at Rusape Police Station on the 1st day of each successive month pending the determination of the appeal.

Chigadza and Associates, appellants’ legal practitioners

National Prosecuting Authority, respondent’s legal practitioners