Absolom Mboneli Demadema v The State

### Preamble
1
HB 235/22
HCB 284/22
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ABSOLOM MBONELI DEMADEMA

Versus

THE STATE

IN THE HIGH COURT OF ZIMBABWE

MAKONESE J

BULAWAYO 9 & 22 SEPTEMBER 2022

Bail pending appeal

S. Chingarande with Ms G. Ngande for the applicant

B. Gundane for the respondent

MAKONESE J:	The applicant appeared before a magistrate sitting at Bulawayo on the 29th of June 2022 facing allegations of contravening section 49 of the Criminal Law Codification and Reform Act (Chapter 9:23), culpable homicide.  Applicant pleaded not  guilty.  He was convicted pursuant to a full trial.  He was sentenced to 2 years imprisonment.  Dissatisfied with the sentence the applicant filed a notice of appeal against sentence only with this court.

The grounds of appeal are framed in the following terms:

The learned magistrate erred both in fact and in law by making a finding that appellant’s driving on the day in question amounted to reckless driving instead of ordinary negligence.

The learned trial magistrate erred both in fact and in law by disregarding appellant’s evidence to the effect that he made efforts to avoid the accident by slowing down the motor vehicle considerably and swerving to the right side of the road and the deceased having negligently contributed to the accident.

Background facts

The allegations giving rise to the charge against the applicant in the court a quo are that on the 28th of September 2021, at Mafanisa Village in Ntabazinduna, the applicant drove a Bedford truck with registration number ADL 4900, negligently and hit a pedestrian, a juvenile, Shantel Bhebhe, thereby causing her death.  The accused pleaded not guilty to the charge and the matter was referred to trial.  The state led evidence from a total of seven witnesses, five eye witnesses and two police officers in their respective roles.  The five eye witnesses were all juveniles.  The evidence of these eye witnesses was essentially to the effect that they were   walking together from school with the deceased.  As they were walking there were spread out across the road.  They were engaged in conversation.  It was the evidence of these witnesses that they suddenly heard the accused person’s truck right behind them in close proximity.  They ran to the right side of the road together with the deceased.  The first witness ran to the left.  Upon seeing the accused person’s truck veering to the side towards them, the witness ran towards the left side of the road.  The deceased was struck by the motor vehicle as she failed to cross the road to the left.  The evidence of the five juveniles was to the effect that the applicant never sounded his horn.  They saw applicant’s truck at close range.  They scattered to the side of the road. Applicant’s motor vehicle veered in the direction where the majority of them had run to.  The evidence of the police officer, Tawanda Chinorunga was that he attended the scene of the accident, taking indications from the parties, drawing a sketch plan and taking the deceased to hospital.  Brian Mubereki is an accident evaluator.  He is involved in attending road traffic accidents and assesses their causes.  He has 13 years experience.  He testified that the accident occurred on a dust road in a rural set up.  The road is fairly straight where the accident occurred.  The appellant pleaded the defence of sudden emergency in that such was created when the children ran to the left side of the road and then abruptly went to the right side of the road.  The learned magistrate in the court a quo assessed the evidence and came to the conclusion that the appellant was guilty as charged.  He made a specific finding that the appellant failed to take reasonable steps to ensure that the accident did not occur and failed to take reasonable steps to avoid the accident.

Submissions by the applicant

The applicant submits that he is a suitable candidate for bail pending appeal.  Applicant contends that the basis of the appeal is that the trial magistrate misdirected himself by making a finding that the applicant’s driving on the day in question amounted to reckless driving instead of ordinary negligence.  Applicant acknowledged that upon the conviction of the appellant the presumption of innocence no longer operates in his favour.  He undertakes not to abscond if granted bail pending appeal.  Applicant avers that there are reasonable prospects of success on appeal.

Submissions by the respondent

Respondent avers that there are no reasonable prospect of success against the contemplated appeal against sentence.  Respondent contends that the court a quo exercised its sentencing discretion properly and that this appeal carries no prospects of success.

Legal principles in an application for bail pending appeal

The granting or refusal of bail pending appeal is a matter for the discretion of the court.  In exercising such discretion the court must be satisfied that:

There are reasonable prospects of success on appeal.

That there is no likelihood that the ends of justice is not endangered.

In, Gumbura vs The State SC-25-21. BHUNU JA held as follows at page 3 of the cyclostyled judgment.

“With all due respect, the learned judge misconstrues what was required of him in respect of the application before him.  He was not asked to review the judgment of the two judge panel a quo.  He was simply being asked to determine the applicant’s suitability for bail pending appeal without determining the merits of the appeal.  The requirements of an application of this nature are well known.  All that is required to do was to assess the applicant’s prospects of success and the likelihood of prejudicing the ends of justice bearing in mind that the applicant is a convict who has lost the presumption of innocence…”

In Kiplin v S 1978 ZLR 282 (A),

The court held that the principles governing the granting of bail after conviction are different from those governing the granting of bail before conviction.  After conviction the presumption of innocence falls away.

In S v Williams 1980 ZLR 466 (A) the court held that:

“Even after conviction the courts should lean in favour of liberty if this could not endanger the interests of justice.  The prospects of success on appeal must be balanced against the interests of the administration of justice.”

In this matter the court a quo made a finding that the appellant’s conduct of driving amounted to reckless driving and sentenced him in accordance with the law.  The sentence imposed is in terms of the provisions of the law.  There was no misdirection on the part of the sentencing court in its approach to sentence.  The appeal carries no reasonable prospects of success.

Disposition

I am satisfied that the application for bail pending appeal has no merit.  The applicant failed to demonstrate the existence of reasonable prospects of success.

In the result, the application for bail pending appeal is hereby dismissed.

Sansole & Senda, applicant’s legal practitioners

National Prosecuting Authority, respondent’s legal practitioners