Belconia Sibanda and Steve Stubbs Muleya v The State

### Preamble
1
HB 253/22
HCB 301/22
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BELCONIA SIBANDA

And

STEVE STUBBS MULEYA

Versus

THE STATE

IN THE HIGH COURT OF ZIMBABWE

DUBE-BANDA J

BULAWAYO 12 SEPTEMBER 2022 & 13 OCTOBER 2022

Application for bail pending appeal

P. Sibanda for the applicants

K. Ndlovu for the respondent

DUBE-BANDA J:

This is an application for bail pending appeal against conviction and sentence. The applicants together with another person who is not part of this application were arraigned before the Magistrates’ Court sitting at Beitbridge. They were charged with eight counts of fraud as defined in section 136 of the Criminal Law (Codification and Reform) Act [Chapter 09:23]. They were convicted and each sentenced to thirty months imprisonment with six months suspended for five years on the usual conditions and a further eight months suspended on condition of restitution.

Aggrieved by the conviction and the sentence the applicants noted an appeal to this court. The appeal is pending under cover of case number H.C.A. 86/22. They now seek to be released on bail pending the finalisation of the appeal.

In support of the application the applicants filed a bail statement. In the statement they contend that the interest of justice permit their release on bail pending appeal. They underscore the point that they have prospects of success on appeal. It was contended that the trial court misdirected itself in convicting the applicants for fraud on the basis of tempered documents i.e. wage bills. It was contended further that the wage bills produced in court were in fact disputed by the applicants, averring that the ones they used had a column for signatures and were signed by the recipients of salaries.

It was also argued that the trial court grossly erred in finding that the applicants made a misrepresentation to the director of the complainant, one Erasmus Nare (Nare) when he did not testify at the trial. It was submitted further that Nare was the only witness who could have disputed or disproved the applicant’s explanation that the produced documents were different from those sent to him. The applicants attacked the authenticity of the wage bills on the basis that they were editable.

The applicants argued that the trial court grossly misdirected itself by finding that the complainant suffered prejudice, when there was no basis for such a finding. It was argued that there was no evidence of the amount of money kept in the complainant’s safe, and the amount taken to arrive at the alleged prejudice. It was submitted further that the two auditors could not prove how the alleged prejudice was incurred. It was contended further that the trial court erred in concluding that the State witnesses were credible.

Regarding sentence it was argued that the trial court imposed a very harsh and excessive sentence and that a non-custodial sentence would have met the justice of the case. It was stated that the applicants are first offenders, and the trial court did not factor into the sentencing equation the personal circumstances of the applicants and that the first applicant gave birth to a child who is now two months old and in prison. It was submitted that the applicants have good prospects of success on appeal against conviction and sentence.

It was argued that if released on bail the applicants will not abscond. The applicants argued that there are delays in hearing of appeals, and their appeal will likely take long before it was adjudicated and this might prejudice the applicants if bail pending appeal was not granted.

In its written response (drawn by Guveya) the respondent opposed the release of the applicants on bail pending appeal. It was contended that the applicants have not shown that there are prospects of success on appeal. At the hearing Mr Ndlovu who appeared for the respondent argued that the applicants have prospects of success on appeal against conviction. It was contended that the applicants seem to argue that the wrong source documents were used to charge them. The argument turns on that the auditors received PDF (a file format for capturing and sending electronic documents in exactly the intended format) documents of the pay roll from Nare and they converted these documents to excel format which could be edited. Counsel argued that the wage bills were edited and their authenticity have been destroyed. It was contended that the defence of editing the wage bills was not rebutted. It was on this basis that Mr Ndlovu argued that the applicants have prospects of success on appeal against conviction and therefore good candidates of bail pending appeal.

In such an application the established factors for consideration by the court are the prospects of success on appeal, the likelihood of the applicant absconding pending the determination of the appeal, the applicant’s right to personal liberty as well as the likely delay before the hearing of the appeal. These factors are not individually decisive. They are considered together. In Mutizwa v The State SC 13/20, it was held that:

Bail pending appeal is not a right. An applicant for bail pending appeal has to satisfy a court that there are grounds for it to exercise its discretion in his favour. In the case of bail pending appeal, the proper approach is that in the absence of positive grounds for granting bail, the application will be refused. The applicant having been found guilty and sentenced to imprisonment is in a different category to an applicant seeking bail pending trial. See: S v Tengende & Ors 1981 ZLR 445 (S) at 447H – 448C. The State v Williams 1980 ZLR 466 (S) wherein it was stated that considerations of reasonable prospects of success on the one hand and the danger of the applicant absconding on the other, are inter-connected and have to be balanced. Furthermore, that the less likely the prospects of success on appeal, the more inducement there is on an applicant to abscond. It also emphasised that in every case where bail after conviction is sought the onus is on the applicant to show why justice requires that he should be granted bail.

In the case of Essop v S (2016) ZASCA 114 cited in Madamombe v The State SC 117/21 the court in defining the term “prospects of success” held thus:

What the test for reasonable prospects of success postulates is a dispassionate decision, based on the facts and the law that a court of appeal could reasonably conclude different to that of the trial court. In order to succeed, therefore, the appellant must convince this court on proper grounds that he has prospects of success on appeal and that those prospects are not remote, but have a realistic chance of succeeding. More is required to be established than that there is a mere possibility of success, that the case is arguable on appeal or that the case cannot be categorised as hopeless. There must, in other words, be a sound, rational basis for the conclusion that there are prospects of success on appeal.

It is on the basis of these legal principles that this bail application must be viewed and considered.

The evidence shows that the first appellant who is not part of this application was employed as the Human Resources Manager (HR), the first applicant was employed as an Accountant and the third applicant as an Assistant Accountant. The first appellant would prepare the payroll, then the first and second applicants would verify the correctness of the figures on the payroll. After confirming the correctness of the pay roll the first applicant would request payment from the Executive Chairman (Nare) to pay the wages. She would send the wage bill to Nare via the WhatsApp platform. Nare would authorise the taking of cash from the strong room to pay the wages. The first applicant was the custodian of the strong room keys where the cash was kept.

The witness Danisa Moyo (Operations Officer) checked wage bills and noticed that the net wages were correct but the total amounts drawn were wrong. He noticed for example that for the month of April 2021 in one department the total wage bill was ZAR 70 269 instead of ZAR 66 144, a variance of ZAR 4 154.50. He explained this anomaly to Nare who then directed him to seek the services of an auditor. Mr Maunganidze Hamandishe a qualified auditor testified at the trial. For the purposes of carrying out an audit he was given the pay roll on PDF. He requested Excel payrolls but these could not be found. He then converted PDF payrolls to Excel. The evidence of the Operations Officer was that the wage bill used to pay the workers was with the first appellant and the first applicant. They did not hand it over including the gadgets they were using. The auditors worked on the pay roll sent to Nare in PDF format. This explains the reason the auditor converted the wage bills from PDF format to Excel format. He did not edit the wage bills but merely made then editable.

The auditor noticed that the subtotals in PDF were inflated and said it was impossible for Nare to notice the variances as the figures were sent to him in PDF. The auditor testified and demonstrated how the variances were arrived at and came to the conclusion, based on figures that the complainant was prejudiced. The State placed documents to show the calculations in detail. The evidence of Mr Maunganidze Hamandishe was corroborated by an external auditor in all material respects. The external auditor after conducting a forensic audit showed that the complainant suffered prejudice in the sum of ZAR 122 718.50. A forensic audit report was placed before the trial court. This evidence and that of the investigating officer points to the culpability of the applicants.

A court does not look at the evidence implicating the accused in isolation to determine whether there is proof beyond reasonable doubt, so too does it not look at the exculpatory evidence in isolation to determine whether it is reasonably possible that it might be true.  It looks at the overall picture. All the evidence. The overall picture shows that the applicants would inflate the subtotals, pay the workers and not account for the differences. There is no evidence that the auditors worked on wrong wage bills. For the purposes of this application I take the view that the trial court could not be faulted in arriving at the conclusion it did. On the evidence on record I do not agree that the court of appeal could reasonably come to a different conclusion to that of the trial court. The applicants have not shown this court on proper grounds that they have prospects of success on appeal and that those prospects are not remote, but have a realistic chance of succeeding. There is no sound and rational basis for the conclusion that there are prospects of success on appeal.

A perusal of the record of proceedings establishes that the factual findings made by the trial court are insurmountable. It is very unlikely that they will be vacated on appeal. On the basis of the evidence on record, the factual findings made by the trial court and the application of the legal principles, the verdict of the trial court is unlikely to be vacated on appeal. The trial court took into account all evidence and factors surrounding the offence before convicting the applicants. There are therefore no reasonable prospects of success on appeal against conviction.

Sentence is a matter for the discretion of the court burdened with the task of imposing it. A court of appeal will be entitled to interfere with the sentence imposed by the trial court if the sentence is disturbingly inappropriate or out of proportion to the seriousness of the offence. My view is that the sentence imposed on the applicants does not fall into the category of disturbingly inappropriate or out of proportion to the seriousness of the offence. It is very unlikely to be vacated on appeal.

In my view, the applicants have a high probability of absconding considering that there are no reasonable prospects of success on appeal. The principle that the lesser the prospects of success the higher the risk of abscondment is applicable in this case. In S v Kilpin 1978 RLR 282 (A), it was pointed out that a court may well consider that the brighter the prospects of success, the lesser the likelihood of the applicant to abscond and vice versa. The applicants have experienced the rigours of imprisonment, and they still have some months to go before they complete their sentences. The remaining sentences are likely to cause them to abscond if released on bail pending appeal. They are a flight risk.

In the absence of reasonable prospects of success on appeal, the argument about the delay before the appeal can be heard recede to the background. It is important that those that have broken the law are seen to serve their punishments without any unnecessary delay. The confidence of the community in the administration of justice would be seriously eroded if persons convicted of crimes are seen to be roaming the streets where they have little prospects of their appeals succeeding. Therefore, the fact that they were sentenced to short terms of imprisonment, and that they may complete the sentences before their appeals are heard and determined is of no moment

Ultimately therefore, both applicants have failed to discharge the onus on them to establish that their admission to bail pending appeal is in the interests of justice.  In the circumstances of this case I am satisfied that it is not in the in interests of justice that applicant be released on bail pending appeal.

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

Masawi and Partners applicants’ legal practitioners

National Prosecuting Authority, respondent’s legal practitioners