Kudakwashe Mukuvari v The State

### Preamble
1
HB 245/22
HCB 237/22
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KUDAKWASHE MUKUVARI

Versus

THE STATE

IN THE HIGH COURT OF ZIMBABWE

MOYO J

BULAWAYO 20 JULY AND 29 SEPTEMBER 2022

Bail Application

A. Mbeure, for the applicant

K. Guvheya, for the respondent

MOYO J: 	This is an application for bail pending appeal.  I heard this application on 20 July 2022 and I dismissed it ex tempore.  Applicant has requested for written reasons.  Here are they:-

The appellant was convicted of stocktheft by the Magistrate sitting at Hwange on the 6th of May 2022.  The court having not found any special circumstances sentenced him to 9 years imprisonment.  Dissatisfied with both conviction and sentence he lodged an appeal to the High Court under HCA 57/22.  He now seeks bail pending that appeal.

The grounds of appeal are that the court a quo misdirected itself in rejecting the appellant’s defence, and in concluding that the state indeed proved its case against the appellant beyond a reasonable doubt.

The facts of the matter are that applicant and others were arrested on the 8th of December 2021 at around 0300 hours carrying 2 skinned carcasses of cows.  Applicant drove the motor vehicle which was used to ferry the beasts and he was subsequently arrested after villagers gave chase to his motor vehicle and caught up with them.  2 heads were later recovered in a bush together with wire snares as well as an axe and a knife.

Applicant was accused 2 in the court a quo.  The applicant owns a butchery.  The applicant’s defence was mainly that he innocently bought the beasts as a Constable Mutasa whom he trusted and had dealt with for a long time, initiated the transaction.  The trial court found that it was common cause that the accused persons were in possession of 2 carcasses, 7 hooves and 2 tails.  The trial court also found that it was also common cause that the accused persons did not have any document in the form of police clearances and other permits.  That the accused persons were in the possession of these carcasses in the middle of the night in the company of one Mutasa who then fled the scene.

At the centre of a determination on whether an applicant should be granted bail pending appeal, are the prospects of success on appeal.  The applicant has already appeared before a competent court, which has already pronounced itself on the issues pertaining to the matter and has found against the appellant, convicting him and subsequently sentencing him.  For this court to be persuaded that the applicant must be released and wait for the determination of this appeal while out of custody there must be reasonable prospects of success on appeal.  In other words there must be a glaring misdirection on the part of the court a quo, which makes it more probable that an upper court might interfere with the findings of the lower court.

In this case, there is seemingly no glaring misdirection on the part of the lower court.  The totality of the facts and circumstances that prevailed in the trial court, do not point to an obvious or glaring misdirection on its part for me to make a finding that therefore there are reasonable prospects of success on appeal.  The court a quo carefully assessed the facts and the evidence that was before it. It assessed accused 2’s evidence (who is the current applicant) at page 22 of the bound record wherein the learned Magistrate stated thus:-

“Accused 2 is a regular buyer of cattle in the area and it is rather unreasonable that on a police officer’s instructions he dropped everything to go and pick up 2 beasts without heads and offals in the dead of a night from a bushy area.  I further find it unreasonable that he did not care to gather proper documentation before collecting the said cattle and transporting them lawfully.”

The learned Magistrate carefully assessed applicant’s defence and then threw it out.  I accordingly found no reasonable prospects of success on the appeal filed by the applicant and I accordingly refused to grant him bail pending appeal.

Messrs Majoko and Majoko, applicant’s legal practitioners

National Prosecuting Authority, respondent’s legal practitioners