Raymond Chimonera and Kwanele Ndlovu v The State

### Preamble
1
HB 54/21
HCB 366/20
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RAYMOND CHIMONERA

And

KWANELE NDLOVU

Versus

THE STATE

IN THE HIGH COURT OF ZIMBABWE

DUBE-BANDA J

BULAWAYO 19, 22 MARCH 2021 & 25 MARCH APRIL 2021

Application for bail pending appeal

N. Sithole, for the applicant

K. Ndlovu, for the respondent

DUBE-BANDA J: This is an application for bail pending appeal. The applicants, including one other individual who is not part of these proceedings, were arraigned before the court of the Magistrate on a charge of theft as defined in section 113 (1) (a) of the Criminal Law (Codification and Reform) Act [Chapter 9:23]. After a contested trial, the three were found guilty as charged. First applicant was sentenced to forty months imprisonment, six months suspended on the usual conditions and a further twelve suspended on condition of restitution. He remained with an effective prison term of twenty-two months. Second applicant was sentenced to fifty-four months imprisonment, twelve months suspended on condition of restitution. Forty two months effective.

Aggrieved by both conviction and sentence, applicants noted an appeal to this court and such appeal is still pending under cover of case number HCA 68/20. Applicants now seeks to be admitted to bail pending the finalisation of such appeal. The conviction is attacked on six grounds and the sentence on one ground which are all set-out in the notice of appeal. In support of the application, applicants contend that they have good prospects of success on appeal against conviction and sentence. In the main, it is argued that the prosecution did not prove its case beyond a reasonable doubt; in that the witnesses provided conflicting and contradicting evidence; and that applicants’ version was rejected without it being shown to be false beyond a reasonable doubt.

This application is not opposed. Respondent concedes that there are prospects of success on appeal. In its written submissions filed with this court, respondent avers that: applicants proffered an explanation with regards to their possession of the cell phone handsets which were the subject of the charge; the state did not rebut the explanation and show that it was false beyond a reasonable doubt; and that applicants have reasonable prospects of success on appeal and therefore good candidates for bail pending appeal.

Section 123 (1) (b) (ii) of the Criminal Procedure and Evidence Act [Chapter 9:07] (CPEA), empowers this court to admit a convicted person to bail pending appeal. The main factors to consider in an application for bail brought by a person convicted are twofold. The first is the likelihood of the applicant’s absconding. The second is the applicant’s prospects of success on appeal in respect of both conviction and sentence. See: S v Williams 1980 ZLR 466 (A) at 468 G-H; S v Mutasa 1988 (2) ZLR 4 (S) at 8D; S v Woods SC 60/93 at 3-4; S v McGowan 1995 (2) ZLR 81 (S) at 83 E-H and 85 C-E. Other factors to be taken into consideration are the right of the individual to liberty and the possibility of a lengthy delay before the appeal can be heard. See: Mungwira v S HH 216/10. See: Gaillah Muroyi v The State (supra); Milton Gomana v The State SC 166/20. In Robert Martin Gumbura v The State SC 78/14, the court said the test to be applied in this regard is relatively uncomplicated: Is the appeal “reasonably arguable and not manifestly doomed to failure”?

Section 115C (2) (b) of the CPEA says where an accused person who is in custody in respect of an offence applies to be admitted to bail after he or she has been convicted of the offence, he or she shall bear the burden of showing, on a balance of probabilities, that it is in the interests of justice for him or her to be released on bail. This legislative provision shifts the onus on an applicant for bail pending appeal. According to the authorities, one speaks of the need to discharge an onus, it immediately becomes clear that there is an evidentiary burden that must be met. See: (1) Jennifer Nan Brooker vs Richard Mudhanda and The Registrar of Deeds (2) Adrienne Staley Pierce vs Richard Mudhanda and The Registrar of Deeds SC 5/18; Vincent Kondo and Edmore Marwizi Mapuranga v The State HH 99-17. Such burden cannot be discharged by submissions contained in a bail statement. There must be evidence placed before court. Applicant must adduce evidence. The evidence must show that it is in the interests of justice that he be admitted to bail pending appeal.  In such an application, an applicant may place evidence before court by way of an affidavit. This is permissible in bail applications. See: Moekazi v Additional Magistrate, Welkom 1990 (2) SACR 212 (O).

In casu, this application was filed on the 8 December 2020. No affidavit of evidence was filed in support of the application. At the hearing of this matter, I asked Mr Sithole, applicants’ counsel, whether an onus can be discharged by bold statements contained in a bail statement. Mr Sithole told the court that the failure to file an affidavit in this application was caused by his failure to access applicants who are lodged at Khami Prison. He contended that during Covid 19 induced lockdown, prison authorities barred outsiders from accessing prison. This was to protect the prison community, including inmates from Covid 19 infections. Now that the lockdown restrictions have been relaxed, he then asked that this matter be stood down, to enable him to secure affidavits from the two applicants. Mr Ndlovu, counsel for the respondent, submitted that, on the facts of this case, it would be in the interest of justice to have this matter stood down, to enable Mr Sithole to secure such affidavits. I agreed. I then stood down the matter to give Mr. Sithole time to file affidavits in support of the application. The affidavits were then filed on the 22 March 2021.

In considering this application, the question is: is the appeal reasonably arguable and not manifestly doomed to failure, or put differently, does the appeal have prospects of success? Applicants were charged with section 113 (1) (a) of the Criminal Law (Codification and Reform) Act [Chapter 9:23], which says any person who takes property capable of being stolen knowing that another person is entitled to own, possess or control the property or realising that there is a real risk or possibility that another person may be so entitled; shall be guilty of theft. There is no direct evidence against the applicants.  There is circumstantial evidence, which authorities describe as evidence of the surrounding facts from which a court may, within certain parameters, infer the guilt of the accused person in respect of the offence charged.

First applicant was implicated in the commission of the offence by the complainant. He was found in possession of some of the stolen cell phone handsets. His version is that he got the phones from a third party. His defence is that he was selling the cell phone handsets on behalf of this third party. He was putting a mark-up of his own. The court a quo was not impressed by his version, which had some inconstancies, e.g. he was sort of vacilitating about the number of phones he got from this third party.  Again, there is evidence which suggests that first applicant might have made an admission to the complainant. In its judgment the court a quo did not comment on weight, if any of the admission allegedly made to the complainant. It might well be because the court did not attach any weight to such evidence, this might be for the appeal court to decide. Not this court seized with a bail application pending appeal. I take the view that, it is possible that the appeal court might well find that first applicant’s version about the involvement of a third party has not been shown to be false beyond a reasonable doubt. My view is that the first applicant’s appeal is reasonably arguable and not manifestly doomed to failure or put differently, the appeal has prospects of success.

Second applicant’s version is that, him and the other person who was convicted and not part of these proceedings got the cell phone handsets from the first applicant. In his version, first applicant admits, in his evidence that indeed he gave these two the handsets to sell on his behalf. On the facts of this case, this applicant has prospects of success on appeal. I take the view that, in respect of both applicants, the concession made by the respondent was properly taken. I agree with it.

Disposition

In conclusion, I take the view that applicants have discharged the burden of showing, on a balance of probabilities, that it is in the interests of justice that they be released on bail. In the result, I order as follows:

First applicant (Raymond Chinomera) and second applicants (Kwanele Ndlovu) are and hereby admitted to bail pending the finalisation of the appeal pending before this court under cover of case number HCA 68/20.

Each applicant pay a bail deposit in the sum of RTGS20 000.00 with the Deputy Registrar of the High Court, Bulawayo.

First applicant reports at Cowdray Park Police Station every Monday and Friday between 06:00 hours and 18:00 hours until the finalisation of the appeal in HCA 68/20.

Second applicant reports at Mzilikazi Police Station every Monday and Friday between 06:00 hours and 18:00 hours until the finalisation of the appeal in HCA 68/20.

First applicant resides at house number 5575 Cowdray Park, Bulawayo until the finalisation of the appeal in HCA 68/20.

Second applicant to reside at number 2269 11th Street Makokoba, Bulawayo until the finalisation of the appeal in HCA 68/20.

Ncube Attorneys applicant’s legal practitioners

National Prosecuting Authority, respondent’s legal practitioners