Sijabulile Sibanda v The State

### Preamble
1
HB 131/19
HCB 217/19
---------


SIJABULILE SIBANDA

Versus

THE STATE

IN THE HIGH COURT OF ZIMBABWE

MAKONESE J

BULAWAYO 9 & 29 AUGUST 2019

Application for bail pending appeal

V. Ndlovu for the applicant

K. Jaravaza for the respondent

MAKONESE J:	The applicant appeared before a Regional Magistrate at Bulawayo on the 15th of February 2019 on a charge of public violence in contravention of section 36(1) of the Criminal Law (Codification and Reform) Act (Chapter 9:23), in the alternative theft as defined in section (113)(1) of the Criminal Code.  Applicant was convicted on the alternative charge of theft and sentenced to 3 years imprisonment with one year suspended on the usual conditions of future good conduct.  Dissatisfied with the conviction and sentence the applicant noted an appeal against both conviction and sentence to this court.  The appeal is pending.

The applicant seeks his release on bail pending appeal. The state is opposed to the application.

Counsel for both the state and the defence correctly set out the requirements for an applicant to succeed in an application of this nature.  These are summarized as follows:

The likelihood of the applicant escaping

(b)	The right to individual liberty

(c)	The prospects of success

(d The potential delay before the appeal can be heard.

See: S v Dzawo 1998 (2) ZLR 536

Brief  background

The brief facts of the matter may be summarized as follows.  On the 15th January 2019, public disturbances rocked the major cities in Zimbabwe. There was widespread looting and destruction of property.  During this period dubbed “National Shutdown” there was widespread wanton destruction of  private property. The applicant was arrested in connection with destruction and theft of property which occurred at Glass Pack Investments, Gwabalanda in Bulawayo. The applicant was fingered in taking a leading role in the breaking and entering   into the supermarket where property was stolen and looted.  A report was made at Luveve Police Station. Investigations led to the arrest of the applicant. He denied any involvement in the looting  and theft of property at the supermarket. The Regional Magistrate found sufficient evidence to convict the applicant on the alternative charge of theft.  In his appeal, the applicant contends that the learned magistrate erred in convicting him when all the essential elements of theft had not been satisfied. In his response to the notice of appeal the magistrate indicated that the applicant was identified by witnesses at the scene of the offence.  Further the applicant was seen taking goods from the supermarket by eye witnesses.   As regards sentence, the learned magistrate points out that the sentence was appropriate and that all the mitigating features had been taken into consideration.

It is clear from a reading of the record that the applicant did not deny having been at the scene of the crime on the day in question. In his defence he argues that he only arrived at the scene after the violence had subsided. The applicant further argues that he had been falsely implicated by the applicant due to the bad blood between him and the complainant arising out of the failure by the complainant to pay him for installing CCTV cameras at the shop.

In order to determine the prospects of success in this matter, the issue of identification becomes central to this application.  S v Mthethwa 1972 (3) SA 766 AD at p 768 A.C. Holmes JA remarked thus:

“Because of the fallibility of human observation evidence of identification is approached by the courts with some caution.  It is not enough for the  identifying witness to be honest , the reliability of this observation must be tested , this depends on various factors such as lighting , visibility and the eyesight , the proximity of the witness, this opportunity for both the time and the situation ,the extent of this prior knowledge of the accused the mobility of the scene, corroboration…”  The list is not exhaustive.

In this matter, the witness who testified knew the applicant prior to the day of the incident.  In particular, the first witness received a call which mentioned the persons who were about to break to his shop. The complainant was also phoned when the applicant and his accomplices were breaking up into the shop. The applicant was properly identified by the witness who corroborated each other in mentioning that it was the applicant and the third accused who actually broke the security fence and allowed people to gain entry into the shop. The applicant participated in the looting that ensued. One witness Emmanuel Aliki observed the applicant as he smashed the lights outside the shop. This evidence was corroborated by Wilson Gambiza.

In Mupfumbiri v The State HH-64-13, HUNGWE J (as he then was) emphasized the importance of corroboration in the following manner;

“It is recognized that corroboration is regarded by many as a cornerstone of the criminal justice system. It is perceived to be an important check which helps to ensure so far as practicable that miscarriages of justice are kept at minimum”

For a conviction in a criminal case to be safe there must be at least one source of evidence that describes the commission of the crime and points to the accused as the perpetrator. This can be described as the primary source of the chain of evidence. An additional source of evidence such as the evidence of at least one or more witnesses which confirms the first source of evidence is usually essential. Corroboration by another witness is therefore essential to eliminate the risk of false incrimination.

In this matter, the applicant attacks the factual findings of the lower court. It is settled principle of our law that an appeal court will be slow to interfere with the findings of a lower court unless it is satisfied that the findings of fact are in fact wrong.  A perusal of the judgment of the learned Regional Magistrate shows that the court found the state witnesses to be credible.  The court articulated its factual findings in a well reasonable judgment.

It is my view that there are no reasonable prospects of success as regards conviction.  In so far as sentence is concerned, it trite that the appeal court will only interfere with the sentence imposed by a lower court where such sentence is manifestly excessive and induces a sense of shock.  See S v Ramushu SC-25-93.  It is a well established principle of our law that the appeal court will not ordinarily interfere with the sentence of the court a quo unless the sentence induces a sense of shock or is vitiated by some irregularity or misdirection.  In this matter what aggravates the matter is that the applicant appears to have played a leading role in the looting of complainant’s shop. I agree with counsel for the state there are no reasonable prospects of success against both conviction and sentence.

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

Mlweli Ndlovu & Associates, applicant’s legal practitioners

National Prosecuting Authority, respondent’s legal practitioners