Cazwell Machisa v The State

1
                                                                                   HH 206/21
                                                                                   B 1851/19
                                                                             REF CA 778/19
                                                                            REF CON 319/19
                                                                           REF CRB 1310/15


CAZWELL MACHISA
versus
THE STATE


HIGH COURT OF ZIMBABWE
CHITAPI J
HARARE, 4 December 2020 & 21 April 2021


Bail Pending Appeal


Applicant in person
F. I. Nyahunzvi, for the respondent


       CHITAPI J: The applicant has made numerous applications in pursuit of bail pending
appeal. The record shows he filed an application for bail pending the determination of an
application for leave to appeal out of time which was pending under case number CON
319/19. That application was filed on 7 November 2019. The applicant filed a supplementary
bail statement on 9 December 2019. The application was removed from roll by NDEWERE J
on 14 November 2019. The reason for the removal of the application from the roll was that
the applicant was required to first obtain leave to appeal out of time before he could properly
apply for bail pending appeal. A convict who has no pending appeal and who has not been
granted condonation or leave to note appeal out of time has no basis to apply for bail pending
appeal because there would be no appeal pending. The provisions of the Criminal Procedure
& Evidence Act, [Chapter 9:07] particularly s 123 does not provide for the making of an
application for bail pending the determination of condonation of late noting application which
is aptly called application for leave to appeal out of time.

       The applicant obtained leave to appeal out of time and noted his appeal under case
number CA 778/19. The appeal is pending determination before the appeal court. He then re-
enrolled his application for bail for determination. Mr Nyahunzvi for the respondent filed a
response in which he opposed the admission of the applicant to bail pending appeal. Counsel
submitted on the authorities of S v Dzawo 1998 (1) ZLR 53 and S v Ndlovu & Anor HB
                                                                                             2
                                                                                     HH 206/21
                                                                                     B 1851/19
                                                                               REF CA 778/19
                                                                              REF CON 319/19
                                                                             REF CRB 1310/15


10/15 that bail pending appeal may be granted where the proposed appeal has prospects of
success, is reasonably arguable and is not doomed to predictable failure with these factors
being considered together with the risk of abscondment.

       It is opportune to give the background to the case. The applicant was convicted of two
counts of stock theft as defined in s 114(2)(a) of the Criminal Law (Codification and Reform)
Act, [Chapter 9:23] by the magistrate sitting at Karoi on 3 February 2016. The applicant was
charged with a co-accused namely Innocent Mugariwa who was second accused and the
applicant the first accused. Innocent Mugariwa was acquitted on the charge. It was alleged
that the accused stole bovines belonging to two different complainants from the communal
grazing area. The evidence against the applicant at trial was overwhelming as found by the
magistrate, and I daresay, the finding of overwhelming evidence is supportable upon a
reading of the record of proceedings and the trial courts’ judgment.

       There was credible evidence led from the two complainants who testified to having
released their cattle into the communal grazing land and missing them. There was evidence of
a witness whom the applicant hired to assist to drive the cattle and he assisted in tying the
bovines to trees. The complainants identified their bovines. The trial court’s finding rejecting
the applicants’ explanation that he believed that the bovines belonged to his brother is well
supported. The trial magistrate noted that when the applicant tied the bovines to a tree, there
was no attempt made by the applicant to find the brother. There was evidence that the
applicant requested for transport to ferry the bovines to the cattle market and was acting in his
personal stead and not on behalf of his brother the alleged owner of the bovines.

       In the bail response by Mr Nyahunzvi, counsel noted that although the appeal against
conviction did not enjoy prospects of success, the appeal against sentence was reasonably
arguable because although the imposition of 9 years imprisonment per count, after a finding
of no special circumstances was proper, the overall sentence of 18 years imprisonment was
too harsh and could have been ameliorated by making the sentences run concurrently since
the applicant committed a single act of theft albeit it turned out that the two bovines belonged
to different complainants. I found the concession to be merited. I however noted that even if
the sentences were to run concurrently, the applicant had to serve at least 9 years because
                                                                                              3
                                                                                      HH 206/21
                                                                                      B 1851/19
                                                                                REF CA 778/19
                                                                               REF CON 319/19
                                                                              REF CRB 1310/15


these, were mandatory sentences. I reasoned that the applicants’ plea for bail could have sat
on firmer ground had he served at least 9 years for one count. I dismissed the application for
bail. I indicated in my ruling that the applicant may well have been granted bail had he served
at least 9 years since even the order that the sentences be concurrent would still result in the
applicant serving 9 years. I delivered my decision on 14 January 2020.

       No sooner had I delivered the ruling that the appellant, four days later, on 17 January
2020 filed another bail application citing a change in circumstances. The grounds of the
application which the applicant submitted were that he wanted the court to know that the
applicant would have served 9 years imprisonment on 5 February 2022. The state counsel Mr
Nyahunzvi correctly submitted that the issue of the date of the release of the applicant being
pleaded as a changed circumstance was not knew because the information was available but
not presented to the court. It was not surprising then that on 8 January 2020, TSANGA J
dismissed the application and endorsed that there were no changed circumstances warranting
a review of my determination of 14 January 2020.

       On 22 July 2020, the applicant filed yet another application based on changed
circumstances. His main argument was that since the judge who granted him condonation of
late noting of appeal must have been satisfied that the intended appeal had prospects of
success, the bail court judge was wrong to hold that there were no prospects of success. He
also submitted that there was a likelihood of the appeal hearing being delayed because he had
not been called yet to argue his appeal. He also indicated that he had appealed to the Supreme
Court against the refusal to grant him bail and required a full judgment for the Supreme Court
to accept his appeal. On 25 August 2020, I dismissed the changed circumstance application
and made the following endorsement:

       “No changed circumstances. The fact that the appeal is yet to be set down would not amount
       to a change in circumstances as envisaged in proviso (ii) to s 123 of Criminal Procedure &
       Evidence Act in the absence of the applicant showing positive steps made to ensure an early
       hearing of appeal like for example applying for an order that hearing of his appeal is done
       urgently giving reasons for seeking such order.”
       On 22 October 2020, the applicant filed yet another application for bail based on
changed circumstances. This time, the applicant averred that the court a quo erred to convict
                                                                                               4
                                                                                       HH 206/21
                                                                                       B 1851/19
                                                                                REF CA 778/19
                                                                               REF CON 319/19
                                                                              REF CRB 1310/15


him and also passed a harsh penalty yet the applicant was a juvenile first offender who gave
an explanation in denying that he stole the two bovines. He also submitted that he was denied
his constitutional right to legal representation. He also submitted that he would not abscond
because he would stay with both his parents.

       On 12 January 2021, I dismissed the application and endorsed that:

       “application is an abuse of court process because a finding has already been made that there
       are no prospects of success on appeal. The High Court has spoken on this and the finding
       based on the same record of proceedings will not change. Applicant if advised should appeal
       this decision or make application for an early appeal set down.”
       This constitutes the fully dressed judgment which applicant requested for.




National Prosecuting Authority, respondent’s legal practitioners