Richard Kwenda and Rushumela Bugashane v The State

### Preamble
HH-37-2010
B141-2/10
RICHARD KWENDA
and
RUSHUMELA BUGASHANE
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RICHARD KWENDA
and
RUSHUMELA BUGASHANE
versus
THE STATE

HIGH COURT OF ZIMBABWE
MAKARAU JP
Harare 15 and 16 February 2010.

BAIL APPLICATION

Mr N Mushangwe for applicants
Mr A Masamha for respondent.

MAKARAU JP: The applicants were arraigned before the magistrates’ court facing one count of contravening section 134 of the Criminal Law Codification and Reform Act [chapter 9.23], extortion. It was alleged that on 6 February 2009, they unlawfully obtained a vehicle from the complainant by threatening that he would be detained in police cells if the applicants were not paid the sum of $4 000-00. Both applicants denied the charge but were convicted after trial. They were each sentenced to five years imprisonment with one year suspended for five years on condition of future good behaviour. Dissatisfied with both the conviction and the sentence, the applicants noted an appeal to this court.

They also applied for bail pending appeal.

The factors that a court has to take into account in determining an application for bail pending appeal have been well debated in this jurisdiction. In such applications I have invariably sought for and found comfortable guidance in the remarks by BARON JA in *The State v Tengende and Others* 1981 ZLR 445. I am aware that there have been other more recent judgments from the Supreme Court pronouncing on the same subject but in my view, the clarity of the position at law as put in that judgment is quite appealing.


In that judgment the learned judge clearly brought out the distinction between considerations that should weigh with the court in an application for bail pending appeal and an application for bail pending trial. This is what he had to say:

“This submission loses sight of the essential difference between bail pending trial and bail pending appeal. In either case bail is a matter for the discretion of the court, but bail pending trial will not normally be refused on charges of this nature unless there are positive reasons for refusal, such as the danger of the accused absconding or of interference with witnesses. But bail pending appeal involves a new and important factor; the applicant has been found guilty and sentenced to imprisonment. Bail is not a right. An applicant for bail asks the court to exercise its discretion in his favour and it is for him to satisfy the court that there are grounds for so doing. In the case of bail pending appeal the position is not, even as a matter of practice, that bail will be granted in the absence of positive grounds for refusal, the proper approach is that in the absence of positive grounds for granting bail it will be refused. This is not to say that an applicant for bail pending appeal has any heavy onus to discharge; as HENOCHSBERG, J, said in R v Mthembu, 1961 (3) SA 468 (D & CLD) at 471, “if justice is not endangered, the court favours liberty, more particularly where there is a reasonable prospect of success”. But it is nevertheless important not to lose sight of the fact that the exercise of the court’s discretion involves balancing the considerations of the liberty of the individual and the proper administration of justice, and that where the applicant has been tried and sentenced it is for him to tip the balance in his favour.”

In conclusion the learned judge took the approach that it is not the consideration of any particular factor that should weigh with the court in considering such an application. Rather, the question to be answered at the end of the inquiry is whether the applicants have shown that the court’s discretion should be exercised in their favour, taking all the factors into account.

In casu, I have been urged to exercise my discretion in favour of the applicants. In doing so, it was pressed upon me by Mr Mushangwe that the trial magistrate misdirected herself in accepting the State evidence at the expense of the evidence adduced by the applicants. In particular, Mr Mushangwe argued that there was insufficient evidence on record upon which a guilty verdict could be returned.

I am afraid I do not agree with him in this regard. My reading of the record is that the evidence before the trial court was cogent and any other verdict would have been a miscarriage of justice.

Mr Masamha for the respondent did not oppose the application. In his written response, he had some misgivings on the evidence led by the State in the matter and was of the view that upon revisiting by a superior court, the findings by the trial court that an offence had been proven before her could be interfered with. Not being quite satisfied as to the basis upon which the concession by the respondent had been made, I requested additional submissions from *Mr Masamha*. I am afraid I am still not convinced that the concession by the respondent was properly made.

*Mr Masamha* has made heavy weather of the fact that some three persons who may have added weight to the State case were not called to testify in addition to the three witnesses who testified in the matter.

It is correct that the evidence of these three witnesses may have added weight to the State case. But, the state case was already cogent without such evidence and their being called would have served to simply repeat the evidence that was before the court. The absence of such additional witnesses in the witness stand can hardly be a misdirection on the part of the trial court.

*Mr Masamha* also made the startling submission that the testimony of the first two State witnesses needed to be corroborated as they had an interest in the matter. One would assume that all complainants have an interest in the matters where they testify otherwise they would not be complainants or witnesses in this first place. To then suggest that the testimony of each complainant must be corroborated is not only without precedent but goes against the clear provision at law that the testimony of any one witness shall be sufficient to ground a conviction.

He then referred to what he termed “grey areas” that surround this case without further elaborating what effect these “grey areas” had on the soundness or otherwise of the conviction of the applicants and the sentence resultantly imposed upon them.

It appears to me that every trial, no matter how meticulous the presiding officer is, will have in attendance one or more features that could have been done differently by another presiding officer. This is why the exercise of discretion by the presiding officer is protected in the absence of a misdirection that vitiates the proceedings. Again as was aptly observed by Blackie J in *S v Gono* 2000 (2) ZLR 63 (HC), it is not every misdirection that will entitle an appeal court to interfere with the decision of the trial court. Only an improper or unreasonable exercise of discretion will be considered as a misdirection that calls for the appeal court to exercise fresh discretion in the matter.

I am not persuaded that the trial court erred at all in the matter of the ‘grey’ areas or in its assessment of the cogency of the evidence that was adduced before it.


Both counsel submitted that the trial court did not properly exercise its discretion in assessing sentence in this matter and that the noting of an appeal against sentence should weigh with me in considering this application. I agree that the noting of an appeal against sentence is a factor that should weigh with me as generally speaking, the noting of an appeal against sentence offers a wide scope for a different opinion. (See S v Dzaw 1998 (1) ZLR 536 (S)).

My dilemma in this matter is two fold. Firstly I do not find any instance in which the trial court improperly or unreasonably exercised its discretion in assessing the sentence. It is not adequate that I find I may have imposed a different sentence in the matter. My attention must be drawn to a misdirection by the sentencing court. It was not. To the contrary, I find that the trial magistrate was alive to the fact that she was dealing with first offenders who ordinarily should have been sentenced to a non –custodial sentence but for the aggravating features of the case that she highlighted in detail. Even if it were to be established that the trial court erred in some other respect which does not immediately present itself to me, in my view a custodial sentence would have been the appropriate sentence in this matter.

Secondly, while both counsel submitted that the sentence imposed by the trial court was severe and induced a sense of shock, they did not refer me to any authority where in similar circumstances, a less harsh sentence was imposed. My own limited research has not been able to yield any such. In view of the fact that this is a bail application in which I must hand down my judgment without delay, I have decided not to delay any further whilst carrying out research on this issue.

Finally, Mr Mushangwe made the valid point that where the Attorney –General has made a concession, his opinion in the matter should command respect. Indeed the opinion of the Attorney- General commands the respect of this court as it is invariably well put and founded. It is invariably based on established legal principles that underpin the criminal law of this country and is based on detailed research that the court does not have time to carry out on its own. It is invariably balanced and where necessary, draws the attention of the court to authorities that may be adverse to the final position adopted by the respondent. It is invariably reliable as a statement of the position at law of the issue in dispute.
 In casu, I find the opinion of the Attorney-General lacking in one or more of the above respects. It is not of the standard that is usually extended to this court. I am of the view that the concession made in this matter was not properly made.

In the result, I make the following order:

The application for bail pending appeal is dismissed.

Mushangwe & Company, applicants’ legal practitioners.
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