Trust Guhwa AND Raymond Guhwa V THE State

### Preamble
1
HH 414-13
B 922/13
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TRUST GUHWA

and

RAYMOND GUHWA

versus

THE STATE

IN THE HIGH COURT OF ZIMBABWE

TAGU J

HARARE, 8 November 2013

Application For Bail Pending Appeal

Machaya D,for the applicants

Fero S, for the respondent

TAGU J:  This is an application for bail pending appeal against conviction and sentence. The background of this matter is that appellants were charged with one count of robbery in contravention of s 126 of the Criminal Law (Codification And Reform) Act [Cap 9.23]. It was alleged that on 11 August 2013 at Guhwa village chief Chinamhora, the applicants by use of violence took US$352.00, a nokia cellphone and two packets of yeast from Artson Kambanje. Nothing was recovered.

They pleaded not guilty but were however, convicted and sentenced to 7 years imprisonment of which 2 years imprisonment was suspended for 5 years on the usual conditions. They have since filed their appeal against conviction and sentence under CA 1133/13. They now seek admission to bail pending their appeal.

They have argued that there are good and sufficient reasons for their success on appeal since it was only appellant 2 who pleaded guilty to assaulting the complainant and that the appellant 1 only came later to the scene when he heard some noise.

Upon perusal of the record it became clear and undisputed that the parties have known each other for a long period of about 25 years and are related. Although the attack on complainant took place at night and that he was drank, there is no issue of mistaken identities.

The main factors that are taken into account in such applications for bail pending appeal are:

The prospects of success on appeal, and

The interests of justice i.e. will the admission of applicants to bail not jeopardize the interests of justice through abscondment –S v Hudson 1999 (2) SACR 431; S v Williams 1980 ZLR 466 (AD);   S v  Kilpin 1978 RLR 282 (A) and S v Manyange 2003 (1) ZLR 21 (H).

In the Kilpin case supra, the court pointed out that the principles governing the granting of bail after conviction were different to those governing the granting of bail before conviction. On the one hand, where the person has not yet been convicted he is still presumed innocent and the courts will lean in favour of granting him/her liberty before he/she is tried. On the other hand, where he/she has already been convicted the presumption of innocence falls away.

In casu, the applicants were convicted of robbery and therefore the presumption of innocence no longer operates in their favour. In the Williams case supra, it was held that even after conviction the court should lean in favour of liberty if this would not endanger the interests of the administration of justice. The prospects of success on appeal should be balanced against the interests of the administration of justice. The less the chance of success on appeal, the greater the chance there is of the convicted person absconding. Even if the court finds that indeed there are prospects of success on appeal against conviction, still that finding does not necessarily entitle the applicants to bail. It was pointed out in the Williams case, supra:

“But it was putting it too highly to say that bail should only be granted where there was a reasonable prospect of the appeal succeeding. On the one hand, in serious cases even where there was a reasonable prospect of success on appeal bail should sometimes be refused, notwithstanding that there is little danger of the convicted person absconding”. (Emphasis added)

In this case the issue taken on appeal is primarily one of facts, i.e. whether appellant 2 merely assaulted the complainant and appellant 1 came after hearing the noise. During the trial it was found that both appellant participated in the assaults and one searched complainant of his property that was never recovered. Such a factual finding cannot easily be overturned by the appeal court –Hughes v Graniteside Holdings (Pvt) Ltd SC-13-84 and S v Isolano 1985 (1) ZLR 62 (SC) at 63C-G.

The applicants stand convicted of a serious offence. With a serious offence there will be a pronounced risk that the convicted person will flee from justice if released, especially if they have no reasonable prospects of success on appeal.

I am of the considered view that the appellants’ chances of success on appeal are indeed nil and as such they should be denied bail.

Accordingly, this application is dismissed.

Machaya and Associates, applicants’ legal practitioners

Criminal Division, Attorney General’s Office, respondent’s legal practitioners