IN
CHAMBERS
BHUNU
JA: This
is an appeal against refusal of bail pending appeal by the High Court
(the court a
quo).
The application is in terms of Rule 67 of the Supreme Court Rules,
2018 as read with section
121(2)(a) of the Criminal Procedure and Evidence Act [Chapter
9:07].
FACTUAL
BACKGROUND
The
appellant was employed by the Zimbabwe National Army under the
Presidential Guard Unit. He was arraigned before the Magistrates
Court together with two other accused persons facing a charge of
public violence as defined in section 36 of the Criminal Law
Codification and Reform Act [Chapter
9:23].
He
pleaded not guilty and thereafter trial ensued.
It
was the state's case that the appellant participated in the
violence and looting which occurred at Puma Service Station near
White House in Harare.
In
the state outline it was alleged that the appellant together with the
other accused persons intercepted a Zimbabwe United Passengers
Company (ZUPCO) bus which was on its way to the Central Business
District. Thereafter, they ordered all the passengers to disembark
from it. After the passengers had disembarked from the bus, they
burnt it. They proceeded to loot shops and pharmacies at the service
station where they stole a variety of tablets, a 12-volt car battery
and a blue Yamaha motor bike.
Police
raided the appellant's house where they found the motor bike and 17
containers of tablets. In his defence, he claimed that the tablets
belonged to his relative who suffered from mental illness as well as
HIV. With regards the motor bike, he claimed that he had purchased it
although he did not have an agreement of sale.
The
court a
quo
found that if it was true that the tablets belonged to his relative,
the appellant ought to have called them to testify.
It
also found that the appellant had claimed that there was an affidavit
which proved that he purchased the motor bike but he had not produced
it.
After
evidence was led the appellant was found guilty as charged.
He
was convicted and sentenced to sixty (60) months imprisonment with
twelve (12) months suspended on appropriate conditions.
Dissatisfied
by the decision of the Magistrates Court, the appellant noted an
appeal to the High Court. Pending the appeal, he applied for bail in
the High Court.
The
court a
quo
dismissed the bail application.
It
held that there was overwhelming evidence which proved that the
appellant had committed the offence thus proving that the intended
appeal did not have good prospects of success.
Irked
by the decision of the court a
quo,
the appellant has noted the present appeal.
ANALYSIS
OF THE FACTS AND THE LAW
This
Court's approach to matters of this nature was stated in
S
v Chikumbirike
1986 (2) ZLR 145 (SC) at 146F-G where BECK JA said the following:
“The
next matter to be decided is whether this Court in hearing the appeal
should treat it as an appeal in the wide sense, that is to say, that
it is to be treated as if it were a hearing de
novo.
Once again that matter has been decided by the case of The
State v Mohamed
1977 (2) SA 531 at 542B-C where TROLLIP JA said that in an appeal of
this nature the court of appeal will only interfere if the court a
quo
committed an irregularity or misdirection or exercised its discretion
so unreasonably or improperly as to vitiate its decision.”
The
same point was subsequently made by this Court in
Aitken
& Anor v Attorney-General
1992 (1) ZLR 249 (S) at
252E-F as follows:
“While
the Judge President, in considering the appeal was at liberty to
substitute his discretion for that of the magistrate on the facts
placed before the latter, the present appeal is one in the narrow
sense. The powers of this Court are, therefore, largely limited. In
the absence of an irregularity or misdirection this Court has to be
persuaded that the manner in which the Judge President exercised his
discretion was so unreasonable as to vitiate the decision reached”.
See
State
v Barber
1979 (4) SA 218 (D) at 220E-G; State
v Chikumbirike
1986 (2) ZLR 145 (S) 146F-G.
The
principle is therefore well established.
It
follows that in the present appeal, for the decision of the learned
judge to be reversed, it must be shown that the learned judge
committed an irregularity or misdirection, or that the manner in
which he exercised his discretion was so unreasonable as to vitiate
the decision made.”
Both
in the court a
quo
and before this Court, the appellant makes the argument that since
his co-accused was granted bail it follows that he too ought to be
granted bail.
The
court a
quo
correctly noted that the circumstances of the appellant and his co
accused are different. Evidence was led to establish that the
appellant was at the scene of the public violence. He was found in
possession of stolen goods, that is the motor bike and the tablets.
In
determining whether the appellant was entitled to bail it was
necessary to determine his prospects of success in the main case.
In
the case of Essop
v S
(2016) ZASCA 114,
the court in defining the term 'prospects of success' held that;
“What
the test for reasonable prospects of success postulates is a
dispassionate decision, based on the facts and the law that a court
of appeal could reasonably conclude different to that of the trial
court.
In
order to succeed, therefore, the appellant must convince this court
on proper grounds that he has prospects of success on appeal and that
those prospects are not remote, but have a realistic chance of
succeeding.
More
is required to be established than that there is a mere possibility
of success, that the case is arguable on appeal or that the case
cannot be categorised as hopeless.
There
must, in other words, be a sound, rational basis for the conclusion
that there are prospects of success on appeal.”
In
casu
there is overwhelming evidence against the appellant.
As
a result, the prospects of success of his appeal against conviction
are slim. The appellant makes the argument that he was an innocent
purchaser of the motor bike. Even if the court was to accept that he
was an innocent purchaser he failed to account for the seventeen (17)
containers of tablets found in his room.
When
the appeal against refusal of bail was being heard, the appellant was
asked where he got the tablets from. He said that he purchased them
from the pharmacy for his uncle. When asked where the prescriptions
for purchasing the tablets were, he replied that they were at home.
He however failed to proffer any evidence that the tables belonged to
his uncle.
The
appeal against sentence also does not have good prospects of success.
The
appellant was employed by the Zimbabwe National Army under the
Presidential Guard Unit. These are the people whom the public look up
to for peace keeping instead of inciting public violence.
Consequently,
it cannot be said that the court a
quo
misdirected itself when it dismissed the appellant's application
for bail pending appeal.
The
principle that the lesser the prospects of success the higher the
risk of abscondment is applicable in this case.
In
S
v Kilpin
1978 RLR 282 (A),
it was pointed out that a court may well consider that the brighter
the prospects of success, the lesser the likelihood of the applicant
to abscond and vice versa.
I
fully associate myself with the above reasoning.
The
applicant is serving a lengthy sentence and if granted bail might
abscond. Due to the gravity of the offence, I find that the appellant
might abscond if admitted to bail pending appeal.
In
the absence of any misdirection by the court a
quo,
this appeal cannot succeed. In the result, it is ordered that:
'The
appeal be and is hereby dismissed with no order as to costs.'
Attorney-General's
Office,
respondent's legal practitioners
