We
convicted the applicants for murder with constructive intent on 12 June 2009
and sentenced them each to sixteen (16) years imprisonment. They applied for
leave to appeal and they were granted leave to appeal against conviction. They
have since filed their appeal against conviction only under SC18/10.
They
now seek admission to bail pending their appeal.
The
main factors that are taken into account in such applications for bail pending
appeal are -
(a)
The prospects of success on appeal, and
(b)
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 S v Kilpin 1978 RLR 282 (A) case, 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 murder with constructive intent and
therefore the presumption of innocence no longer operates in their favour. In
the S v Williams 1980 ZLR 466 (AD) case, 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 S v
Williams 1980 ZLR 466 (AD) case -
“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 other 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.” ….,.
The
applicants stand convicted of a very serious offence. Admittedly, the
applicants were granted leave to appeal, but this does not, per se, entitle
them to be admitted to bail. The onus of establishing that justice will not be
endangered and that there is a reasonable prospect of success is upon the
applicants. It is improper to allow people convicted of serious offences to
walk in the streets instead of serving their sentence when the prospects of
success are non-existent. Society would lose faith in the system of justice.
With a serious offence there will be a pronounced risk that the convicted
person will flee from justice if released, especially if he has no reasonable
prospects of success on appeal – S v Labuschagne 2003 (1) ZLR 644 (SC). This is
the case in casu, there were no reasonable prospects of success and the
applicants have been convicted of a very serious offence. They are not suitable
candidates for bail.
Accordingly, I dismiss their application for
bail pending appeal and they are refused bail.
