MATHONSI J: The
three applicants were convicted of 1 count of stocktheft as defined in section
114 of the Criminal Law Codification and Reform Act, [Chapter 9:23] by the
Magistrates court in Kwekwe on the 18th May 2009. They were treated as first offenders for
purposes of sentence and then sentenced to 14 years imprisonment of which 4
years imprisonment was suspended for 5 years on condition that they do not
within that period commit any offence involving stocktheft for which they are
sentenced to imprisonment without the option of a fine. A further 1 year imprisonment was suspended
on condition that they make full restitution to the complainant in the sum of
US$235-00.
The case against the Applicants is
that they stole two oxen and one cow, the property of
Sanders
Mashoko around March 2009. The beasts
were driven to Naseby Estate Farm Chicago for safekeeping. One ox was later sold to Lucky Mpunzi while
still at that farm who arranged for it to be driven to Zimbeef Abattoirs for
slaughter. It was intercepted by the
police at the abattoir. The other two
animals were removed from Naseby Estate Farm but were also intercepted by an
employee of the owner as they were being driven towards Kwekwe River.
The first Applicant is a police
sergeant who at the time of the alleged commission of the offence was based at
Redcliff police station. He had been a
police officer for 6 years. The second
Applicant is a member of the neighbourhood watch force attached to Zimbabwe
Republic Police Redcliff while the third Applicant is an unemployed friend of
the other Applicants.
The evidence led in court clearly
links all the three Applicants to the commission of the offence. State witness No. 4 Clennia Sibanda who is
actually related to the second and third Applicants testified that all three
Applicants brought the three beasts to her home at Naseby Estate Farm Chicago
for safekeeping. She went on to say that
after a while, all three Applicants returned to her place in the company of a
buyer, one Lucky Mpunzi and negotiated a sale before one ox was driven
away. On a later date, the third
Applicant returned with someone else and drove the remaining beasts away.
The evidence also shows that the
national identity card belonging to one Clayton Hutama Basera was used in
clearing the ox that was sold to Lucky Mpunzi and, while the Applicants claimed
in their defence that the said Basera was the owner of the animals, that
gentleman
was traced to Gwanda where he was employed and testified in court that he did
not know the Applicants, had no business with the cattle in question and that
his identity card had been lost sometime in 2007 in Redcliff when he was a student
at Midlands State University.
The evidence of Mhondiwa Chitima, a
police officer who cleared the ox at Zimbabwe Republic Police, Kwekwe Central,
although rejected by the trial magistrate owing to the inconsistencies therein,
was, to a large extent corroborated in material respects by the first and
second Applicants themselves. They
admitted being directly involved in attending at the police station to clear
the stolen ox on behalf, as they say, of Clayton Hutama Basera who disowned
them.
An application for bail pending
appeal is different from a bail application pending trial by reason that in the
later situation the presumption of innocence favours the Applicant. In the former situation the applicant for
bail having been convicted of the crime no longer enjoys the benefit of the
presumption of innocence S v Kilpin
1978 RLR 282(A). Mr. Makonese who appeared for the applicant submitted that the
state failed to adduce evidence to prove guilt beyond a reasonable doubt
especially as the identification of the beasts was “dubious”. He
took the view that in light of that the Applicants had bright prospects of
success on appeal. I do not agree with Mr. Makonese because there was strong
evidence against the applicants.
Numerous cases have examined the
criteria to be followed in considering a bail application pending appeal. The main determining factors are the Applicant's
prospects of success on appeal and the interests of justice, that is to say,
whether the release of the Applicant on bail will not jeopardise the
administration of justice. Experience
teaches that the
probability of abscondment is inversely
proportional to diminished prospects of success on appeal. Equally so, in very
serious cases as this one, bail should not be lightly granted even where there
are reasonable prospects. S v Benator 1985(2) ZLR 205(H).
Thus, the courts have always taken
into consideration the seriousness of the offence, the seriousness of the
penalty imposed and the prospects of success in determining the possibility of
prejudice to the administration of justice.
In this case, the Applicants stand convicted of a serious crime of stocktheft
which carries a mandatory minimum sentence of 9 years. They were sentenced to an effective 10 years
and, as pointed out above, there is a very strong case against them.
I am not persuaded that any of the
Applicants has prospects of success on appeal.
If that is considered together with the lengthy term of incarceration
which they are facing, it becomes clear that the motivation to abscond is very
high.
It is also imperative to take
judicial notice of the fact that the three Applicants and two others were also
convicted of a similar offence of stocktheft on the 27th May 2009 by
the Kwekwe Magistrates' Court and sentenced to the mandatory 9 years
imprisonment after the court found no special circumstances. That matter came before my brother Judge as a
bail application under case No. HCB 130/09.
In addition to that, the third
Applicant, along with three others were convicted of stocktheft by the Kwekwe Magistrates
Court on 14th August 2009.
For his efforts in that matter he was given an effective 13 years
imprisonment. This proliferation of
convictions for stocktheft and the lengthy terms of imprisonment mean that the
prospects of abscondment are very high.
The Applicants being a serious flight risk, the administration of
justice will be jeopardised if they are admitted to bail.
In the circumstances the application
by the three Applicants is hereby dismissed.
Mathonsi
J.........................................................................
Makonese
and Partners, applicants' legal practitioners
Criminal Division, Attorney
General's Office, respondent's legal practitioners
