MATHONSI J: The four Applicants along with
two others were charged with theft as defined in section 113 of the Criminal
Law (Codification and Reform) Act [Chapter 9:23]. The allegations against them were that on the
19th August 2008 at the 40km peg along the Beitbridge – Masvingo
road, they, along with others, had cut down 9 wooden electricity poles. After doing that they stole copper wire
measuring 8,1km which they rolled up in preparation for transportation.
The four Applicants are alleged to have been travelling in a South
African registered Toyota Hilux motor vehicle registration number JNT 904GP
which was red in colour. At the time of
the arrest of the four Applicants, they were seated in the said motor vehicle
at a laybye 40km from Beitbridge presumably waiting for their accomplices who
were busy cutting and rolling the copper wire a short distance from where the
vehicle was parked.
The Magistrates Court sitting in Beitbridge convicted the Applicants of
theft on the 30th July 2010 and sentenced all of them to 8 years
imprisonment. The first Applicant who is
a 40 year old woman was treated the same as her male colleagues after the Court
took the view that she was the leader of the event. They have now appealed against both
conviction and sentence arguing, inter alia, that the conviction
was “based on circumstantial evidence that was not corroborated” and that the
state case was incredible and full of “material inconsistencies (which) protruded
quite glaringly”
Pending the appeal hearing they have applied for their release on bail
and Mr Nyoni who appeared for the
Applicants strongly argued that the appeal has high prospects of success not
only because the State witnesses were unreliable but also that the police must
have planted the evidence of the Toyota Hilux's tyre marks at the scene of the
crime after they had requested to be shown how the anti-hijack system of the
vehicle operates. On sentence, Mr Nyoni submitted that the trial
Magistrate failed to arm himself with sufficient pre-sentencing information as
a result of which the appeal court will be at large to interfere with the
sentence.
Mr Mabhaudi
for the Respondent contested the application urging me to dismiss it as the
evidence led on behalf of the State was overwhelming and that the Applicants
were properly convicted. Regarding
sentence, Mr Mabhaudi took the view
that the Applicants must consider themselves lucky that they were sentenced to
8 years imprisonment for theft because the correct charge they should have
faced was contravening section 60(A)(3)(b) of the Electricity Act, [Chapter
13:19]. Had they been convicted under
that provision they would have been sentenced to a mandatory 10 years
imprisonment.
An application for bail pending appeal is different from one made
pending trial in that while in the latter situation the presumption of
innocence favours the Applicants, in the former the Applicant having been convicted
of the crime, he/she no longer enjoys the benefit of the presumption of
innocence. See S v Kilpin 1978RLR 282(A) 285 H and 286 A where MacDonald CJ said:-
“The principles
governing the grant of bail before conviction are entirely different from those
governing the grant of bail after conviction and the difference is even more
marked when the guilt of the accused is not in issue and the usual sentence for
the offence is an effective prison sentence of substantial duration. It is wrong that a person who should properly
be in goal should be at large and nothing is more likely to encourage frivolous
and vexatious appeals than the attitude adopted by the Magistrate in the
present case.”
Indeed the main determining factors in an application of this nature are
the prospects of success on appeal and the interests of justice that is,
whether the release of the Applicant pending appeal will not prejudice the
administration of justice. The test
usually boils down to an inquiry whether the Applicant will not abscond as it
is accepted that the motivation to flee is increased by the dim prospects of
success on appeal.
In this particular case, while the Applicants were convicted essentially
on circumstantial evidence, the law on that is very clear. In that regard I can do no better than
defer to the learned authors L H Hoffman and D Zefferties The South African
Law of Evidence, 4th Edition, Butterworths 1992 at page 589-590
where they say:-
“In R v BLom (1939AD288) WATERMEYER JA referred
to 'two cardinal rules of logic' which govern the use of circumstantial
evidence in a criminal trial
(1)
The inference sought to be drawn must be consistent
with all the proved facts. If it is not,
then the inference cannot be drawn.
(2)
The proved facts should be such that they exclude
every reasonable inference from them save the one to be drawn. If they do not exclude other reasonable
inferences, then there must be a doubt whether the inference sought to be drawn
is correct.”
At about 01:00 hours on the day in question, a group of people were
cutting down electricity poles and stealing 8,1km of copper wire used in
transmitting electricity. They had, as a
result, caused a black out in the area which prompted State witness Sithole ( a
security officer in the area), to investigate.
The copper wire was rolled and carried to a spot which was 30 metres
from where the four Applicants had parked their red Toyota Hilux motor vehicle
which motor vehicle had twigs hanging from the front bumper suggesting it had
been driven through some bush and had distinct scratches on the sides
consistent with driving through bushes.
The culprits who had cut the wire and carried it to that spot were
expecting to load it onto a vehicle but could not do so because the vehicle in
question had disappeared which disappearance coincided with the arrest of the
four Applicants. On being accosted by
State witness Sithole, the Applicants could not satisfactorily explain why they
were parked at that place at such ungodly hour.
They also had with them a weapon in the form of an axe and some sacks
which they could not satisfactorily explain.
In addition to that, not only were tyre marks similar to those of the
Toyota Hilux observed at the scene of crime, but also receipts and invoices for
the sale of copper cables in South Africa, were found in Applicants' vehicle
suggesting that someone using that vehicle was involved in selling copper
cables.
With respect, there could only be one inference to be drawn from those
proved facts especially as all four Applicants were not resident anywhere near
the place of their arrest. The evidence
against the Applicants is therefore pretty strong and their prospects of
success on appeal are very slim indeed.
Considering that they have already been sentenced to a lengthy term of
imprisonment and the prevalence of the crime of theft of electricity cables,
the motivation to abscond is also very high.
I am therefore not persuaded that Applicants are good candidates for
bail or that their release would best serve the interests of justice.
Accordingly, the application by the four Applicants is hereby dismissed.
Mathonsi J......................................................
Messrs
Moyo & Nyoni applicants' legal practitioners
Criminal Division, Attorney
General Office, respondent's legal practitioners
