TAGU J: This is an application for bail pending appeal
against conviction and sentence. The applicant was arraigned before the court
sitting at Murewa for contravening s 114 (2) (a) of the Criminal law
(Codification and Reform) Act [Cap 9:23] - stock theft. He is alleged
to have stolen a stray beast.
The applicant was legally represented during the
proceedings. He was sentenced to the minimum mandatory sentence of 9 years
after the court a quo ruled that there were no special circumstances.
He is now attacking the procedural aspect of the case, more particularly he is
now alleging that it was his defence counsel who tendered a plea of guilty on
his behalf and that the court erred in ruling that there were no special
circumstances.
I was referred to two important cases of S v Nyandoro
1987 (2) ZLR 66 SC @ 67E-F and S v Machokoto 1996 (2) ZLR 190
(H).
The counsel for the respondent is not opposing the
application.
However, having perused the record as well as the cited
cases I do not agree with the submissions by both counsels as far as the issue
of conviction is concerned. There was no misdirection on the part of the court a
quo and it is not true that it was the defence counsel who tendered a plea
of guilty on behalf of the accused. It was the accused himself who tendered the
plea of guilty and the defence counsel confirmed that the plea was in
accordance with his instructions. The lawyer proceeded to tell the court that
he had explained all the essential elements of the offence to the accused and
asked the court to enter a verdict of guilty. There was therefore nothing
untoward in that procedure. Therefore there are no prospects of success on
appeal against conviction.
However, the two cases that I cited above are
distinguishable from the present case. Be that as it may on the issue of special
circumstances this normally involves a value judgment by the court seized with
the matter. A different court may come out with a different view.
The applicant therefore may have some prospects of success
against sentence only. On that basis the application for bail pending appeal
will be allowed.
Application for bail pending appeal is granted in terms of
the draft order.
Rubaya & Chatambudza,
applicant's legal practitioners
Criminal
Division, Prosecutor - General's Office,
respondent's legal practitioners
