Bail Pending Appeal
BERE J: The applicant was employed as a Public Prosecutor and
based at Bulawayo Magistrates Court. On 11th of March
2016, and after having been tried of two counts of abuse of public
office as informed by section 174 (i) (a) of the Criminal Law
(Codification and Reform Act) [Chapter 9:23], he was convicted and
sentenced to 5 years imprisonment of which 2 years were suspended for
5 years on the usual conditions of good future conduct.
Having been so convicted and sentenced, the applicant made an
impromptu request for bail pending appeal which application was
declined by the court a quo. The instant application seeks to
have the applicant granted bail pending the prosecution of his appeal
filed in this same court.
Before dealing with the application filed I wish to make certain
remarks on the structure of the application for bail filed in this
court. It is noted that the bail application itself, and as has
become common in similar applications filed in this court is a
combination of the written statement in support of bail application
and heads of argument. It occurs to me that this approach is wrong
and not supported by the rules which regulate such an application,
viz High Court of Zimbabwe (Bail) Rules1.
The Rules in question sufficiently speak to what must be contained in
the statement for bail. They do not speak to having to combine that
statement with heads of argument. If heads of argument have to be
filed these must be separately filed to avoid contaminating the
statement itself.
The statement for bail must be kept simple as dictated by the Rules
that create it.
Having made this observation I wish now to deal with the application
filed.
The broad considerations in an application for bail pending appeal
are trite and the cardinal factors which must guide the court are
basically the following ones:
-
The likelihood of the applicant absconding in the event of him/her
granted bail, and
-
The existence or otherwise of reasonable prospects of success in the
lodged appeal.
See The State v Williams2; S v
Benatar3 and S v Manyange4,
amongst a plethora of other cases.
As noted by FIELDSEND C
J (as he then was) in the State v Williams,
“In my view, to apply this test properly it is necessary to put in
the balance both in the likelihood of the applicant absconding and
the prospects of success. Clearly the two factors are
inter-connected because the less likely are the prospects of success
the more inducement there is on an applicant to abscond. In every
case where bail after conviction is sought the onus is on the
applicant to show why justice requires that he should be granted
bail”.5
In its opposition to the application for bail pending appeal, the
State has harped on the absence of prospects of success as the likely
inducement for the applicant to abscond and I feel inclined to focus
on this issue in this case.
It does seem to me that a perusal of the proceedings in the court a
quo are stalked by the failure by the court to appreciate that in
dealing with the evidence of the complainant, Vusumuzi Ndhlovu, the
court was clearly dealing with the evidence of an accomplice. L. H.
Hoffman and D T Zeffertt in their discussion on accomplices refer to
an accomplice as basically “a person who has participated or
assisted in the commission of a crime other than the perpetrator.”6
It is common cause that the complainant allegedly dealt with
the accused secretly in giving him the first $100 dollars.
Section 267 of our Criminal Procedure and Evidence Act7
speaks to the procedure that the court must follow in dealing with an
accomplice witness. Although this issue was highlighted to the court
a quo by the applicant's counsel, both the presiding
magistrate and the prosecutor did not seem to understand this
position. The result was that an accomplice witness was treated like
an ordinary witness for the State. The view that I take is that the
appeal court must be allowed to deal with refined arguments on this
issue which was clearly not fairly dealt with in the lower court.
This witness was central to the prosecution of the applicant and it
is possible that failure to appreciate the legal status of this
witness might be regarded as a misdirection that goes to the root of
the whole proceedings.
It is quite doubtful that the appeal court will endorse the position
adopted by both the magistrate and the prosecutor that the principle
witness in this case was not an accomplice in the light of the
specific provisions of the law regulating the conduct of proceedings
in dealing with such witnesses. The situation gets worse when one
notes that there was no attempt by the presiding magistrate to invoke
the necessary precaution of warning himself against the danger of
convicting the appellant upon the evidence of the complainant.
It is trite that where the court is dealing with the evidence of an
accomplice.
“The court should warn itself of the danger of convicting upon the
evidence of an accomplice and show that it has heeded the warning by
pointing to some factor which can properly be regarded as reducing
the risk of convicting an innocent person.” 8
It was critical in the lower court proceedings for the prosecution to
adequately deal with the issue of the recovery of the trap money from
the applicant. The record of proceedings will show that there is no
unanimity amongst the witnesses as to how the $100 was recovered from
the accused at Edgars Stores. The applicant's position is that
this money was planted on him by the arresting details. I. M.
Makondora one of the key witnesses seems to concur with the
applicant's position on this issue if the record of proceedings is
anything to go by as evidenced by the following exchanges in the
record of proceedings.
“Question by DC to this witness
Q the accused will say you manhandled, pushed and shoved by the man
who dragged him outside and shoved in a vehicle and shown a $100
note?
A nothing like that happened. We held him by the belt, showed him
the $100 note and a photocopy of the money”9 (sic)
On record page 26 I. M. Makondora gives yet another complicated or
unclear version of what transpired. The witness, said the applicant
cooperated and gave him the trap money in the presence of one Z.
Mangizi, a Safeguard Security Officer. But alas! When Mangizi
testified, he was clear that he did not witness money changing hands
between the accused/applicant and the arresting officers. Contrary
to the evidence of the arresting details, the witness testified that
the officers struggled with the accused inside the shop and even left
the shop without him having seen any money changing hands.
Alifanos Toringa, a sergeant in the ZRP, one of the arresting details
did not speak with conviction when questions were put to him about
whether or not he saw the complainant handing over the trap money to
the applicant. Even the presiding Magistrate was satisfied that this
witness was not candid with the court on this aspect. The record of
proceedings will also show that the arresting details, being police
officers and as such being persons in authority were allowed to utter
otherwise inadmissible confessions by the accused in clear violations
of what has become elementary procedure. See S v Nkomo10,
per McNALLY JA –
It will be noted that one of the pieces of evidence which tended to
link the accused to the commission of the offences charged were the
telephone exchanges between the applicant and the complainant. The
accused gave a reasonably possible explanation for such telephone
exchanges.
Finally, it occurs to me that the presiding Magistrate was correct in
his interpretation of section 70(1) (i) of the Constitution. Perhaps
what needs to be clarified is that an accused person who chooses to
invoke this section at the close of the State case must be understood
to be adopting his defence outline as his spoken evidence under oath.
This would be so because when an accused person elects to give
evidence at the close of the State case, what he will be doing is to
expand on his defence outline already forming part of the record of
proceedings.
The decision by an accused not to give evidence is simply an
indictment to the prosecution to present its case in such a way that
with or without the additional evidence of the accused other than his
defence outline, the court must be able to secure his conviction.
The State cannot wait for he accused person to give evidence, as it
were, in order for it to secure a conviction. The State's case
must be sufficient on its own and unaided by the accused person's
evidence.
Given the manner in which the evidence was presented and assessed in
this case, I am unable to come to the conclusion that the applicant's
appeal is a hopeless one to the extent of holding it to lack
prospects of success.
The applicant's appeal is arguable.
As indicated before one may not be able to separate the likelihood of
abscondment from the prospects of success. These two are
interconnected. For these reasons I feel more inclined to grant the
applicant bail pending appeal on the unchallenged terms outlined in
the draft order to his application.
It is hereby ordered that:
-
The applicant be and is hereby granted bail pending appeal on the
same bail condition as were in force under his bail pending trial
under CRB 2959/15, X Ref CRB Reg 125/16, that is to say:
-
The Clerk of Court (Criminal) Magistrate Court, Bulawayo shall
retain:
-
The US$500,00 bail deposit paid under CRB 2959/15 as the applicant's
bail in this case.
-
The applicant's passport also surrendered under CRB 2959/15
pending the finalisation of the applicant's appeal under HCA
41/16.
Messrs Ndove, Museta & Partners, applicant's legal
practitioners
Prosecutor General, respondent's legal practitioners
1. High Court of Zimbabwe
(Bail) Rules 1991
2. 1980 ZLR (1) 466
3. 1985 (2) ZLR 205
4. 2003 (1) ZLR 21
5. S
v Williams (supra)
page 468G – H
6. The
South African Law of Evidence,
4th Edition (Butterworths) pp 575 – 576
7. Section
267 of Criminal Procedure And Evidence Act [Chapter 9:07]
8.
The South African Law of Evidence (supra)
p 575
9.
Record page 31
10.
1989
ZLR (3) p 117 (S)
