Application
For Bail Pending Appeal
TAGU
J:
This
is an application for bail pending appeal against both conviction and
sentence. The applicant pleaded guilty to, and was duly convicted, of
Stock Theft as defined in section 114 of the Criminal Law
(Codification and Reform) Act [Chapter
9.23].
He was sentenced to 12 years imprisonment of which 3 years
imprisonment were suspended for 5 years on condition of future good
behaviour. He remained with an effective sentence of 9 years.
The
undisputed facts were that the applicant proceeded to the cattle pen
of the complainant at night around 2300 hours and removed one brown
ox. He drove the ox to Macheke Business Centre and tied the beast
with a rope to a tree. He then began to look for buyers. He,
unfortunately, approached one Farai Maimba the owner of TC Butchery
who, instead of buying the ox, tipped the police. The applicant was
arrested and the stolen ox valued at $650.00 was recovered.
In
his notice of appeal the applicant attacked the conviction and
sentence of the court a
quo
on the basis that the trial court failed to take into account the
employer and employee relationship that existed between the applicant
and the complainant. He claimed that he had worked for the
complainant who had not paid him for 8 months. When asked for special
circumstances his explanation was as follows-
“The
complainant did not pay me as he promised and I ended up taking his
beast unlawfully. That is all.”
The
applicant, in fact, raised a defence of claim of right which was
dismissed by the trial court as not constituting special
circumstances.
The
application is opposed by the respondent.
The
guiding principles in an application of this nature were clearly
outlined in S
v Dzawo
1998 (1) ZLR 536 as follows -
(a)
Whether there are prospects of success on appeal.
(b)
The risk of abscondment.
(c)
The right of an individual to liberty taking into account the delay
that may be encountered in finalising appeals.”
Mrs
F
Kachidza
on behalf of the respondent submitted that the applicant was properly
convicted and dismissed the defence of claim of right. She contended
that the claim of right would not succeed in term of section 122 of
the Criminal Law (Codification and Reform) Act [Chapter
9.23],
in that the applicant had taken possession of the ox, not intending
to hold the property as a pledge or security pending the satisfaction
of a debt owed by the complainant. He intended to deprive the
complainant permanently, hence he sought a buyer.
Section
122 which could be applicable to the defence raised by the applicant
reads as follows -
“122
Pledge – taking cases
(1)
Where a person takes possession or control of property capable of
being stolen which is owned, possessed or controlled by another
person, intending to hold the property as a pledge or security
pending the satisfaction of a debt owed by that other person, he or
she shall not be chargeable with theft of the property or stock theft
unless he or she intended to deprive the other person permanently of
his or her ownership, possession or control of the property, but he
or she may be charged with unauthorised borrowing or use of the
property.
(2)
A person who takes property capable of being stolen, intending to
deprive the owner permanently of his or her ownership, contrary to
the terms on which the person received possession or control of it
from the owner as a pledge or security pending the satisfaction of a
debt owed to him or her, shall be chargeable with theft or stock
theft, as the case may be.”
In
casu,
the applicant went to the cattle pen of the owner at night. He took
the property without the knowledge or permission of the owner. He was
arrested in the process of selling the ox to a butcher. He therefore,
intended to deprive the owner permanently. He cannot raise a defence
of claim of right. His chances of success on appeal against
conviction are nil.
He
was sentenced to an effective term of 9 years imprisonment. This is
the minimum mandatory sentence in terms of the Act. His chances of
success on appeal against sentence are therefore, nil. He is
therefore, not a good candidate for bail pending appeal.
In
the result, it is ordered that -
The
application for bail pending appeal is dismissed.
Kamusasa
& Musendo,
applicant's legal practitioners
National
Prosecuting Authority,
respondent's legal practitioners
