This
is an application for bail pending appeal.
The
applicant was convicted at Harare Magistrate Court on a charge of
fraud as defined in section 136 of the Criminal Law (Codification and
Reform) Act [Chapter
9:23].
On
7 February 2014 he was sentenced to 42 months imprisonment of which
six months imprisonment were suspended for 5 years on the usual
conditions of future good behaviour. The remaining 36 months
imprisonment were wholly suspended on condition that the applicant
pays restitution to Guest and Tanner in an amount of $18,000= through
the Clerk of Court, Harare on or before 30 April 2014.
The
applicant failed to pay the full restitution by the given date. He
managed to raise an amount of $4,800= only. He appeared before a
magistrate on two occasions requesting for further extensions of time
to pay the restitution. His requests were granted. On 31 December
2014 he again appeared before a magistrate requesting for a further
extension of time to pay. Unfortunately, this time his request was
turned down. The magistrate ordered him to serve the alternative
sentence.
The
appellant appealed against the magistrate's decision to refuse him
further extension. He applied for bail pending appeal against the
magistrate's refusal to extend his time to pay. His application for
bail was dismissed by the magistrate. In dismissing the application
for bail the magistrate said -
“…,.
It is almost a year and accused still owes $13,200= which is clear
that he is labouring to pay. He benefitted from the commission of the
crime and should also have paid his dues in time.
This
is not a Bank loan but money which the complainant suffered prejudice
and is not getting any interest. Applicant has been given several
chances to pay up but has failed. That does not need any extrinsic
enquiry. His failure is quite apparent and he will never extinguish
his dues at the rate he is paying. There should be finality to any
litigation and applicant cannot enjoy an indefinite period to pay.
Serving the alternative is justified in the circumstances.
The
application for bail pending appeal against the court a quo's
refusal to grant further time to pay has no merit in fact and at law.
It is stillborn and hereby dismissed.”
The
applicant has now appealed to this court against the court a quo's
refusal to grant him bail pending appeal against the court a quo's
refusal to grant him further extension of time to pay restitution.
The
application is opposed by the respondent.
In
an application of this nature, the approach to be adopted is whether
the magistrate misdirected himself when refusing bail. The appeal
should be directed at the magistrate's findings. See S
v Malunjwa
HB34-03.
In
my view, among the factors which the court has to take into account
when considering whether to admit an applicant to bail pending appeal
or not in an application of this nature are the following -
(a)
The prospects of success on appeal;
(b)
The likelihood of defeating the due administration of justice.
In
casu, the applicant is not appealing against conviction and sentence.
The conviction and sentence are proper. What the applicant is
appealing against is the refusal to be granted bail pending appeal
against refusal to extend time to pay restitution.
PROSPECTS
OF SUCCESS ON APPEAL
The
powers of courts as to postponement or suspension of sentences are
derived from section 358 of the Criminal Procedure and Evidence Act
[Chapter
9:07].
I will quote the relevant subsections. Section 358(2)(b) says –
“When
a person is convicted by any court of any offence, other than an
offence specified in the Eighth Schedule, it may pass sentence, but
order the operation of the whole or any part of the sentence to be
suspended for a period not exceeding five years on such conditions as
the court may specify in the order;…,.”
The
sentence in this case was suspended on condition the applicant pays
restitution by 30 April 2014.
Sub-section
5 gives directions to the magistrate on what to do in the event of a
breach or failure to fulfil the condition of suspension of a
sentence. It says -
“(5)…,.
If a magistrate has reason to believe, whether from information on
oath or otherwise, that a condition of any postponement or suspension
made in terms of paragraph (a), (b) or (c) of subsection (2) has been
contravened or that the offender has failed to pay a fine or any
instalment thereof on a date fixed in terms of paragraph (c) of
subsection (2), he may, whether before or after the expiration of the
period of postponement or suspension, order the offender to be
brought…, for the purposes of subsection (7).”
Sub
section (7) directs the magistrate on what to do once the defaulting
party has appeared before him. It says -
“(7)
When the offender is brought before the court in accordance with an
order made in terms of subsection (5), the court may commit him to
undergo the sentence which may then be or has been lawfully passed
or…,”
The
court therefore has discretion to further suspend or to commit the
offender to prison. However, subsection (8) deals specifically with
compensations. It says -
“(8)
Where -
(a)
The condition or one of the conditions on which any period of
imprisonment has been ordered to be suspended in terms of paragraph
(b) of subsection (2) is that the offender pay by a specified date an
amount of money to any person as compensation; and
(b)
Before the date part of such amount has been paid in terms of order
of suspension; and
(c)
Solely because of the contravention of the condition specified in
paragraph (a) the court, in terms of subsection (7), commits the
offender to undergo the suspended period of imprisonment;…,.”
It
is clear, therefore, that where only a part has been paid, like in
the present case, the court can still commit an offender to prison.
This applies even where the offender had personally surrendered
himself or had previously benefited from an earlier extension as long
as the full amount has not been paid. See sub-section(s)
(11) and (12).
In
the present case, the magistrate exercised his discretion judiciously
after noticing that previous extensions yielded nothing. There was no
misdirection committed by the court a quo in refusing further
extension and refusing bail since there are no prospects of success
in this case.
LIKELIHOOD
OF DEFEATING DUE ADMINISTRATION OF JUSTICE
As
noted by the court a
quo
it is almost over a year and a substantial amount is still unpaid.
There is need to have finality to cases.
In
his bail statement the applicant indicated that he is a tobacco
farmer who realises only $5,000= per season. He has no assets of
value. It shows that it will take him several years to pay back. This
is not in the interest of justice. If he cannot pay then he must
serve the alternative sentence. The fact that he already restituted
part of the money is an administrative issue that can be resolved by
the Prison Authorities. It is not the duty of the magistrate to
compute what the offender has to serve. That alone cannot be a basis
for granting the applicant bail pending appeal.
In
the result, the application for bail pending appeal is dismissed.
