Bail
Application
MATHONSI
J:
The
applicant is a 36 year old school teacher at Gwanda High School. He
was caught red handed by his wife while in a compromising position
with another woman at the family A1 Stand in Matshetsheni Gwanda on 5
June 2016.
When
he left his wife at their residence at Gwanda High School he had
claimed to be going to town when in fact he was going on a tryst with
a girlfriend. Upon being accosted by his wife, Semziwe Mafu, there
was an altercation as the applicant shielded his girlfriend by
locking her in the house. He then pushed his wife sending her reeling
to the ground where she fell on a stone and sustained injuries. He is
said to have also assaulted the complainant although he denied it
initially.
Whatever
the case, he took advantage of the incapacitation of the complainant
to take his girlfriend in a motor vehicle before driving off.
The
applicant was charged with physical abuse in contravention of section
3(1)(a) as read with section 4 of the Domestic Violence Act [Chapter
5:16].
When
he appeared before a magistrate at Gwanda he pleaded guilty. Upon
conviction he was sentenced on 15 September 2016 to 24 months
imprisonment of which 4 months imprisonment was suspended for 5 years
on condition of future good behaviour, despite the fact that he is a
first offender who pleaded guilty, a family man and the sole
breadwinner for his wife and two minor children.
He
was so sentenced even though he had apologized profusely to his wife
and even paid compensation in the form of a beast for his
indiscretions.
He
was also footing her medical bills.
The
applicant has appealed against both convicting (despite the guilty
plea) and sentence.
The
appeal against sentence is grounded inter alia on the fact that the
trial court did not bother to consider community service even though
he qualified for community service.
He
now approaches this court seeking his admission to bail pending
appeal.
In
pleading his case the applicant has stated that as a family person
and a teacher who was on bail pending trial and sentence he is
unlikely to abscond. This is particularly so considering that his
appeal has good prospects of success. In light of the now well
documented bottlenecks and delays in appeal procedure, he may serve
the entire sentence or a good part of it before the appeal is heard
which will be prejudicial to him should the appeal succeed.
The
application is strongly opposed by the State on essentially two
grounds namely;
(i)
that there are no prospects of success on appeal; and
(ii)
that the applicant is likely to abscond.
While
I agree that the appeal against conviction enjoys no prospects of
success given the guilty plea, I do not agree that the sentence may
not be interfered with.
I
must add that to his credit Mr Mhlanga for the applicant abandoned
the appeal against conviction.
The
concern of the court in a bail application of this nature is to
ensure that the due administration of justice will not be prejudiced.
If a real possibility exists that the administration of justice would
be prejudiced by the admission of the applicant to bail, bail should
be denied.
Usually
there a risk to the administration of justice associated with a
readiness to abscond where the chances of success of the appeal are
dim. An applicant for bail who knows he is unlikely to succeed may be
inspired to take flight in order to avoid serving a term of
imprisonment.
In
the present matter, the sentencer settled for an effective
imprisonment term of 20 months against what was clearly a contrite
first offender who had done everything to appease his wronged wife.
Having
settled for such sentence the sentencer was required in terms of a
series of authorities from this court which are binding on
magistrates but which they studiously ignore quite often, to consider
the suitability of community service as a sentencing option. See S v
Antonio and Others 1998 (2) ZLR 64 (H); S v Mabhena 1996 (1) ZLR 134
(H) 140E; S v Chireyi and Others 2011 (1) ZLR 254 (H) 260D.
If,
following an inquiry into the suitability of community service, the
sentencer forms an opinion that it is inappropriate, and that
imprisonment is the proper sentence, he or she must record the
inquiry and give proper reasons for that decision which must appear
on the record. See S v Antonio, supra; S v Chinzenze and Others 1998
(1) ZLR 470 (H); S v Silume HB12/16.
No
inquiry was carried out and reasons for rejecting community service
are not apparent from the record.
Instead
the magistrate appears to have been emotional about the matter going
on and on about the applicant not having been “remorseful” that
as a teacher his behaviour “sends a bad message” to the community
and that the injuries suffered by the complainant “are life
threatening,” a finding not supported by the facts and indeed the
medical evidence.
In
view of that, I am satisfied that there was a misdirection on
sentence. The Appeal Court will therefore be at large to interfere
with the sentence.
Therein
lies the applicant's bright prospects of success on appeal. There
is therefore merit in the application for bail pending appeal.
Accordingly
it is ordered that:
1.
The applicant be and is hereby admitted to bail pending appeal on the
following conditions; that
(a)
he deposits a sum of US$100-00 with the Registrar of the High Court
in Bulawayo.
(b)
he resides at House Number L Gwanda High School until the appeal is
finalized.
(c)
he reports once every fortnight at ZRP Gwanda on Fridays between 0600
and 1800 hours.
Masiye-Moyo
and Associates, applicant's legal practitioners
National
Prosecuting Authority, respondent's legal practitioners
