Application for Bail Pending
Appeal
KAMOCHA J: The
applicant and one Absolom Hlupho were jointly charged with fraud.
The
allegation was that they had caused the delivery of a fake warrant of
liberation to Superintendent Joe Matyavira with the intention of
deceiving him into releasing from prison one Lungisani Sibanda, a
convicted prisoner who was serving an effective sentence of 7 years
imprisonment for theft of a motor vehicle.
They
were arraigned before a Provincial Magistrate and pleaded not guilty
but were found guilty at the end of a protracted trial despite their
protestations.
Absalom
Hlupho was sentenced to 36 months imprisonment of which 18 months
imprisonment was suspended for a period of 5 years on the customary
conditions of future good behaviour. While Tungamirai Nyengera was
sentenced to 48 months imprisonment of which 12 months imprisonment
was suspended on condition of future good behaviour.
The
applicant Tungamirai Nyengera noted an appeal against both conviction
and sentence. He now seeks to be released on bail pending the hearing
of his appeal.
He
submitted that his release would not jeopardize the interest of
justice for the reasons that the conditions for his release will be
stringent enough to safeguard the said interests.
It
was his further contention that his appeal was not only reasonably
arguable but that there was room that the Appeal Court may arrive at
a different decision. He then concluded that the appeal has good
prospects of success.
The
draft he filed of record reads as follows:-
“It
is ordered that:-
Applicant
be and is hereby admitted to bail pending the finalization of his
appeal on the following conditions:
(a)
That he deposits the sum of US$500,00 with the registrar of the High
Court of Zimbabwe, Bulawayo.
(b)
That he resides at No. 5952 Luveve 5, Bulawayo until his appeal is
finalised.
(c)
That he surrenders his travel documents to the registrar of the High
Court of Zimbabwe, Bulawayo.
(d)
That he reports at Bulawayo Central Police Station twice a week on
Mondays and Wednesdays between the hours of 6am and 6pm until his
appeal is finalised.
(e)
That the applicant shall deposit with the registrar of the High Court
of Zimbabwe, Bulawayo the lease agreement/agreement of sale with the
City of Bulawayo for house number 5952 Luveve 5, Bulawayo as surety
for his release.”
The
above bail conditions are just ordinary bail conditions for bail
pending appeal which are commonly breached by those who abscond.
US$500,00
is not a large sum of money for a legal practitioner who has been in
practice for three years.
The
fact that he surrenders all his travel documents does not mean that
he cannot leave this country. It is in fact now common knowledge that
there are too many Zimbabweans going out of this country without any
form of travel documents. They are the ones who give brisk business
to “Omalayitsha” a word commonly used to describe those who are
in the business of transporting goods and human beings (usually
unlawfully to South Africa).
Reporting
to the police twice a week on Mondays and Wednesdays between 6am to
6pm will not stop the person from leaving the country. He has plenty
time between 6pm on Wednesday and 6am on Monday.
The
applicant clearly has no title to house number 5952 Luveve 5. It is
also very doubtful that his father Stanilous Hlamai Nyengera has
title to that house.
The
above conditions are far from being stringent. At the most the
applicant would only lose US$500,00 if he skipped bail.
It
must always be remembered that the presumption of innocence no longer
operates in the applicant's favour. He has been convicted and is
serving a 36 months term of imprisonment which would act as impetus
for him to skip his bail.
Applicant
contended his appeal against conviction and sentence had prospect of
success.
I
do not agree. The opposite is the case, in my view.
I
shall not delve at length into the evidence that was led at the trial
as that is the domain of the appeal court.
Suffice
to say the trial court made specific findings on the following;
It
found as a fact that the warrant of liberation was fake and gave
reasons for such finding.
The
prisoner never noted an appeal against conviction and sentence.
Nyengera
did not apply for bail on behalf of the prisoner pending appeal.
Hence
the warrant of liberation told a lie about itself when it reflected
that the prisoner paid bail pending appeal on receipt number 326980.
Another
finding by the trial court was that the warrant of liberation
originated from Nyengera's office in khaki envelope. It was carried
by Absolom Hlupho who delivered it at Khami Maximum Prison. Two
prison officers proved that the khaki envelope which Hlupho conveyed
to the officer in charge contained the fake warrant of liberation.
Further
the trial court found as a fact that Lilian Tapera was worth to be
believed. The court believed her when she told it that numerous phone
calls were made between her, Absolom and Nyengera on 24 December
2014. The calls were in connection with the release from prison of
Lungisani Sibanda.
Furthermore
the trial court found that Nyengera visited Lilian Tapera on 25
December 2014. The purpose of the visit was to persuade her to alter
the statement she had given to the police. She was corroborated by
her mother Joyce Sibanda who in fact advised her against changing her
statement.
At
the hearing Mr Nyoni appearing for the applicant highlighted that the
evidence of the call histories was inadmissible as it was obtained
unlawfully.
He
was clearly indulging in blowing both hot and cold.
He
represented the applicant at trial and consented that the call
histories be admitted in evidence as exhibit 4. But when making his
closing submission at the end of the trial he had changed his mind
and contended that the call histories were inadmissible.
Even
if that piece of evidence were to be expunged from the record the
evidence of Lilian Tapera which was accepted by the court would
suffice. Her evidence is that numerous calls relating to the release
of Lungisani Sibanda took place between Nyengera, Absolom and herself
took place.
I
indicated to the parties that my reasons would follow when I
dismissed the application.
These
are they.
Messrs Moyo & Nyoni,
applicant's legal practitioners
Prosecutor General's Office,
respondent's legal practitioners
