Bail
Application
MOYO
J: This
is an application for bail pending appeal.
The
applicant was convicted of three counts of stock theft by the
magistrates court sitting at Gweru on 14 October 2013. He was
sentenced to 12 years imprisonment in respect of each count for count
one and two. He was further sentenced to 10 years imprisonment for
the third count. One year was suspended on each count, on condition
the applicant paid restitution in the following sums per count, $400,
$266, and $200 respectively.
This
left the applicant with 31 years effective.
It
would appear from the court record that the applicant had previously
applied for bail pending appeal before the trial magistrate and it
was denied. The applicant has however instead of appealing the
magistrate's decision to refuse bail, filed another application for
bail pending appeal before this Honourable court.
The
title of the application before me is “Notice of application for
bail pending appeal.”
In
the application itself it is stated as follows:
“Be
pleased to take notice that the applicant Frank Mpofu hereby applies
for bail pending appeal in terms of the draft order annexed hereto.”
In
fact even in all the papers the applicant is addressed as “Applicant”
and not “Appellant.”
The
respondent in its opposing papers has raised a point in
limine
contending that the applicant is not properly before court as the
application before court is not an appeal against the refusal of bail
pending appeal by the magistrate in the court a
quo,
but is instead a fresh application being made for bail pending appeal
before this Honourable court.
Ms
Ndlovu
for the state argued that applicant should not have made a fresh
application for bail pending appeal before this Honourable court, but
that he must have noted an appeal against the refusal of bail pending
appeal by the magistrate in the court a
quo.
That he must, attack the court a
quo's
decision and show before this court the misdirection of the court a
quo
in refusing bail pending appeal.
In
the application itself, the applicant has tried though to attack the
learned magistrate's reasons for failure to find that the applicant
does not have prospects of success on appeal.
In
the interests of justice, I will overlook the procedural hurdles that
applicant faces for the simple reason that in the body of the
application he does try to show how the magistrate misdirected
herself in the refusal to grant bail pending appeal.
This
information is given in a very scant manner though.
Central
to the determination of such an application are the prospects of
success on appeal although it is incumbent on the applicant to show
that his admission to bail pending appeal would not endanger the
interests of justice. Refer to the cases of S
v Tengende
and Others
1981 ZLR 445 and that of Manyame
v S
HH1/03 wherein it was held that even if there were prospects of
success on appeal, that does not entitle an applicant to bail, he
should, in addition to the prospects of success on appeal, show that
the interests of justice would not be endangered if he is granted
bail.
There
are no prospects of success on appeal in this matter because
applicant is one of the three accused persons that were met by
Lamulani Dube driving four herd of cattle. Lamulani Dube knew the
three accused prior to that date as he alleged that he attended
school with them and generally knew them from his area. He even
greeted and talked to them on the date in question.
Accused
6, although he is an accomplice, the court exercised caution in
dealing with his testimony. He did implicate the applicant and the
evidence of Lamulani Dube does corroborate that of accused 6.
There
are therefore no prospects of success on appeal in this matter.
I
accordingly cannot find that the interests of justice would not be
endangered by releasing the applicant on bail pending appeal. The
applicant faces a lengthy jail term ahead of him and with no chances
of success on appeal, the risk of absconding and not waiting for the
appeal court to decide on his fate is very high.
The
application for bail pending appeal is accordingly dismissed.
Garikayi
and Company,
appellant's
legal practitioners
National
Prosecuting Authority,
respondent's legal practitioners
