Bail
Application
MAKONESE
J: The
applicants were arraigned before the magistrate sitting at Plumtree
facing two counts of stock theft as defined in section 114(2) of the
Criminal Law (Codification and Reform) Act [Chapter
9:23].
They were convicted and sentenced to an effective sentence of
eighteen years each. The applicants have noted an appeal against both
conviction and sentence.
They
now seek to be released on bail pending appeal.
Both
applicants were legally represented during the trial.
The
evidence presented to court revealed that the second applicant was
arrested at a roadblock at Maphisa, after police manning the
roadblock observed that there had been a tempering on the brand marks
on the beasts in question. Second applicant implicated the first
applicant and informed the police that he was merely acting as an
agent for first applicant, who was the real owner of the beasts in
question.
The
evidence led at trial was fairly straightforward.
During
the month of January 2013 the complainant penned off his cattle for
grazing at Mazwi lands leaving them to graze unattended. When
complainant rounded up his cattle he discovered that two beasts were
missing. He made a report to the local village head and to the
police. The description of the beasts intercepted at the police
roadblock fitted the one given by the complainant and subsequently
complainant positively identified his stolen cattle.
After
a lengthy trial, the trial magistrate concluded that the state had
proved its case beyond a reasonable doubt and convicted the
applicants.
The
first applicant claimed that the beasts in question lawfully belong
to him. He claimed that he had inherited the cattle from his mother,
who at the time of the offence had died. He further claimed that his
late mother had acquired the beasts as payment for services rendered.
He stated that his late mother was a traditional healer and charged
her patients by demanding cattle for payment.
The
problem with the defence is that noone witnessed the transactions
alleged by the first applicant.
At
the very least the first applicant should have led evidence to show
that his defence was reasonably possibly true.
A
policeman based at Sun Yet Sen police station was called by the state
to testify.
He
gave evidence to the effect that he had tried to verify the claims
made by the applicants by visiting the village where the beasts were
stolen. The policemen established that Hilda Nyathi was the mother of
the first applicant. He also confirmed that Hilda Nyathi did not have
any cattle and that she did not have a stock card. The policemen
interviewed the Village head who confessed to have no knowledge of
any cattle belonging to Hilda Nyathi. In any event, it later
transpired during the course of investigations that Hilda Nyathi
conducted her healing sessions in Bulawayo and had no rural home in
that village. Hilda died at her mother's homestead where she was
buried. The dip attendant was also interviewed and denied any
knowledge of cattle belonging to Hilda Nyathi.
The
applicant's defence was further complicated by the fact that
neither of the applicants used their ID cards or stock cards to clear
the beasts in question. They opted to use the stock card of one Diana
Nyathi.
At
the time the cattle were transported to Bulawayo first applicant
decided to send second applicant to convey the cattle. The reason he
gave for not transporting the cattle himself was that he had no ID
card.
It
is my view that the trial court did not err in convicting the accused
because of the overwhelming evidence.
The
applicants contend that there are bright prospects of success on
appeal because the court erred in accepting the evidence of the
investigating officer since some of the enquiries were made after the
trial had already commenced.
In
applications for bail pending appeal there are two important
considerations which our courts have laid down. Bail ought to be
granted pending appeal where:
(a)
there are reasonable prospects of success on appeal.
(b)
where there is no danger of the applicants absconding.
In
the case of S
v Williams
1980 (1) ZLR 466, FIELDSEND CJ, remarked as follows:
“---
the proper approach should be towards allowing liberty to persons
where that can be done without any danger to the administration of
justice. In my view, to apply this test properly it is necessary to
put in balance both the likelihood of the applicant absconding and
the prospects of success. Clearly, the two factors are
inter-connected because the less likely are the prospects of success
the more inducement there is on applicant to abscond. In every case
where bail after conviction is sought the onus is on the applicant to
show why justice requires that he should be granted bail.”
See
also the case of The
State
v Tengende
1981 ZLR 445.
I
am aware that in applications for bail pending appeal all the
applicant has to show is that there are reasonable prospects of
success. In other words, bail ought to be granted where the applicant
makes out a reasonably arguable case.
In
the instant case there can be no doubt that the prospects of success
are virtually non-existent.
The
second applicant was caught red-handed with the stolen beasts. The
beats were destined for slaughter.
I
am of the view that the applicants are not good candidates for bail
pending appeal.
Applicants
have been sentenced to lengthy terms of imprisonment. Granting the
applicants bail given the circumstances of the case would simply be
an inducement for them to abscond.
In
the result, the application is hereby dismissed.
Messs
Cheda and Partners,
applicants legal practitioners
National
Prosecuting Authority's Office,
respondent's legal practitioners
