Application
for Bail Pending Appeal
MUZENDA
J:
On
19 July 2019, applicant applied for bail pending appeal seeking the
following relief:
“IT
IS ORDERED THAT:
1.
The bail pending appeal be and is hereby granted on the following
conditions:
(i)
Applicant deposits cash in the sum of RTGS$100 to the Clerk of Court,
Rusape.
(ii)
Report once to Glen View Police Station on the last Friday of each
month until the determination of the Appeal.
(iii)
The Applicant is to reside at 7252, 96th
Crescent, Glen View Area 8, Harare, until the determination of the
Appeal.”
The
bail application appeal is opposed by the State.
BACKGROUND
FACTS
On
11 June 2019, the applicant was arraigned at Rusape for Rape as
defined in section 65 of the of the Criminal Law (Codification and
Reform) Act [Chapter
9:23]
where the State alleged that on 8 September 2018 and at Tsikada
Primary School Bus Stop, the applicant unlawfully had sexual
intercourse with X, a female person without her consent knowingly or
realising that there was a real risk or possibility that X may have
not consented.
According
to the State summary, applicant is employed by Mwayera Buses as a
conductor and the complainant X is aged 16 years and resides at
Village 13A Chinhenga.
Applicant
and complainant are not related.
On
8 September 2018 at around 0800 hours, the complainant boarded one of
Mwayera buses from Harare going to Chinhenga with the applicant as
the conductor. The applicant then went to share the same seat with
complainant and on their way, the applicant proposed love to the
complainant, complainant turned down the proposal stating that the
applicant was married. The bus reached Tsikada Bus Terminus where the
complainant got off to relieve herself together with another woman
unknown to the complainant.
After
about two minutes, the applicant followed the complainant and ordered
the woman to go back into the bus as he wanted to talk to the
complainant. The applicant then further asked the complainant to
consider her response to his proposal. The complainant remained with
her rejection and that is when the applicant pushed the complainant
against a sign post, pressed her against it denying her any movement,
forcibly removed complainant's pant from underneath her skirt,
produced his erect penis and had sexual intercourse once with
complainant without her consent.
During
the act, complainant screamed but no one heard her as there were some
noise from the two buses which were at the terminus.
The
complainant managed to push away the applicant and returned to the
bus but did not disclose the matter to anyone.
The
applicant returned to his seat in the bus and told complainant that
he was going to marry her if she fell pregnant.
On
10 September 2018, the complainant made a report to her school
teacher, Mrs Dodzo who then made a report to the Headmaster then to
the police.
Applicant
was subsequently found guilty after trial and sentenced to 10 years
imprisonment of which 3 years imprisonment was suspended for 5 years
on the usual conditions of future good behaviour.
On
14 June 2019 he filed an appeal against conviction only. Now he is
applying for bail pending that appeal.
APPLICATION
In
his application for bail pending appeal, the applicant contends that
he is a good candidate for bail because according to him, there are
good prospects of success against conviction. There is a good
likelihood of delay before the appeal could be heard and he is not
going to abscond.
He
adds that he has an arguable case on appeal because the Regional
Magistrate failed to place due weight on the material inconsistencies
in the complainant's evidence and highlighted the evidence he
perceives complainant faired poorly.
The
applicant pointed out that the court should have mero
motu
ordered an inspection in loco and also further pursued the
applicant's alibi which was belatedly raised during
cross-examination of the applicant by the State and not contained in
the defence outline.
The
applicant is unlikely to abscond in light of the strong prospects of
success on appeal. Applicant admits that the presumption of the
innocence is no longer operative after the conviction and sentence,
however there is no cognizance that the applicant will abscond.
The
State on the other hand submitted that the onus is upon the applicant
to satisfy the court that his admission to bail will not prejudice
the administration of justice.
Applicant
has no affidavit statement applying for bail pending appeal.
The
State urged the court to conclude that there is no application before
the court because of the failure to attach an affidavit signed by the
applicant.
It
went on further to contend that there are no prospects of success on
appeal.
The
grounds of appeal filed by the applicant lack specifics and clarity,
it amounts to no appeal.
Due
to the sentence passed on the applicant, if applicant is granted bail
is likely to default. There is no delay in the appeal being heard
since the record of proceedings is ready for setting down.
The
State supported the medical report and dismissed the applicant's
argument on the alleged inconsistencies of the complainant. In the
view of the State, the inspection in loco was not necessary. On the
issue of alibi, the State submitted that the applicant failed to
raise the defence of alibi, he did not.
THE
LAW
In
S
v Manyange
MAKARAU J (as she then was) held that:
“In
an application for bail pending appeal, as distinct from bail pending
trial, the presumption of innocence is inoperative and for his
application to succeed an application must show that there are
positive reasons why bail should be granted. It is not enough for the
applicant to show that he has reasonable prospects of success on
appeal, he must go further and establish that there are positive
grounds for granting him bail pending appeal and that the granting of
bail will not endanger the interests of justice. The onus is on him
to tip the balance in his favour.”
At
p21F, the Learned Judge further held:
“…..
it was not enough for the applicant simply to point to some
inadequacies in the State case he had to show that, in addition to
his prospects of success on appeal, the interests of justice would
not be endangered if he was granted bail.”
In
S
v Labuschagne
GWAUNZA JA (as she then was) held on p644 D-F:
“….
That the mere fact that leave to appeal has been granted does not,
per se, entitle a convicted person to be allowed out on bail. The
onus of establishing that justice will not be endangered and that
there is a reasonable prospect of success is upon the applicant. It
is improper to allow people convicted of serious crimes to be walking
in the streets instead of serving their sentences when the prospects
of success are non-existent. Society would lose faith in the system
and revolt.
Further,
that, on the evidence, the applicant had not proved that there were
positive grounds for granting him bail pending appeal. He had not
discharged the onus of establishing that justice would not be
endangered and that there was a reasonable prospect of success.”
ANALYSIS
In
its response to the application, the State pointed out correctly that
the applicant in this matter failed to file an affidavit in support
of the application for bail pending appeal.
The
court has noted with concern the practice by legal practitioners to
file what is termed “applicant's statement.”
The
Statement contains case law authorities decided in South Africa and
Zimbabwe and a brief summary for the grounds upon which the
application is premised.
Applicant's
statement nor affidavit is not attached.
This
procedure is not proper in my view. The applicant must sign a
statement or affidavit that would form the evidence to be relied upon
by the applicant in the application.
Where
there is no affidavit there is properly no application to talk of.
The applicant would have failed to discharge the onus bestowed upon
him.
In
this case the court condoned that omission in the interests of
justice and proceeded to hear the matter on merits.
It
should also be pointed out that it is improper to combine case law
authorities in a statement purportedly filed on behalf of the
applicant.
If
applicant wishes to address the court on the points of law on bail,
he should do so from the bar or file separate heads of argument
divorced from the statement or affidavit prepared on behalf of the
applicant.
Mr
Muzawazi
struggled
to attack the conviction of the applicant.
The
judgment of the court a
quo
and the response filed by the State clearly shows that the prospects
of success on appeal is a mountain for the applicant to climb. The
test at this stage is obviously that the applicant must have an
arguable case on appeal but even for that, the applicant failed to
prove that in his evidence and argument before the court.
He
failed to prove that there are positive reasons why bail should be
granted. He failed to prove that to tip the balance in his favour.
The
applicant did not know the complainant, he could not explain the
aspect of identification to the court, from 0800 hours in the morning
from Harare to Tsikada Primary School, the complainant shared the
same seat on the bus, spoke to applicant during the love proposal and
sat and conversed with the applicant after the rape, in my view the
court a
quo
was correct to conclude that in as far as the identity of the
applicant was concerned, the complainant was not mistaken.
The
so called inadequacies in the State case were capably explained by
the trial court and in any case, it is not enough simply to aver that
there are inadequacies, the applicant failed to show that the
interests of justice would not be endangered if he was granted bail.
Since
applicant has already commenced serving his sentence, the onus was on
the applicant to show that his release on bail would not result in
him absconding thereby prejudicing the interest of justice.
He
failed to discharge that onus.
DISPOSAL
Accordingly,
the application for bail pending appeal is dismissed.
Mtombeni,
Mukwesha, Muzawazi & Associates,
Applicant's legal practitioners
National
Prosecuting Authority,
Respondent's legal practitioners
1.
2003 (1) ZLR 21 at 218
2.
2003 (1) ZLR 644
3.
See S v Labuschagne (supra)