Application for bail pending review
KAMOCHA J: The applicant was convicted of theft of two heifers after
tendering a plea of guilty to the charge.
He was then sentenced to undergo 13 years imprisonment of which 3 years
imprisonment was suspended on condition of future good behaviour. The applicant erroneously stated in his
application for review that no portion of the sentence was suspended.
In
brief the facts of the matter which applicant agreed with are that on 2 April
2008 at 7pm the accused with his colleague, who is still at large, arranged to
go to Sundown North grazing area in the Ntunungwe area of Plumtree. The purpose of the trip was to steal cattle
from there. Indeed upon arrival they
stole two heifers which they drove towards Mbalibali.
They,
however, ran out of luck as they were intercepted by members of the public who
demanded to see their police stock clearance certificates and the vet
permits. They failed to produce the
documents resulting in members of the public deciding to take them to Somnene
Police base. On the way to the police
base the accused's colleague one Crispen Nkomo made good his escape. Investigations were carried out which
revealed that the two heifers belonged to Siboniso Moyo. The two heifers were valued at 60 billion
dollars.
After
his conviction and sentence he filed an application for review and this application
for bail pending review. The state
counsel filed a notice conceding to the granting of bail. However, because I was not satisfied that the
concession was proper I invited both state and defence counsel to appear before
me to persuade me to view the matter in the same light as they did.
When
asked what irregularity the trial court had committed during the trial of the
matter both counsel conceded that there was none. They conceded that the manner in which the
trial court handled the matter was unassailable. Indeed the trial court cannot be faulted in
the manner it dealt with the trial. The
following is what took place in court:-
“Charge
put to accused
Plea - G
“A” Facts put to accused
Q - Do
you agree with them
A - Yes
Q - Anything
to add/subtract
A - No
Essential
Elements
Q - Correct
on 2/4/08 you took complainant's 2 heifers
A - Yes
Q - You
took them without complainant's consent
A - Yes
Q - Your
intention was to deprive the owner permanently of the heifers
A - Yes
Q - Any
right
A - No
Q - Any
defence
A - No
Q - Have
you understood my explanation
A - Yes
Q - Any
special circumstances
A - It happened because I was suffering from hunger. I was forced to commit the offence. I wanted to go to South Africa to look for a job but
I did not have the transport fare. I
thought I would raise some money for transport as well as giving my family some
whilst I go to South Africa.
…
Q - Why
did you commit this offence
A - It
just happened because I wanted to go to South Africa and we wanted to pay
for transport to go there.”
In
the light of the foregoing the prospects of success on review are non
existent. The applicant seeks to rely on
allegations of assault by the police which he had not even brought to the
attention of the trial court. The
alleged culprits are not even named. The
applicant cannot rely on the alleged assaults by the police which he did not
see fit to mention to the trial court.
Applicant
also seeks to rely on a letter from one Casper Nkomo exonerating him. The letter is clearly intended to mislead
when regard is had to what the applicant himself had to say. His reasons for stealing the cattle are quite
clear. Casper Nkomo's explanation is
therefore too clumsy to mislead anybody.
It is simply unbelievable.
The
above are the reasons why I dismissed the application after listening to both
state and defence counsel.
Cheda & Partners,
applicant's legal practitioners
The
Attorney-General's Office, respondent's legal
practitioners
