MAKARAU JP: The
applicants were arraigned before the magistrates' court facing one count of
contravening section 134 of the Criminal Law Codification and Reform Act
[chapter 9.23], extortion. It was alleged that on 6 February 2009, they
unlawfully obtained a vehicle from the complainant by threatening that he would
be detained in police cells if the applicants were not paid the sum of $4
000-00. Both applicants denied the charge but were convicted after trial. They
were each sentenced to five years imprisonment with one year suspended for five
years on condition of future good behaviour. Dissatisfied with both the
conviction and the sentence, the applicants noted an appeal to this court.
They
also applied for bail pending appeal.
The
factors that a court has to take into account in determining an application for
bail pending appeal have been well debated in this jurisdiction. In such
applications I have invariably sought for and found comfortable guidance in the
remarks by BARON JA in The State v
Tengende and Others 1981 ZLR 445. I am aware that there have been other more
recent judgments from the Supreme Court pronouncing on the same subject but in
my view, the clarity of the position at law as put in that judgment is quite
appealing.
In
that judgment the learned judge clearly brought out the distinction between
considerations that should weigh with the court in an application for bail
pending appeal and an application for bail pending trial. This is what he had
to say:
“This submission loses sight of the
essential difference between bail pending trial and bail pending appeal. In
either case bail is a matter for the discretion of the court, but bail pending
trial will not normally be refused on charges of this nature unless there are positive
reasons for refusal, such as the danger of the accused absconding or of
interference with witnesses. But bail pending appeal involves a new and
important factor; the applicant has been found guilty and sentenced to
imprisonment. Bail is not a right. An applicant for bail asks the court to
exercise its discretion in his favour and it is for him to satisfy the court
that there are grounds for so doing. In the case of bail pending appeal the
position is not, even as a matter of practice, that bail will be granted in the
absence of positive grounds for refusal, the proper approach is that in the
absence of positive grounds for granting bail it will be refused. This is not
to say that an applicant for bail pending
appeal has any heavy onus to discharge; as HENOCHSBERG, J, said in R
v Mthembu, 1961 (3) SA 468 (D & CLD) at 471, "if justice is not
endangered, the court favours liberty, more particularly where there is a
reasonable prospect of success". But it is nevertheless important not to
lose sight of the fact that the exercise of the court's discretion involves
balancing the considerations of the liberty of the individual and the proper
administration of justice, and that where the applicant has been tried and
sentenced it is for him to tip the balance in his favour.”
In
conclusion the learned judge took the approach that it is not the consideration
of any particular factor that should weigh with the court in considering such
an application. Rather, the question to be answered at the end of the inquiry is
whether the applicants have shown that the court's discretion should be
exercised in their favour, taking all the factors into account.
In
casu, I have been urged to exercise
my discretion in favour of the applicants. In doing so, it was pressed upon me
by Mr Mushangwe that the trial
magistrate misdirected herself in accepting the State evidence at the expense
of the evidence adduced by the applicants. In particular, Mr Mushangwe argued that there was insufficient evidence on record
upon which a guilty verdict could be returned.
I
am afraid I do not agree with him in this regard. My reading of the record is
that the evidence before the trial court was cogent and any other verdict would
have been a miscarriage of justice.
Mr Masamha for the respondent did not
oppose the application. In his written response, he had some misgivings on the
evidence led by the State in the matter and was of the view that upon
revisiting by a superior court, the findings by the trial court that an offence
had been proven before her could be interfered with. Not being quite satisfied
as to the basis upon which the concession by the respondent had been made, I
requested additional submissions from Mr
Masamha. I am afraid I am still not convinced that the concession by the
respondent was properly made.
Mr Masamha has made heavy weather of the
fact that some three persons who may have added weight to the State case were
not called to testify in addition to the three witnesses who testified in the
matter.
It
is correct that the evidence of these three witnesses may have added weight to
the State case. But, the state case was already cogent without such evidence and
their being called would have served to simply repeat the evidence that was
before the court. The absence of such additional witnesses in the witness stand
can hardly be a misdirection on the part of the trial court.
Mr Masamha also made the startling
submission that the testimony of the first two State witnesses needed to be
corroborated as they had an interest in the matter. One would assume that all
complainants have an interest in the matters where they testify otherwise they
would not be complainants or witnesses in this first place. To then suggest
that the testimony of each complainant must be corroborated is not only without
precedent but goes against the clear provision at law that the testimony of any
one witness shall be sufficient to ground a conviction.
He
then referred to what he termed “grey areas” that surround this case without
further elaborating what effect these “grey areas” had on the soundness or
otherwise of the conviction of the applicants and the sentence resultantly
imposed upon them.
It
appears to me that every trial, no matter how meticulous the presiding officer
is, will have in attendance one or more features that could have been done
differently by another presiding officer. This is why the exercise of
discretion by the presiding officer is protected in the absence of a
misdirection that vitiates the proceedings. Again as was aptly observed by
Blackie J in S v Gono 2000 (2) ZLR 63
(HC), it is not every misdirection that will entitle an appeal court to
interfere with the decision of the trial court. Only an improper or
unreasonable exercise of discretion will be considered as a misdirection that
calls for the appeal court to exercise fresh discretion in the matter.
I
am not persuaded that the trial court erred at all in the matter of the 'grey”
areas or in its assessment of the cogency of the evidence that was adduced
before it.
Both
counsel submitted that the trial court did not properly exercise its discretion
in assessing sentence in this matter and that the noting of an appeal against
sentence should weigh with me in considering this application. I agree that the
noting of an appeal against sentence is a factor that should weigh with me as generally
speaking, the noting of an appeal against sentence offers a wide scope for a
different opinion. (See S v Dzawo
1998 (1) ZLR 536 (S)).
My
dilemma in this matter is two fold. Firstly I do not find any instance in which
the trial court improperly or unreasonably exercised its discretion in assessing
the sentence. It is not adequate that I find I may have imposed a different
sentence in the matter. My attention must be drawn to a misdirection by the
sentencing court. It was not. To the contrary, I find that the trial magistrate
was alive to the fact that she was dealing with first offenders who ordinarily
should have been sentenced to a non –custodial sentence but for the aggravating
features of the case that she highlighted in detail. Even if it were to be
established that the trial court erred in some other respect which does not
immediately present itself to me, in my view a custodial sentence would have
been the appropriate sentence in this matter.
Secondly,
while both counsel submitted that the sentence imposed by the trial court was
severe and induced a sense of shock, they did not refer me to any authority
where in similar circumstances, a less harsh sentence was imposed. My own
limited research has not been able to yield any such. In view of the fact that
this is a bail application in which I must hand down my judgment without delay,
I have decided not to delay any further whilst carrying out research on this
issue.
Finally,
Mr Mushangwe made the valid point
that where the Attorney –General has made a concession, his opinion in the
matter should command respect. Indeed the opinion of the Attorney- General
commands the respect of this court as it is invariably well put and founded. It
is invariably based on established legal principles that underpin the criminal
law of this country and is based on detailed research that the court does not
have time to carry out on its own. It is invariably balanced and where
necessary, draws the attention of the court to authorities that may be adverse
to the final position adopted by the respondent. It is invariably reliable as a
statement of the position at law of the issue in dispute.
In
casu, I find the opinion of the Attorney- General lacking in one or more of the
above respects. It is not of the standard that is usually extended to this
court. I am of the view that the concession made in this matter was not
properly made.
In the
result, I make the following order:
The
application for bail pending appeal is dismissed.
Mushangwe &
Company, applicants' legal practitioners.
