Bail
Application
MOYO
J:
This
is an application for bail pending appeal.
The
appellant was convicted of stocktheft as defined in section 114(2)(a)
of the Criminal Law (Codification and Reform) Act [Chapter
9:23].
He
was sentenced to 9 years imprisonment.
Dissatisfied
with both conviction and sentence he has noted an appeal to this
court.
He
now seeks bail pending appeal.
In
such matters the applicant must satisfy the court that he has
prospects of success on appeal and that the granting of bail will not
jeopardise the interests of the administration of justice.
In
Kilpin
vs
R
1978 RLR 282 (A) it was held that at this stage the presumption of
innocence no longer operates in applicant's favour and that bail
pending appeal should not be granted where the person has been
convicted of an offence which almost invariably attracts a lengthy
prison term and there are no reasonable of success on appeal.
In
Williams
v
R
1980 ZLR 466 (A) the appeal court held that even after conviction the
court should lean in favour of liberty if this would not endanger the
interests of justice.
The
prospects of success of the appeal must be balanced against the
interests of the administration of justice.
Where
the evidence of guilt is overwhelming there is no reasonable prospect
of success on appeal.
In
Labuschagne
vs
S
SC21/03, it was held that 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 justice system.
In
arriving at a decision on whether to grant bail pending appeal or
not, the court will take into account the seriousness of the offence,
the seriousness of the penalty imposed, whether the appeal is against
conviction or only against sentence and the prospects of success on
appeal.
With
a serious offence which normally attracts a substantial prison term,
there will be a pronounced risk that the convicted person will flee
from justice if released, especially if he has no reasonable
prospects of success on appeal.
Even
where there is a reasonable prospect of success on appeal, the
convicted person may not be inclined to take the chance of the appeal
succeeding, but may choose to take flight instead once he is released
on bail pending appeal.
In
Manyange
vs
S
HH1/03
it was held that appellant must show in addition to the prospects of
success on appeal that the interests of justice will not be
endangered if he is admitted to bail.
The
facts of this matter are that applicant was found in possession of
beasts belonging to Wanezi Mission. The beasts had a brand mark that
had been tampered with.
Initially
he told the state witnesses that the beasts were stray beasts that he
was keeping. He later told them that the beasts had been left to rent
pasture at his farm by one Promise Mathuthu.
Applicant
had sold a heifer which was part of the group to somebody else. He
claimed that he sold the beast to defray rental arrears that had
accrued without Promise Mathuthu paying.
Another
beast that was found in applicant's kraal now had applicant's
earmarks on it. He professed ignorance of how the earmarks could have
found their way onto that beasts' ears.
In
his defence outline he told the court that according to his knowledge
the beasts belonged to Promise Mathuthu who had been given the cattle
as “payment” by a Wanezi Farm manager.
Under
cross-examination he then said that the cattle belonged to a third
party who had asked Promise Mathuthu to find pasture for them.
Promise
Mathuthu was called for the defence and he proved to be an untruthful
witness and therefore he did not assist the applicant's case except
to make it worse.
The
cattle in question were moved without livestock movement permits,
this is also as per applicant's own admission.
There
is absolutely no grain of any prospect of success in the appeal by
the applicant. He has absolutely no leg to stand on an appeal.
He
has also worked in the Republic of South Africa, all his life since
1975.
He
is not a suitable candidate for bail pending appeal.
The
evidence against him is overwhelming he was convicted of serious
charges where a mandatory minimum sentence of nine years imprisonment
is passed. I have not found any reason why applicant should be
admitted to bail pending appeal. The risk of abscondment is
pronounced in this case and the application for bail pending appeal
cannot succeed.
I
accordingly dismiss the application for bail pending appeal.
Muzvuzvu
& Mguni Law Chambers,
appellant's legal practitioners
National
Prosecuting Authority,
respondent's legal practitioners
