Urgent Chamber Application for leave to appeal in terms of section 121 of the Criminal Procedure and Evidence Act [Chapter 9:07] as read with section 44(5) of the High Court Act [Chapter 7:06].

This is an urgent chamber application for leave to appeal against the decision of my brother HUNGWE J dated 9 April 2009 in which he granted bail to the three (3) respondents on stringent conditions despite strenuous opposition from the State. I consider that the application is urgent as it has to do with the liberty of the subjects as enshrined in the Constitution of the land.

The background to this application is that the three (3) respondents were arrested together with four (4) others who have since been released on bail.

They are facing five (5) counts of crimes against the State, that is to say, insurgency, banditry, sabotage or terrorism in contravention of section 23(1)(a)(i)(ii) of the Criminal Law (Codification and Reform) Act [Chapter 9:23], or, alternatively, aggravated malicious damage to property in contravention of section 143 of the Criminal Law (Codification and Reform) Act [Chapter 9:23].

The respondents appeared before KARWI J for their initial bail application on 19 January 2009. His Lordship, after hearing argument from both sides, denied all the seven (7) applicants bail. In denying them bail he made three (3) specific findings of fact as follows:

1. That the offences are serious.

2. That the applicants were likely to commit similar offences.

3. That the applicants were likely to interfere with witnesses….,.

He therefore endorsed on the record file:

“1. Dismissed.

2. Matter to be considered after 7^th February.

3. Police to reconsider the case of Nkomo, Ezekiel or Zachariah.”

There was no appeal against the decision of KARWI J to deny all the seven (7) applicants bail.

All the seven (7) applicants, however, again approached this Court for bail on 10 February 2009 arguing that there existed changed circumstances warranting their release on bail. After hearing full argument, OMERJEE J decided to grant the three (3) applicants' co-accused bail on 19 February 2009 primarily on the basis that the State case against them was rather weak. By the same token, he denied the three (3) respondents in this case bail on the grounds that the State had a strong case against them.

Aggrieved by OMERJEE J's decision they approached the Supreme Court on 6 April 2009 for redress under case number SC35 of 2005. The appeal was unsuccessful in the highest court of the land. In dismissing the appeal, the learned Chief Justice pointed out that in view of the fact that there had been no appeal against KARWI J's judgment, OMERJEE J's decision could not be faulted. Undeterred by that set back, the applicants again approached this Court, appearing before HUNGWE J, seeking bail on the basis of changed circumstances. The main thrust of their argument was that the coming into being of the inclusive government had brought about change which now warranted the granting of bail to the three (3) respondents.

The State resisted the application on the basis that the formation of the inclusive Government did not constitute any changed circumstances as this had always been a burning issue before both KARWI J and OMERJEE J. The State further argued that the alternative charge had nothing to do with the formation of the inclusive Government as it did not constitute a crime against the State. It was further pointed out that KARWI J's finding to the effect that the applicants were likely to interfere with investigations had nothing to do with the formation of the inclusive Government.

The respondent's argument found favour with HUNGWE J in consequence whereof he ruled that the formation of the inclusive Ggovernment constituted a changed circumstance warranting the granting of bail to the applicants. He therefore granted the three (3) applicants bail on specified stringent conditions.

Aggrieved by that determination, the State invoked the provisions of section 121 of the Criminal Procedure and Evidence Act [Chapter 9:07] which provides, among other things, that:

“121 Appeals against decisions regarding bail

(1) Subject to this section and to subsection (5) of s 44 of the High Court Act [Cap 7:06], where a judge or magistrate has admitted or refused to admit a person to bail -

(a) The Attorney-General or his representative, within seven days of the decision; or

(b) The person concerned, at any time; may appeal against the admission or refusal or the amount fixed as bail or any conditions imposed in connection therewith.

(2) An appeal in terms of subsection (1) against a decision of -

(a) A judge of the High Court, shall be made to a judge of the Supreme Court;

(b) A magistrate, shall be made to a judge of the High Court.

(3) A decision by a judge or magistrate to admit a person to bail shall be suspended if, immediately after the decision, the judge or magistrate is notified that the Attorney-General or his representative wishes to appeal against the decision, and the decision shall thereupon be suspended and the person shall remain in custody until -

(a) If the Attorney-General or his representative does not appeal in terms of subsection (1) -

(i) He notifies the judge or magistrate that he has decided not to pursue the appeal; or

(ii) The expiry of seven days; whichever is the sooner; or

(b) If the Attorney-General or his representative appeals in terms of subsection (1), the appeal is determined.

(4) An appeal in terms of subsection (1) by the person admitted to bail or refused admission to bail shall not suspend the decision appealed against.

(5) A judge who hears an appeal in terms of this section may make such order relating to bail or any condition in connection therewith as he considers should have been made by the judge or magistrate whose decision is the subject of the appeal.” …,..

The State now seeks leave to appeal such that if the application is successful it will have the effect of suspending the order of HUNGWE J until the appeal is determined or the respondents are granted bail by the appeal Judge.

It is always difficult to preside over a case determined by a fellow judge of the same Court. Fortunately, my lot is made lighter in that I am not being asked to determine the correctness or otherwise of my colleague's judgment. All I am being asked to do, though not an easy task, is to determine the applicant's prospects of success on appeal as determined in the case of Rex v Baloi 1949 (1) SA 523 (AD) which held that in determining whether or not to grant leave to appeal in a criminal case the trial Judge must, both in relation to questions of fact and law, direct himself specifically to the enquiry of, “whether there is a reasonable prospect that judges of Appeal will take a different view.”

The granting of bail involves an exercise of discretion by the court of first instance.

It is trite that an appellate court will not interfere with the exercise of discretion by a lower court or tribunal unless there is a misdirection. It is not enough that the appellate court thinks that it would have taken a different course from the trial court. It must appear from the record of proceedings that there has been an error made in the exercise of discretion such as that the trial court acted on a wrong principle; allowed extraneous or irrelevant consideration to affect its decision or made mistakes of fact or failed to take into consideration relevant matters in the determination of the question before it. See Barrows & Another v Chimponda 1991 (1) ZLR 58 (S); Aitken & Another v Attorney General 1992 (1) ZLR 249 (S).

During the week beginning 13 April 2009, HUNGWE J was in South Africa, scheduled to return about a week later. Before leaving for South Africa, we had agreed to swap duties.

This matter came to me as an application for leave to appeal against his order granting bail to the first three respondents under case number B427-9/09.

In the normal run of things, such applications are determined by the presiding judge. I, however, considered the application to be so urgent such that it could not wait for the return of HUNGWE J. There being no objection to my presiding over the matter, and considering it proper, I agreed to preside over the matter.

I initially heard the application on 14 April 2009, and it was postponed to 15 April 2009. The case was heavily contested and the preparation of the judgment painstaking. Conscious of the need to determine the matter in the shortest possible time, I worked overtime but only managed to complete writing my judgment on 16 April 2009, and it was delivered on 17 April 2009.

What this means is that it took me a day to prepare judgment.

While preparing judgment, I was oblivious of any dias inducia or deadline. If there was one, no-one brought it to my attention. I would have issued my order with reasons to follow.  All along, I was of the honest view that as the court was seized with the matter this interrupted the running of time against the applicant as is the case with prescription.

The three respondents, I am told, were released on 17 April 2009 on the basis that the seven day period prescribed by section 121 of the Criminal Procedure and Evidence Act [Chapter 9:07] had expired on 16 April 2009 without the applicant having lodged its appeal in the Supreme Court.

This is an appeal against the magistrates' court decision refusing the applicant bail.

In an appeal to the High Court against the grant, or refusal, of bail by a magistrate, the High Court can interfere in the magistrate's decision only if there was an irregularity, or misdirection, or if the magistrate exercised his, or her, discretion so unreasonably, or improperly, to vitiate the decision – S v Ruturi (2) 2003 (1) ZLR 537 (H)...,; S v Chikumbirike 1986 (2) ZLR 145 (S)...,; and Aitken & Anor v AG 1992 (1) ZLR 249 (S)...,.

During the hearing at the magistrates' court, his legal practitioner battled to paint a picture of the appellant as an established businessman backed by a family. Although the magistrate did not disagree, he/she, however, held that his business was tainted with criminal activities, as evinced by his several other cases against him. For the record, the appellant has the following allegations -

1. CRB 148/06 – further remand refused on 28 September 2006.

2. CRB 970/09 – further remand refused.

3. CRB 393/09 – he is on bail of US$100=.

4. CRB REG/09 – trial has not commenced.

Not a record a businessman would be proud of. From the record of the magistrate, he has defaulted twice on one of the pending cases.

Was there a misdirection by the magistrate?

The magistrate, in his/her ruling, attributed CRB 146/05 to the appellant. It is common cause that this was an error as this case refers to someone else. This error, however, does not make a difference as the magistrate did not even refer to CRB REG 35/09 (and CRB 970/09) supra.

Apart from this, I do not find fault in the magistrate's exercise of his/her discretion. He/she rightly found that there is a propensity of committing similar offences. The appellant has not been exemplary in attending court.

This is an appeal against the granting of bail by a magistrate sitting at Kwekwe on the 9^th day of October 2009.

It is the appellant's argument that the presiding magistrate erred by granting the respondents bail in light of the seriousness of the allegations they are facing. The appellant further argued that in view of the evidence against them, they are likely to abscond if granted bail.

In my mind, it is the question of a possible abscondment which is a major determining factor in this matter.

The first respondent was caught red-handed with copper conductors. He will have to give a convincing explanation for his unlawful possession. In the event of him giving an unsatisfactory explanation, conviction is inevitable. In the event of a conviction, he, together with Accused 2, no doubt, will be incarcerated for a long time.

Therefore, the long term imprisonment will no doubt induce them to abscond. If this occurs, the interests of justice will be frustrated and defeated.

In my mind, this is a clear case where the respondents should not have been admitted to bail.

By granting them bail, the learned trial magistrate did not properly apply his/her mind to the facts before him/her.

On 11 January 2010 I dismissed the applicant's application for bail pending trial on the grounds that there were no changed circumstances warranting the granting of bail.

He now seeks to appeal against my decision to the Supreme Court.

For that application to succeed he must show, on a balance of probabilities, that there are reasonable prospects of success.

A perusal of the record of proceedings shows that the applicant keeps on regurgitating and recycling the same old tired arguments which have been rejected by both this court and the Supreme Court in judgment numbers HH07-10 and SC40-09.

The mere fact that the trial magistrate died before completing the trial can hardly be said to be a reasonable circumstance warranting the granting of bail in view of both courts' findings that if granted bail the applicant is likely to abscond. Given the circumstances of this case, the provision of surety is unlikely to change that position.  

Having regard to the fact that the Supreme Court has the final say in all matters of law I find that there are no reasonable prospects of success on appeal.

The respondents were placed on remand on charges of public violence as defined in section 36 of the Criminal Law (Codification and Reform) Act [Chapter 9:23]. The magistrate at Nyanga, before whom they appeared, admitted them all to bail under specified conditions. Counsel for the State then immediately advised the court a quo that the State intended to appeal against the decision in terms of section 121 of the Criminal Procedure and Evidence Act [Chapter 9:07].

This is the appeal against the decision of the magistrate.

The applicant is the Director of two duly registered real estate companies, Pride Real Estate and Ascent Real Estate. He is alleged to have fraudulently sold a residential Stand in Mount Pleasant Heights for US$15,000= sometime in 2007 and converted the proceeds to his own use.

Investigations revealed that the applicant has a similar pending case under CRB4634/11. He is also facing an additional charge of fraudulently faking his qualifications to gain registration as an estate agent.

The presiding magistrate denied the applicant bail on the basis that he has a propensity of committing fraud and therefore was likely to commit similar offences if granted bail. It was, however, argued on the applicant's behalf that the current offence was not committed while he was on bail.

I take the view that the time at which the current offences were committed is irrelevant in determining whether or not the applicant has a penchant of committing offences of a fraudulent nature. The facts placed before the presiding magistrate quite clearly establish that the applicant has an inclination towards committing fraudulent acts in the course of his business. That being the case, the magistrate can hardly be faulted for determining that the applicant is not a good candidate for bail.

It is accordingly ordered that the application be and is hereby dismissed.

On 23 March 2011, this court granted the respondents bail pending trial. The applicant seeks to protest that judgment in the Supreme Court. This is an application for leave to appeal in terms of section 44 of the High Court Act [Chapter 7:06]…,.

It is trite that the approach to adopt when considering an application for leave to appeal should not be based on whether an appeal is arguable or not but on its prospect of success. In other words, the test to be applied when considering an application for leave to appeal is whether the applicant has a reasonable prospect of success on appeal - R v Baloi 1949 (1) SA 523 (AD) and S v Mutasa 1988 (2) ZLR 4 (SC)…,.

I will now consider whether the applicant has a reasonable prospect of success on appeal.

For a start, this court should guard against passing a vote of confidence in its judgment. The issue is whether there is reasonable prospect of the Supreme Court arriving at a different judgment from the same facts. This is an appeal against the granting of bail by this court. It is trite that in this regard that the power of the Supreme Court to interfere with a decision of this court in a bail application is rather limited. It may only interfere where the High Court committed an irregularity or misdirection, or where the manner in which it exercised its discretion was so unreasonable as to vitiate the decision made - S v Ncube 2001 (2) ZLR 556 (S). This court will now apply these principles to the facts of this case.

The applicant is relying on misdirection.

The charge is indeed treason - a serious offence. The question is whether the Supreme Court may reasonably arrive at a decision that the respondents may commit similar offence i.e. inciting members of the public to revolt and remove the Government by unconstitutional means. I will consider the issues raised by the applicant in this application in turn.

The appellant is facing charges of fraud (i.e. three counts) as defined in section 136 of the Criminal Law (Codification and Reform) Act [Chapter 9:23]. The modus operandi in all the matters seems to be more or less similar.

The appellant is a Managing Director of Sable Logistics, a company that does clearing of imported goods and is based in South Africa. The appellant received money for clearing and transporting the complainant's consignment from South Africa. He did not clear the goods and did not transport them to Zimbabwe. Instead, he fraudulently converted the money into his own use.

The applicant did all this when he was out of bail on a similar matter.

On 15 September 2011, the appellant applied for bail pending trial before a Bulawayo magistrate.  The learned magistrate determined that the appellant was not a good candidate for granting of bail and consequently denied him bail.

This is an appeal against this finding of the magistrate.

The appeal is opposed by the respondent on the ground that the magistrate exercised his discretion properly and there was no misdirection. Further, it cannot be said that the exercise of the discretion by the magistrate defies reason and common sense or is characterized by misdirection. In S v Makamba SC30-40, it was held that such an appeal against a refusal to grant bail is an appeal in a narrow sense. The powers of the appeal court to interfere with the judgment of the lower court are limited to a finding of an unreasonable exercise of court a quo's discretion with the resultant effect of a substantial miscarriage of justice.

In casu, the learned magistrate pointed out that the appellant committed three serious charges of fraud. The penal clause evinces that fraud is a serious offence. The monies involved in these offences are substantial and as alluded to above, the same modus operandi was used to dupe the complainants into parting with their monies. The systematic dealing and wheeling with the complainants betrays a criminal element. In my view, the court a quo did not err in its finding that looking at the nature of the charges and the strength of the case for the prosecution the appellant was likely to abscond and not stand trial.

The three respondents are being charged with contravening section 25(1)(b) as read with section 25(2) of the Public Order and Security Act [Chapter 11:17] (POSA) and contravening section 37(1)(b) of the Criminal Law Code [Chapter 9:23].  Alternatively, they are charged with contravening section 33(2) of the Criminal Law Code [Chapter 9:23].

The penalty for breaching section 25 of the Public Order and Security Act [Chapter 11:17] is a fine not exceeding level 12 or imprisonment for a period not exceeding 1 year or both. The penalty for breaching section 37(1)(b) of the Criminal Law Code [Chapter 9:23] is a fine not exceeding level 10 or imprisonment for 5 years or both. That of contravening section 33 of the Criminal Law Code [Chapter 9:23] is a fine not exceeding level 6 or imprisonment for a period not exceeding 1 year or both.

The respondents were arrested on 5 December 2011 when they presented themselves to the police.  They appeared on initial remand at Gwanda Magistrates' Court on 7 December 2011 and were admitted to bail. They were ordered to pay a bail deposit of US$50=.

Immediately after being granted bail, the appellant invoked the provisions of section 121(1) of the Criminal Procedure and Evidence Act [Chapter 9:07] giving notice of his intent to appeal to this court against the judgment of the Magistrates' Court granting the respondents bail. That way, the appellant succeeded in keeping the respondents in custody where they have remained until now.

Section 121 of the Criminal Procedure and Evidence Act [Chapter 9:07] provides:-

“1. Subject to this section and to subsection (5) of section 44 of the High Court Act [Chapter 7:06], where a judge or magistrate has admitted or refused to admit a person to bail –

(a) The Attorney General or his representative, within 7 days of the decision; or

(b) The person concerned, at any time,

may appeal against the admission or refusal or the amount fixed as bail or any conditions imposed in connection therewith.

2. ...,.

3. A decision by a judge or magistrate to admit a person to bail shall be suspended if, immediately after the decision, the judge or magistrate is notified that the Attorney General or his representative wishes to appeal against the decision, and that decision shall thereupon be suspended and the person shall remain in custody until –

(a) If the Attorney General or his representative does not appeal in terms of subsection (1) –

(i) He notifies the judge or magistrate that he has decided not to pursue the appeal; or

(ii) The expiry of seven days, whichever is the sooner; or

(c) If the Attorney General or his representative appeals in terms of subsection (1), the appeal is determined.”

The appellant noted an appeal to this court, as notified, on the following grounds:

“(a) The court a quo erred in not giving sufficient weight to the fact that the respondents know the source of the CDs in question. Their release would result in further production and distribution of the material which is the foundation of all 3 counts.

(b) The court a quo erred by not imposing/attaching any other condition to the bail thereby (sic) the respondents are at liberty to abscond, interfere with witnesses and commit similar offences.”…,.

Following a full hearing of the bail application, the court a quo reasoned as follows:-

“It is trite law that where the State elects to oppose bail on the basis that the bail applicant is a flight risk, then as with other grounds for opposing bail, a bald assertion is not enough. The court was guided on this by Supreme Court judgment in the case of State v Learnmore Jongwe 2002 (2) ZLR 209 (S). In terms of this judgment, the court has considered the character of the charges against accuseds and the penalty provision; will also consider the apparent strength of the State case.  Clearly, up to now there is no evidence that the accuseds are likely to run away and not stand trial. In other words, they have not so far conducted themselves in such a way that it can be reasonably concluded that should they be given bail they will try to run away and not stand trial….,. The State alleges the accuseds may further distribute some CDs if released on bail and that these CDs which have similar content to those in question are in Harare. This is a mere suspicion by the State that since Accused 2 and 3 brought CDs to Gwanda from Harare there must be more where the others came from. The police, in more than two weeks, have not made a single move to recover them. The court would not accept this as a ground to refuse accuseds bail.”

The court a quo also considered the fact that the matter was brought for remand after the police had “compiled a full docket; meaning all witnesses have had statements recorded and the issue of them being interfered with by the accused does not arise.”

I have already made reference to the fact that the penalty for all the charges preferred against the respondents is, first and foremost, a fine. It is trite law that where a statute provides for a penalty of a fine, and an alternative penalty of imprisonment, the sentencing court must give effect to the fine first.  Imprisonment is always reserved for extremely serious breaches or repeat offenders – AG v Ndlovu & Ors HB159-10…,. The above excerpt of the judgment of the court a quo shows that it was alive to the penalty likely to be visited upon the respondents if convicted. Surely, where a bail applicant is likely to be sentenced to a fine, any risk of abscondment is completely non-existent.

The first ground of appeal in the matter suggests that the appellant has an apprehension that the respondents are likely to commit further offences if granted bail. The court a quo considered that issue and concluded that it was “a mere suspicion” not supported by fact. The appellant had an opportunity, at the first instance, to lead evidence to sustain his apprehension that offences may be committed in future. He did not take advantage of that opportunity, contenting himself with placing reliance on the public prosecutor's unsubstantiated “say so” from the bar. That did not find favour with the court which dismissed the argument.

The second ground of appeal, relating to the decision not to impose bail conditions against interference with witnesses, is regrettably without merit either. The court a quo took into account the fact that investigations had already been completed and that there was no chance of interference whatsoever given that statements had been recorded from witnesses. Submissions made before that court to that effect were not challenged whatsoever by the prosecution. For that reason, the findings of the court a quo were proper.

It has not been shown that there was any misdirection on the part of the court a quo in admitting the respondents to bail and in not imposing stringent conditions to the bail. Quite to the contrary, the record of proceedings clearly illustrates that the court a quo applied its mind sufficiently to all the relevant factors and came to the conclusion that the respondent should be admitted to US$50= bail and nothing more.

The grounds of appeal which the appellant relies upon are spectacularly devoid of merit.

Section 121 of the Criminal Procedure and Evidence Act [Chapter 9:07] gives the appellant power to veto the grant of bail to an accused person.

It accords the appellant a discretion to prevent the release of a person who has been granted bail in situations where he intends to appeal that decision. To the extent that it interferes with the liberty of a person who has been admitted to bail, that discretion should be exercised judiciously because the legislature, in its wisdom, entrusted the appellant with huge powers.

For that reason, it is unacceptable for any representative of the Attorney General to shoot up the moment bail is pronounced and invoke section 121 of the Criminal Procedure and Evidence Act [Chapter 9:07] without applying his/her mind to the basis for such invocation. I have said that there is no merit in the grounds for appeal which do not show any misdirection at all on the part of the court a quo. In fact, those grounds are legendary by their lack of merit. One is therefore left wondering whether the appellant's representative did apply his mind at all. 

The abuse of section 121 of the Criminal Procedure and Evidence Act [Chapter 9:07] to keep persons in custody who have been granted bail has tended to bring the administration of justice into disrepute.  It must be discouraged by all means and the time has come to announce to law officers prosecuting on behalf of the Attorney General that section 121 of the Criminal Procedure and Evidence Act [Chapter 9:07] should be invoked only in those situations where there is merit in the appeal. Admitting a person to bail is the judicial discretion of the magistrate or judge. An appeal court can only interfere with that discretion where it is shown that there was a misdirection or that the discretion was exercised injudiciously. Whichever way, persons who have been properly granted bail should not be kept longer in custody merely as a way of punishment. That is an improper exercise of the discretion given to the Attorney General by section 121 of the Criminal Procedure and Evidence Act [Chapter 9:07].

In the present case, even if the respondents are convicted, they are likely to be visited with a fine.  Therefore, the seriousness of the offence or lack of it, leads to the conclusion that a moderate bail deposit is called for. This is what the court a quo ordered, and, in my view, there is absolutely nothing wrong with that.

Accordingly, I order as follows; that:

1. The appeal be and is hereby dismissed.

2. The decision of the magistrate to grant the 3 respondents bail pending trial in the sum of US$50= stands.

3. The said US$50= should be deposited by the respondents to the Assistant Registrar of the High Court, Bulawayo.

The respondent is facing a charge of contravening section 31(b)(ii)(c) of the Criminal Law Code, that is, publishing or communicating false statements prejudicial to the State. It being alleged that on 14 November 2010 he published, in the Standard Newspaper, a story that the police had cancelled their promotional examinations to allow retired officers and war veterans to take up posts in the police force.

In the alternative, he is charged with criminal defamation, in breach of section 96(i)(a) and (b) of the Criminal Law Code, in respect of the same article.

He appeared on initial remand before a magistrate and applied for bail pending trial which was opposed by the State. In opposition, the State led evidence from the investigating officer, Detective Assistant Inspector Bhoora, whose evidence was to the effect that the State feared that the respondent will abscond given the seriousness of the offence. His only other reason for opposing bail was that it had not been easy to arrest the respondent as the police had gone looking for him at his work place and found him absent. He, however, conceded that the respondent had voluntarily surrendered himself to the police in the company of his lawyer when he heard that the police were looking for him. Detective Assistant Inspector Bhoora also alluded to the fact that the respondent's co-accused, the Editor of the Standard, one Never Matanhire was still at large suggesting that if the respondent was admitted to bail, he will also run.

The trial magistrate was not impressed by the State's reasons for opposing bail which she promptly rejected. On the fear of abscondment, she concluded as follows -

“On the point of the accused being a flight risk that point does not stand because the accused person surrendered himself to the police in the presence of his defence. If accused really wanted to flee the jurisdiction he would have done so soon after having heard that Dumisani Sibanda had been interviewed and accused was supposed to surrender himself to the police for questioning.”

Regarding the seriousness of the offence as a ground for opposing bail, the trial magistrate observed -

“The second point of the seriousness of the offence is not a good enough ground to refuse an accused person bail if not supported by other reasons or grounds for denying accused person bail.”

Having satisfied itself that the respondent was a good candidate for bail, the court a quo granted him bail on the following conditions:

1. That he pays a bail deposit of US$100=.

2. That he resides at House Number 7547 Pumula North until the matter is finalised.

3. That he does not interfere with State witnesses.

Aggrieved by that bail ruling, the Attorney General has appealed to this court on the following grounds:

“(i) That the Magistrate erred in not considering the seriousness of the offences the Respondent is charged with, with the attendant terms of imprisonment upon conviction coupled with the fact that the respondent's actions are likely to lead to loss of confidence in the police force by the general public.

(ii) The Magistrate erred in failing to appreciate that the above reasons could be enough inducement for the Respondent to abscond.”….,.

The last part of the first ground of appeal betrays the real reason why this appeal has been launched and why section 121 of the Code was invoked.

To say that the respondent's actions are likely to lead to loss of confidence in the police force by the general public - even before the respondent has been convicted - not only negates the presumption that an accused person is innocent until proven guilty, it also shows an improper desire to penalise the respondent by incarceration before he has been tried.

I am unable to find any misdirection in the magistrate's finding that there was no risk whatsoever of abscondment. She arrived at that conclusion, correctly in my view, having regard to the fact that the respondent had surrendered himself to the police signifying his desire to stand trial. I therefore come to the inescapable conclusion that this appeal is clearly without merit and borders on abuse of process betraying an improper motive of penalising the respondent before he has been tried and convicted.

Accordingly, it is ordered as follows:

1. That the appeal be and is hereby dismissed.

2. That the decision of the magistrate to grant the respondent bail pending trial stands to wit, that the respondent is granted bail on the following conditions;

(a)  He deposits a sum of US$100= with the Clerk of the Magistrates Court, Bulawayo.

(b) He resides at House Number 7547 Pumula North, Bulawayo until the matter is finalised.

This is an appeal by the Attorney General against the decision of the fifth respondent who granted bail pending trial to the four (4) accused persons.

The four accused persons appeared before a magistrate for remand. They are facing two counts of stock theft. They applied for bail pending trial. The magistrate granted them bail of $150= each and imposed reporting conditions and an order that they continue to reside at a given address and surrender travel documents. This was despite opposition to their being granted bail by the Attorney General.

The Attorney General has now appealed against that grant of bail.

This is an appeal against refusal of bail pending appeal….,.

In an appeal of this nature, it is the magistrate's decision in the court a quo to deny the appellant's bail pending the prosecution of his appeal which should be attacked. The case of S v Malujwa 2003 (1) ZLR 275 (H) is illustrative. It was said that;

“In appeals of this nature the approach to be adopted is looking at whether the magistrate misdirected himself when he refused bail. The appeal should be directed at the judgement of the court a quo. It is the judgement of the court a quo that the appeal must attack.”

It is clear that for the appellant to succeed in an appeal of this nature, it should be shown that the magistrate committed an irregularity or a misdirection or exercised his discretion so unreasonably or in an improper manner to such an extent that the decision cannot be upheld. See S v Ruturi HH23-03.

I find no misdirection or any irregularity in the manner the court a quo dismissed the application for bail pending appeal. In fact, having fully considered the facts of this matter, I have no doubt in my mind that this appeal is not only doomed to fail but is totally misplaced to such an extent that it amounts to an abuse of the court process. The appellant's conduct in making such frivolous applications and appeals simply reinforces the view that he is unwilling to subject himself to the orders of this court. To say the appeal lacks merit is simply an understatement.

I am disturbed that the appellant is prepared to lie and mislead this court on how the proceedings were held in this court a quo solely for purposes of justifying this frivolous appeal. The record of proceedings is clear that the proceedings were held in terms of section 271(2)(b) of the Criminal Procedure and Evidence Act [Chapter 9:07] which procedure is designed to ensure that an accused's plea of guilty to the charge is a clear and unambiguous admission of the charge preferred and the essential elements of the charge. This was a simple matter which the appellant could not have possibly failed to appreciate. The appellant was well aware that a maintenance order of US$800= had been awarded as against him in 2011 in respect of his four (4) children. The appellant cannot possibly purport not to know that he did not fully comply with the order. The appellant is therefore aware of the arrears. It is disingenuous for the appellant to try and argue that he was not aware of the duty just like any other law abiding citizen of the country to obey the law - especially a clear and explicit court order. The record of proceedings clearly shows that specific questions relevant to the essential elements of the offence of non-compliance within the provisions of section 23(1) of the Maintenance Act [Chapter 5:09] were put to the appellant and he gave clear, specific and unambiguous answers. It is foolhardy for the appellant to believe he can now woodwink this court by ascribing different meaning to clear answers he gave in a language he fully understands. The court a quo was therefore correct to dismiss the application for bail pending appeal as it was premised on falsehoods and totally lacked merit.

I find no misdirection in the court a quo's decision to dismiss this application for bail pending appeal.

This is an appeal against the decision of the Provincial Magistrate stationed at Harare on 22 January 2014 in which he dismissed an application by the appellant for bail pending appeal….,.

I am satisfied that the court a quo was alive to the factors to be considered in dealing with an application for bail pending appeal which are:-

(a) Prospects of appeal succeeding.

(b) Likelihood of absconding in light of the sentence imposed.

(c) Liberty of the individual.

(d) The likely delay before the appeal can be heard.

(e) Any other relevant factors.

See S v Dzawo 1998 (1) ZLR 365 and S v Manyange 2003 (1) ZLR 21 (H).

In dealing with an appeal of this nature, I am guided by what I believe is now one of often-cited cases of S v Malunjwa 2003 (1) ZLR 275 (H): whether the trial magistrate misdirected himself when he refused bail. This court can only interfere with the decision of the court a quo if it is shown that an irregularity or misdirection has been committed or that the court a quo unreasonably or improperly exercised its discretion. See S v Ruturi HH23-03.

The judgment by the court a quo is well reasoned. The reasons for sentence are very lucid. I agree that no issues of law per se arises in deciding whether the accused's guilt has been proved beyond reasonable doubt. That issue is a factual one to be determined on the credibility of the witnesses.

The charge is clear – that the appellant instructed Masara and the Investigation Officer not to detain the suspect in cells. Is this allegation proved beyond reasonable doubt on the facts to an extent that there are no prospects of success on appeal?

The State called the complainant, Batsirai Mupindu, Investigation Officer, Sergeant Benjamin Mabhawu (retired), Assistant Commissioner Mangoma and Chief Superintendent Alisha Nyamupaguma. The appellant gave evidence and called one CID detail Fiyero Masara and Inspector Sithembele Mhlanga.

I do not intend to deal with the evidence in detail but to look at the critical issue of whether credible evidence was led to prove the charge and determine prospects of success in respect of this conviction.

The complainant, throughout his evidence, said he did not interact with the appellant. All he referred to were telephone conversations he witnessed, coincidentally on all material times when the telephone was put on loud speaker, first, by an unnamed Constable who first recorded his statement and that it is the suspect who mentioned the appellant's name. On the second occasion, he said when the suspect came to CID Serious Fraud Squad and released, Masara told the complainant and the Investigation Officer that Masara had released the suspect on the instructions of the appellant hence the complainant raised the complaint with Officer in Charge Bamala. On the third occasion, the complainant said when Sergeant Benjamin Mabhawu (retired), the Investigating Officer, was recording the warned and cautioned statement from the suspect and changed to now indicate that the matter was civil the complainant protested and the Investigating Officer, Sergeant Benjamin Mabhawu (retired) took him to Fiyero Masara's office where Fiyero Masara told the complainant, in presence of the suspect, to agree to a payment plan by the suspect as per the instruction of an  unnamed boss or bosses of Fiyero Masara. The complainant said he refused and returned to CID Fraud Section offices the next day and that the Investigation Officer, Sergeant Benjamin Mabhawu (retired) told him that the suspect's telephone was unreachable. The complainant said the suspect later came at 1400hrs and that Officer In Charge Bamala asked why the suspect was not detained in cells but the Investigation Officer, Sergeant Benjamin Mabhawu (retired), said he had been instructed not to detain the suspect - without stating who had instructed him. The complainant was told to return the next day for court. The complainant was unhappy hence he approached Chief Superintendent Alisha Nyamupaguma who then called the appellant (speaker on loud) and asked the appellant if he had instructed CID officers not to detain the suspect. The complainant said the appellant did confirm such an instruction and that the suspect was his brother in law.

Is this confirmed by Chief Superintendent Alisha Nyamupaguma?

It is not confirmed in the manner the complainant said.

Chief Superintendent Alisha Nyamupaguma said when he called the appellant it is the complainant who had said the appellant had instructed the Investigation Officer not to detain the suspect. He said the appellant's response was that he had only talked to the Investigation Officer that the suspect was not a problem as he would attend to CID officers if required. The context of that conversation was not adduced from Chief Superintendent Alisha Nyamupaguma. All Chief Superintendent Alisha Nyamupaguma said: is that what caused him to call the appellant was the report the complainant made to him implicating the appellant. He said he himself believed that the appellant gave such an instruction because he gave assurance that he knew the suspect and that this suspect would turn up if required. His evidence does not materially corroborate the complainant on the material issue of whether the appellant admitted issuing such an instruction or that the suspect was the appellant's brother in law. The complainant said when the suspect failed to turn up, the Investigation Officer, Sergeant Benjamin Mabhawu (retired), assured him he would but he did not. He said he suggested to flight an advertisement in the newspaper but Sergeant Benjamin Mabhawu (retired) refused saying his unnamed bosses would not accept it. This caused the complainant to approach Assistant Commissioner Mangoma.

Again, according to the complainant, Assistant Commissioner Mangoma spoke to the appellant with speaker on loud (Assistant Commissioner Mangoma could not confirm or deny that). The complainant said the appellant confirmed to Assistant Commissioner Mangoma that the suspect was his brother-in- law who was now embarrassing him and should be arrested.

Did Assistant Commissioner Mangoma confirm this?

He does not seem to confirm this.

Assistant Commissioner Mangoma said it is the complainant who came to him alleging that the appellant had caused the release of the suspect. This prompted him to call the appellant and the appellant told him the suspect had visited the appellant's offices at one point and that the appellant had referred him to CID offices. Assistant Commissioner Mangoma said all he told the appellant was that the suspect should be charged in both his representative and individual capacity. He also gave the same instruction to Chief Superintendent Alisha Nyamupaguma. Assistant Commissioner Mangoma, under examination, denied that the appellant confirmed the suspect was his brother in law but that he was easy to locate. He did not confirm that the appellant admitted instructing anyone not to detain the suspect. All he said (hearsay) was that he was told (without revealing names) that the appellant's instruction was: “Mufana wangu iyeye musamuisa muchitokisi” (my acquaintance do not detain him). He was not probed further on this.

The Investigation Officer, Sergeant Benjamin Mabhawu (retired)'s evidence was that on the first day he was looking for the suspect with the complainant in Southerton he was called by his senior, Fiyero Masara and told the suspect was at the offices. He returned to the office and Fiyero Masara told him he had released the suspect who would return the next day (5/10/12). Investigation Officer, Sergeant Benjamin Mabhawu (retired) then met the suspect on 8/10/12, interrogated him, and he produced a company resolution saying he was a representative of the company but the Investigation Officer, Sergeant Benjamin Mabhawu (retired), would have none of that. He proceeded to charge him in his personal capacity, and, while recording a warned and cautioned statement, his senior, Fiyero Masara, came and said he should charge the company not the suspect and Fiyero Masara had an invoice of the said company “Jolly Juice”. Investigation Officer, Sergeant Benjamin Mabhawu (retired) said Fiyero Masara further instructed him that after recording the warned and cautioned statement the Investigation Officer, Sergeant Benjamin Mabhawu (retired), was to release the suspect and later call him to attend court.

The Investigation Officer, Sergeant Benjamin Mabhawu (retired), said the complainant previously had protested on the non-detention of the suspect so he told his superior, Fiyero Masara, to explain all this to the complainant – the non-detention and release of the suspect. Investigation Officer Mabhawu said Fiyero Masara told the complainant that;

(i) That the suspect would be released pending finalisation of the matter.

(ii) That it was the police's prerogative to charge the suspect in a representative capacity and not the complainant's prerogative to advise police what to do.

(iii) That, in the presence of Investigation Officer Mabhawu, the complainant and the suspect, Fiyero Masara said all  this after which he told all of them to leave his office and for Investigation Officer, Sergeant Benjamin Mabhawu (retired),  to comply with Fiyero Masara's instruction.

The Investigation Officer, Sergeant Benjamin Mabhawu (retired), said the complainant was not happy about Fiyero Masara's conduct and he went to CID Headquarters to complain after which Senior Officers Chawatama and Assistant Commissioner Mangoma told the Investigation Officer, Sergeant Benjamin Mabhawu (retired), to charge the suspect in his individual capacity but he did not because he had released the suspect on Fiyero Masara's instructions and the suspect never returned. Investigation Officer, Sergeant Benjamin Mabhawu (retired), said when the appellant called him on his phone to say the matter between the complainant and the suspect was civil and that they should deal with the suspect fairly without detaining him the, Investigation Officer, Sergeant Benjamin Mabhawu (retired), had already released the suspect on Fiyero Masara's instruction.

The Investigation Officer, Sergeant Benjamin Mabhawu (retired), does not, in my view, corroborate the complainant's evidence or support the charge. Why is that so?

(a) On 5/10/12 he said it is Fiyero Masara who released the suspect.

(b) There is debate whether the appellant called the Investigation Officer on 5/10/12 only as per the appellant or on 8/10/12 as per the Investigation Officer - but that is not relevant in my view.

(c) What the Investigation Officer confirms, under examination, is that the release of the suspect was before the appellant's call and at the instruction of Fiyero Masara.

(d) The Investigation Officer made it clear that it is Fiyero Masara who should explain the non-detention and release of the suspect because the appellant only called the Investigation Officer after the release.

(e) The Investigation Officer seems, therefore, to exonerate the appellant on the material aspect of the charge.

My conclusion is that there are indeed prospects of success on appeal in view of the nature of evidence I have alluded to….,.

My view is that there are prospects of success on appeal in respect of the conviction. It is for this reason that the appellant is not likely to abscond but rather await the hearing of the appeal and have all issues ventilated. I am inclined to lean towards the liberty of the appellant. The effective sentence is nine (9) months and the appeal may be heard well after nine (9) months (or within 6 months considering remission). If the appeal succeeds then the appellant's victory would be pyrrhic and academic.

In the result, it is ordered that;

1. The appeal be and is hereby upheld.

2. Bail pending appeal be and is hereby granted to the appellant.

3. Appellant is to deposit a sum of (US$500=) with the Clerk of Court, Harare Magistrates Court.

This is an appeal against refusal of bail pending trial based on the allegation that the trial court misdirected itself in dismissing the application for bail without offering the appellants, who were not legally represented, an opportunity to be heard. The relief that the appellants seek is the setting aside of the refusal to admit them to bail and their admission to bail on the following terms:

“IT IS ORDERED THAT THE APPELLANTS:

1. Pay the sum of US$50= each to be deposited with the Clerk of Court, Harare Magistrates Court.

2. Reside at their given addresses until the matter is finalized.

3. Not interfere with witnesses.

4. Report once a week on Fridays between 6am to 6pm at Chitungwiza police station until the matter is finalized.“

The appellant is the pastor of his own church based in Marlborough, Harare. He was convicted by the Harare Magistrates Court on 3 February 2014 of four counts of rape and one count of contravening section 26 of the Censorship and Entertainment Control Act [Chapter 10:04] i.e. possession of pornographic material.

He was sentenced to a term of 50 years imprisonment with 10 years suspended on condition of good behaviour. He has since appealed to the High Court against his conviction and sentence.

That appeal is pending.

The appellant also applied to the High Court, as a court of first instance, for bail pending appeal. His application was dismissed. He now appeals against that decision in terms of section 121 of the Criminal Procedure and Evidence Act [Chapter 9:07].

The court a quo found that the evidence of the complainants, in relation to three of the four counts of rape, was credible in material respects. The court also found that the complainants' reports of the alleged rapes were voluntarily made and that, although the delays in making those reports were lengthy, the reasons given for those delays were plausible. Moreover, the sentences imposed by the magistrate, in respect of the rape counts, were appropriate.

As regards the censorship offence, the court a quo found that the evidence adduced as to the possession of obscene material was sound and that the appellant had no lawful excuse for his possession of that material. However, the sentence imposed for that offence was probably defective as the magistrate had advanced no reasons for sentence on that count.

In the event, the court a quo held that the appellant generally had no prospects of success on appeal and dismissed his application for bail. The court also held that there had been no violation of his constitutional rights to liberty and a fair trial.

The principal ground of appeal herein is that the Magistrates Court did not properly analyse the evidence before it and that, therefore, the case, on appeal, was arguable. Moreover, this cursory analysis of the evidence violated the appellant's constitutional rights.

Additionally, the High Court erred in disregarding the effect of the magistrate's mistaken references to cases dealing with mentally defective victims of rape. The High Court also erred in finding plausible explanations for the inordinate delays in reporting the alleged offences. Again, the reports were made in circumstances showing a likelihood of their having been made in response to leading, inducing, or intimidating questions.

Having regard to all of the foregoing, the central issue for determination in this matter is whether the court a quo erred or misdirected itself in finding that there were no prospects of success on appeal from the decision of the Magistrates Court.

The test to be applied in this regard is relatively uncomplicated: Is the appeal “reasonably arguable and not manifestly doomed to failure?” See State v Hudson 1996 (1) SACR 431 (W).

The main point taken by counsel for the appellant is that the learned magistrate did not evaluate the evidence and assess the credibility of witnesses on the rape charges (Counts 3, 7, 8 and 9). He thereby erred in accepting the evidence of a single witness without adequate analysis in respect of each Count.

Count 3 relates to Precious Kapfumvuti (Precious).

Her evidence was that she was raped on several occasions during the period stretching from 2007 to 2013, having succumbed to the appellant's exercise of authority rather than physical force.

It is submitted, for the appellant, that, her assertion of having been subjected to indoctrination cannot be sustained. She understood the nature of the sexual acts that she engaged in and the appellant's influence could not have deprived her of the capacity to give her informed consent. Moreover, her explanation for having reported the alleged rapes at a late stage is totally unreasonable. She could have reported the matter to various people over the years and after she left the appellant's premises in 2013. It is further submitted that her misrepresentation of certain biblical passages that she relied upon while giving evidence in court rendered her veracity questionable.

In short, she willingly subjected herself, sexually, to the appellant as an integral part of worshipping him and then later changed her position after talking to others.

Counsel for the respondent submits that the appellant stood in the position of being a guardian over Precious Kapfumvuti. She received counselling and religious teachings from him, including the notion that a master could do as he willed with his servant. The subjective effect was that she believed what she was told by the appellant about his authority and that differences between them should not be taken to court for fear of her being placed in the hands of Satan. It is further pointed out that she did report her first rape to a fellow congregant but no assistance was forthcoming. Thereafter, she was always accompanied or guarded either by the appellant's principal wife or by his brothers. She therefore remained silent out of fear and eventually escaped after realizing that what the appellant was doing to her was wrong.

Count 7 pertains to Winnie Sakahuhwa (Winnie).

Counsel for the appellant submits that she was aware of the appellant's reputation before she went to stay with him in December 2011. Nevertheless, she allowed herself to be sexually intimate with him. In effect, she consented to sexual intercourse because of his authority and understood sex with him as being necessary to create a bond between them. Moreover, her account of one of their sexual encounters is physically improbable in terms of their respective bodily positions. She admits to having denied any sexual assault when queried by at least three other people and did not even confide in her mother after police investigations had commenced. Additionally, her mother's evidence does not corroborate that of Winnie Sakahuhwa and the former could not explain why the latter did not confide in her. Again, Winnie did not make any report to the representatives of Child Line who attended her school for counselling.

For the State, it is submitted that Winnie Sakahuhwa was warned by the appellant not to make any report because she would then be placed in the hands of Satan. She genuinely believed his teachings. She did not tell her mother anything about her sexual assaults because her mother suffered from hypertension and she did not want her to be over-stressed. Furthermore, she did not report her predicament to anyone else because the appellant claimed that the police belonged to him. She only reported the matter to the police after learning of his arrest and realising that he was not invincible.

Counts 8 and 9 relate to Hazvinei Samanyanga (Hazvinei).

As is correctly pointed out by counsel for the appellant, the court a quo entertained considerable doubt as to the propriety of the appellant's conviction on Count 9.

The learned judge found that it was possible that she may have been raped on the first occasion (Count 8) as her evidence was credible on that score. However, she appears to have acquiesced to sexual intercourse on the subsequent occasions (Count 9), having voluntarily returned to the appellant's residence during weekends.

Moreover, she spent several months in South Africa before reporting the matter to the police when they contacted her in connection with Precious Kapfumvuti.

These are matters that were not adequately interrogated by the Magistrates Court.

Counsel for the respondent submits that Hazvinei Samanyanga's evidence, on Count 8, shows that she was forcibly raped on the first occasion and that the appellant was correctly convicted on that Count. He concedes, however, that her conduct in respect of Count 9 was inconsistent with the absence of consent, particularly as she continually returned to the appellant's residence of her own accord.

Count 10 pertains to the appellant's unlawful possession of two obscene DVDs.

There is no doubt that the appellant was properly convicted on this Count.

At the hearing of this appeal, counsel for the appellant quite correctly abandoned the technical point raised in his heads of argument as to the propriety of inspecting the material in question after the appellant was arrested.

As regards the concurrent sentence of four (4) months imprisonment imposed by the learned magistrate, the court a quo highlighted the obvious misdirection of the magistrate in failing to provide any reasons for sentence.

In any event, as was accepted by counsel for the appellant, this misdirection has been rendered academic and irrelevant by the fact that the appellant has already served four (4) months in prison following his conviction on 31 January 2014.

As regards the credibility of witnesses, the general rule is that an Appellate Court should ordinarily be loathe to disturb findings which depend on credibility.

However, as was observed in Santam BPK v Biddulph (2004) 2 ALL SA 23 (SCA), a court of appeal will interfere where such findings are plainly wrong.

Thus, the advantages which a trial court enjoys should not be over-emphasised. Moreover, findings of credibility must be considered in the light of proven facts and probabilities.

In the instant case, the learned magistrate convicted the appellant on four out of the total nine counts of rape. He rejected the testimony of three complainants and acquitted the appellant in respect of the five counts pertaining to them.

With respect to the three complainants presently under consideration, his assessment of their credibility is not as detailed as might have been expected.

Nevertheless, I am not persuaded that any of his critical findings of credibility can be said to be manifestly wrong in light of the proven facts and probabilities of this case.

I am inclined to agree with the State that he correctly analysed the subjective effect of the appellant's behaviour and teachings on the complainants.

Admittedly, in so doing, he erroneously cited case authorities revolving around victims of rape who are mentally disordered or incapacitated and their capacity to consent to overtures and acts of sexual intercourse. However, as was correctly noted by the court a quo, the magistrate's reference to these cases was designed to show that the complainants were not freely consenting individuals.

His misquotation did not go to the root of the convictions and does not, in my view, constitute a fatal misdirection.

In the court a quo, the learned judge elaborated “the subjective nature of religious dogma” in more cogent terms.

To paraphrase and summarise his findings, the complainants were subjected to frequent indoctrination in the notions of total separation and submission to authority. They were not allowed to fraternise with their relatives and were conditioned to believe that matters of church should not be discussed with outsiders. The appellant displayed a pattern of predatory behaviour, characterised by rampant sexual perversion, manipulating and luring the complainants to accept and endure his deceptively benign patriarchal authority.

As was eloquently observed by Justice DOUGLAS in United States v Ballard 322 US 78 (1944), quoted by both of the courts below, religious doctrines and beliefs cannot be subjected to the rigours of legal proof.

I would take this sentiment further to opine, in the circumstances presented by this case, that the quasi-mystical force of religious dogma might overwhelm its conscripts and devotees to the point where it operates to vitiate and negate any meaningful consent to sexual abuse and exploitation by their spiritual masters.

Taking a broad conspectus of the facts and probabilities in casu, it appears to me that the complainants, having been enmeshed within the overpowering cocoon woven by the appellant, unwittingly succumbed to his sexual advances and predations. Thereafter, constrained by fear and misconception, they remained taciturn for several years and only reported their respective ordeals after appreciating the full nature of their sexual bondage.

To sum up, it must be accepted that there are certain deficiencies in the State case.

Nevertheless, I take the view that none of the grounds of appeal raised in this case is entirely sustainable.

Apart from the conviction on the second charge pertaining to Hazvinei Samanyanga (Count 9) and the sentence imposed in respect of the possession of obscene materials (Count 10), I am satisfied that the appellant has no prospects of success on appeal and that his appeal is doomed to failure.

In that event, he will remain subject to a prison term totalling 40 years, with a period to be determined suspended on condition of good behaviour.

The above conclusion does not necessarily end the matter.

An issue that was raised in the court a quo, but not addressed in its judgment, is the possibility of the appellant absconding in the event of being granted bail. I think it appropriate to deal with this aspect for the sake of completeness.

Counsel for the appellant submits that the appellant is unlikely to abscond because he has huge family responsibilities. Moreover, he is prepared to offer his main residence as security for bail.

Counsel for the respondent counters that the appellant will be induced to abscond by the presence of another charge of rape that is pending against him and because of the 40 years sentence imposed in respect of Counts 3, 7, 8 and 10.

I note that the pending charge arises from the same period but was deferred because the complainant in that matter had fallen pregnant. In any event, the appellant has denied that charge.

As was highlighted in Manyange v The State HH01-03, there is a clear distinction between the principles governing the grant of bail pending trial and those relating to bail pending appeal.

In the former situation, the presumption of innocence, which resides within the constitutionally guaranteed right to liberty, operates in favour of granting bail unless there are positive reasons for refusal.

In the latter situation, on the other hand, the presumption of innocence is inoperative because the accused is a convicted and sentenced offender. The accused must go further than showing that he has prospects of success on appeal. He must establish that there are positive grounds for granting bail and that the grant will not endanger the interests of justice.

In this regard, the public perception is an integral factor to be taken into account. Where the grant of bail would result in a public outcry, the courts should be slow to grant bail in order to safeguard the integrity of the justice delivery system: see Gardner v The State HH60-08.

The possibility of public outrage is something that I am not in a position to assess without any compelling evidence in that regard.

What is more significant in casu is that the appellant has not proffered any positive grounds for allowing him to proceed on bail.

The existence of a huge familial entourage, comprising 11 wives and 32 children, is a condition of his own making and does not really advance his claim to bail.

Moreover, he has failed to satisfactorily demonstrate his prospects of success on appeal.

Apart from this, there is nothing else to commend his right to liberty.

In my view, the prospect of a protracted prison term, coupled with his fresh experience of post-trial incarceration, affords abundant incentive for him to abscond.

In all the circumstances, I am amply satisfied that the appellant is not a good candidate for bail.

For all of the foregoing reasons, the appeal must fail and it is accordingly dismissed.

This is an appeal against the decision of NDOU J granting the respondent bail pending trial.

After hearing submissions by counsel, the appeal was dismissed with no order as to costs. I indicated that reasons for judgment would be handed down in due course.  

These are the reasons.

In granting bail, the High Court ordered that –

1. The respondent should deposit US$2,000= with the Registrar of the High Court, Bulawayo;

2. The respondent should reside at Number 15, 14^th Avenue, Woodvale, Bulawayo, until the matter is finalised;

3. The respondent should report at Bulawayo Central Police at the CID Law and Order three times a week on Mondays, Wednesdays and Fridays between 6am and 6pm;

4. The respondent should surrender his passport to the Registrar of the High Court, Bulawayo;

5. The respondent should not interfere with any State witnesses or evidence;

6. The respondent should not leave a forty kilometre radius of Bulawayo Post Office without the leave of a Bulawayo magistrate;

7. The respondent should not attend political gatherings.

The Attorney-General appealed against the High Court determination upon the following grounds:

"(a) The court a quo did not give due weight to the State's fears that the respondent was likely to pursue his agenda through unconstitutional means. This fear is founded on the premise that –

(i) Thousands of fliers are said to be awaiting distribution of Mthwakazi Liberation Front;

(ii) These fliers have not been recovered by the police;

(iii) The respondent, once released on bail, is likely to cause them to be released to members of the public;

(iv) That the respondent has a pending case of a similar nature, i.e. contravening s 19(1)(a) of POSA [Cap 11:17], Regional Court Bulawayo Number CRB 71-2/04 HB No.33731/04 wherein he circulated the 'fourteen page document' wherein he was advocating for the creation of the 'Province of Matabeleland by the Ndebele-speaking people fighting with spears and arrows against the Government and Shona speaking-people';

(v) That it is not in the interests of justice and State security to admit them to bail;

(b) The learned court a quo misdirected itself in dismissing the totality of the messages in the fliers as not being treasonous and therefore insinuating that the case was not serious. It is not an element of the crime of treason that the people who received the fliers acted on them or not or whether they took them seriously or not. The messages in the fliers have the potential to incite people to rise or revolt against a constitutionally elected Government."

The facts of this case are aptly set out in the respondent's Heads of Argument and may be summarised as follows;

The respondent, jointly with two co-accused persons, was charged with the crime of treason as defined in section 20(1)(b) of the Criminal Law (Codification and Reform) Act [Chapter 9:23] (hereinafter referred to as "the Code").

The circumstances leading to the charge, as set out in the Request for Remand Form 242 (hereinafter referred to as 'Form 242') are that:

"On March 2011, at Office 3, Princess Court, Park Mansion, Bulawayo, the accused persons conducted an executive meeting together with seven others who are still at large. During the meeting, they arrived (at) and agreed on ways of influencing people to rise and demonstrate against the Government which would result in creations (sic) of a separate State of (the) Republic of Mthwakazi. (The) accused agreed to distribute fliers of which (sic), amongst others, had the following message 'rukani njengabantu buse Ethiopia, Sudan, Egypt and Tunisia. Ngabantu labo njengathi belegazi bo' (literally translated to mean 'rise up like the people of Ethiopia, Sudan, Egypt and Tunisia. They are people like us and have blood as well.'"

It was further alleged that:

"1. All three accused were found in possession of Mthwakazi Liberation Front fliers and calendars.

2. There are minutes of the meeting in which (the) accused persons and others agreed to distribute fliers.

3. Pamphlets were recovered from accused number one."

The respondent and his co-accused appeared for initial remand at the Bulawayo Magistrate's Court on Tuesday 8 March 2011. They objected to and challenged the State's request for remand. By a ruling of magistrate John Masimba, delivered on Friday 11 March 2011, the respondent and his co-accused were placed on remand, in custody, at Khami Maximum Prison, pending trial.

The respondent and his co-accused applied for bail pending trial at the High Court, Bulawayo. The State opposed the granting of bail. The High Court granted bail.  The terms and conditions of admission to bail pending trial, granted by NDOU J, on 24 March 2011, are set out above.

The appellant invoked section 121 of the Criminal Procedure and Evidence [Chapter 9:07] upon the handing down of the judgment. The appellant thereafter filed an application for leave to appeal against the judgment in terms of section 44 of the High Court Act [Chapter 7:01]. The application for leave was opposed by the respondent and his co-accused.

NDOU J dismissed the State's application for leave to appeal against the granting of bail to the respondent's two co-accused. He, however, granted leave to appeal against that part of the judgment granting bail to the respondent pending trial.

I have already set out above the grounds of appeal.

Essentially, this Court is being asked to determine whether NDOU J misdirected himself in the following respects –

(a) By failing to give due weight to the State's fears that the respondent was likely to pursue his agenda of removing the Government through unconstitutional means. Put differently, by rejecting the contention by the State that the respondent is likely to commit similar offences if granted bail;

(b) By dismissing the messages in the fliers as not being treasonous and therefore not serious.

The power of this Court to interfere with the decision of the court a quo in an application for bail is limited to instances where the manner in which the court a quo exercised its discretion is so unreasonable as to vitiate the decision made. See S v Ncube 2001 (2) ZLR 556 (S).  

This is an appeal against the refusal of bail pending appeal by a magistrate sitting at Bulawayo following the conviction of the appellant on a count of fraud involving a sum of $21,300=.

This is an appeal against the refusal of bail in terms of section 121(1)(b) as read with section 121(8)(b) of the Criminal Procedure and Evidence Act [Chapter 9:07] (“the Act”), or, alternatively, with Rule 67(1)(2) and (3) of the Supreme Court Rules, 2018….,.

Rule 6 of the High Court of Zimbabwe Bail Rules S.I.109 of 1991 provides as follows:

(1) An appeal in terms of section 111 of the Criminal Procedure and Evidence Act [Chapter 9:07] by a person aggrieved by the decision of a magistrate on an application relating to bail or the entering by him into recognizances, shall be noted by filing with the Registrar a written statement setting out —

(a) The name of the appellant; and

(b) The appellant's residential address; and

(c) If the appellant is employed, his employer's name and address and the nature of his employment; and

(d) Where the appeal is brought against the decision of a magistrate before the appellant has been convicted —

(i) The offence with which the appellant is charged; and

(ii) The court by which and the date on which the appellant was last remanded; and

(iii) The court criminal record book number, if that number is known to the applicant; and

(iv) The police criminal record number of the case, the name of the police officer in charge of investigating the case and the police station at which he is stationed, if those particulars are known to the applicant; and

(e) Where the appeal is brought against the decision of a magistrate after the appellant has been convicted and sentenced —

(i) The offence of which the appellant was convicted and the sentence that was imposed; and

(ii) The court or courts which convicted the appellant and imposed sentence upon him; and

(iii) The court criminal record book number, if the number is known to the applicant; and

(iv) The date or dates on which the applicant was convicted and sentenced;

(f) Where the appeal is brought against a refusal by a magistrate to grant bail —

(i) The grounds on which it was refused, if the grounds are known to the appellant; and

(ii) The date on which it was refused; and

(g) Where the appeal is brought in relation to any recognizance or condition thereof —

(i) The terms of the recognizance or condition concerned; and

(ii) The date on which the magistrate required the recognizance to be entered into or imposed the condition, as the case may be; and

(h) The grounds on which the applicant seeks release on bail or the revocation or alteration of the recognizance or condition, as the case may be.”..,.

Rule 6 of the High Court of Zimbabwe Bail Rules, S.I.109 of 1991…, is applicable to the refusal of bail or the challenge to recognizance set by a magistrate when affording an accused person bail….,.

An appeal against the refusal of bail or the giving of recognizance is provided for under section 121 of the Criminal Procedure and Evidence Act [Chapter 9:07]. That section provides:

“121 Appeals against decisions regarding bail

(1) Subject to this section, where a judge or magistrate has admitted or refused to admit a person to bail —

(a) The Prosecutor-General or the public prosecutor, within forty-eight hours of the decision; or

(b) The person concerned, at any time; may appeal against the admission to or refusal to bail or the amount fixed as bail or any conditions imposed in connection with bail.

(2) An appeal in terms of subsection (1) against a decision of —

(a) A judge of the High Court, shall be made to a judge of the Supreme Court;

(b) A magistrate, shall be made to a judge of the High Court.

(3) Where a judge or magistrate has admitted a person to bail, and an appeal is noted by the Prosecutor- General or public prosecutor under subsection (1), the decision to admit to bail remains in force unless, on the application of the Prosecutor-General or public prosecutor, the judge or magistrate is satisfied that there is a reasonable possibility that the interests of justice may be defeated by the release of the accused on bail before the decision on appeal, in which event the judge or magistrate may suspend his or her decision to admit the person to bail and order the continued detention of the person for a specified period or until the appeal is determined, whichever is the shorter period.

(4) An appeal in terms of subsection (1) by the person admitted to bail or refused admission to bail shall not suspend the decision appealed against.

(5) A judge who hears an appeal in terms of this section may make such order relating to bail or any condition in connection therewith as he considers should have been made by the judge or magistrate whose decision is the subject of the appeal.

(8) There shall be no appeal to a judge of the Supreme Court from a decision or order of a judge of the High Court in terms of paragraph (b) of subsection (2), unless the decision or order relates to the admission or refusal of admission to bail of a person charged with any offence referred to in -

(a) Paragraph 10 of the Third Schedule; or

(b) The Ninth Schedule in respect of which the Prosecutor-General has issued a certificate referred to in subsection (3b) of section thirty-two; in which event subsections (3) to (7) shall apply to such appeal.”