Judgment No. HB 159/13

                                                                                                                                                                      Case No. HCB 267/12

PHILANI NCUBE

VERSUS

THE STATE

IN THE HIGH COURT OF ZIMBABWE

BEFORE MAKONESE J

BULAWAYO 8 & 28 NOVEMBER 2013

Mr T. Nyengera,for the applicant

Ms N. Ngwenya,for the respondent

Bail Pending Appeal

            MAKONESE J: This is an application for bail pending appeal.  The brief facts are that the Applicant was arraigned before the Magistrate Court facing nine counts of stock theft.  The State withdrew the rest of the counts after plea and applicant was convicted on counts 3, 5 & 6.  He was sentenced to undergo 27 years imprisonment.  The Applicant noted an appeal against conviction only contending that the state had failed to prove its case beyond a reasonable doubt.  The state has opposed the application for bail pending appeal on the grounds that the appeal has no prospects of success.

            I have perused the record of proceedings and note that there is evidence that the applicant sold the beasts in question to various persons.  He was given cash and other movable goods in exchange for the cattle.  The cattle were recovered from the various purchasers after the owners had positively identified their cattle.  It is not dispute that the applicant sold the beasts in question and those persons were called to court to testify.  The Applicant did not challenge the fact that the beasts had been seen in his kraal for a long time.  A police officer based at ZRP Redcliff testified that he attended at applicant’s homestead to recover the stolen cattle.  The applicant fled before an arrest could be effected.  Some of the stolen beasts were still in the applicant’s kraal.  Constable Ncube told the court that they recovered a total of 47 cattle from a number of people who all confirmed that the applicant had sold the cattle to him.  The police investigations established that applicant only had 3 beasts on his stock card.  The applicant’s defence is that he bought the cattle from one Mhlupeko who had passed away sometime in 2010.  The applicant failed to produce any clearance permits or at least agreements of sale to verify the authenticity of his claims.  The Applicant’s legal practitioner argued that it was for the State to disprove the applicant’s defence.  With respect this approach cannot be correct.  It was for the applicant to bring forward to court any witnesses who could have assisted in his defence.  The Applicant knew where the said Mhlupheko resided.  If Mhlupeko had any relations who witnessed the transactions, applicant was free to call them to testify on his behalf.  The state witnesses who bought the cattle from the applicant all said that he promised documentation for the sales which was never forth coming.

            In matters of bail pending appeal the court will always endeavour to balance the interests of the proper administration of justice against the liberty of the applicant.

            See S v BENATAR 1985(2) ZLR 205

It is a well settled principle of our law that upon conviction the onus shifts to the applicant to prove that the granting of bail pending appeal would not endanger the administration of justice.  The factors that are always taken into consideration are these:

            (a)        the risk or likelihood of the applicant absconding if granted bail pending appeal.

            (b)        the prospects of success on appeal.

            (c)        the liberty of the applicant.

I have no doubt that the applicant who has been sentenced to a long term of imprisonment would be tempted to abscond if granted bail pending appeal.  If the court were to grant the applicant bail there is very little likelihood that he would await the outcome of the appeal, regard being had to the fact the prospects of success in this matter are so remote as to be virtually non-existent.  The evidence led from the state witness simply points to the fact that applicant came into possession of a number of cattle which he later sold to his neighbours.  He only had 3 beasts in his kraal at the relevant time.  Unless the applicant was a cattle buyer, the inescapable conclusion is that he did not keep those cattle because they had been stolen.  The owners of the stolen cattle identified their cattle and recovered them from Zhombe Police.

It is a well established principle that in an application for bail following conviction and sentence, the presumption of innocence no longer applies.  The onus is on the applicant to show that he should be admitted to bail and in the absence of positive grounds for granting bail, it should be refused.

I am satisfied that the applicant has failed to discharge the onus to establish that he is a proper candidate for bail.

I must just remark here that both counsel for the State and the applicant who appeared to argue this matter seemed to have scanty detail about the record.  In fact they both admitted that they were handling the files for their colleagues.  It has now become a common tendency amongst legal practitioners to appear in court without any useful information and still insist that they be heard.  This practice does nothing to improve the legal jurisprudence in this country.  Legal Counsel who appear in court have a duty to the court, to the clients and to the judicial system to ensure that all relevant information is placed before the court.

In all the circumstances of the case the application for bail pending appeal has no merit.

The application is hereby dismissed.

Hore & Partners,Applicant’s Legal Practitioners c/o Mcijo, Dube and Partners

The Attorney General’s office, Respondent’s Legal Practitioners