HIGH COURT OF ZIMBABWE
BULAWAYO 23 SEPTEMBER AND 22 OCTOBER 2015
Bail pending appeal
J. T. Tsvangirai for applicant
S. Ndlovu for respondent
In the High Court, an appellant was applying for bail pending his appeal against both conviction and sentence by the trial court, having been convicted of contravening s368(2) as read with s368(4) of the Mines and Minerals Act [Chapter 21:01] that is, prospecting for gold without a licence. He had been sentenced to two years, being the mandatory minimum penalty for that offence after the magistrate failed to find any special circumstances.
The issue before the court was to exercise its discretion on whether to grant bail to the appellant. The court held that in exercising the discretion on whether or not to grant bail pending appeal, the court must be guided by the prospects of success on appeal and whether there is risk that the applicant would abscond. The judge held that from the court record there was a problem with the rebuttal of the applicant’s defence in the trial court. The applicant had argued that he was carrying a pot and a lid when the police pounced, but state witnesses alleged that he carried a shovel.
The judge was satisfied that the applicant had discharged the responsibility upon him and that the court should indeed exercise its discretion in the applicant’s favour. Accordingly, the judge granted the application on condition that he deposited a sum of $100.00 with the Clerk of Court, he resided at a particular village and to report at a police station twice a week on Mondays and Fridays between 6.00 am and 6.00 pm.