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Judgment No. HB 34/15
Case No. HCB 9-10/15
ELVIS NDLOVU
and
RODRICK NDLOVU
versus
THE STATE
IN THE HIGH COURT OF ZIMBABWE
MAKONESE J
BULAWAYO 16 FEBRUARY AND 19 FEBRUARY 2015
Bail Application
Miss N. Ndlovu for the applicants
Mr W. Mabhaudhi for the respondent
MAKONESE J: The applicants were arraigned before the magistrate sitting at Plumtree facing two counts of stock theft as defined in section 114 (2) of the Criminal Law (Codification and Reform) Act [Chapter 9:23]. They were convicted and sentenced to an effective sentence of eighteen years each. The applicants have noted an appeal against both conviction and sentence. They now seek to be released on bail pending appeal.
Both applicants were legally represented during the trial. The evidence presented to court revealed that the second applicant was arrested at a roadblock at Maphisa, after police manning the roadblock observed that there had been a tempering on the brand marks on the beasts in question. Second applicant implicated the first applicant and informed the police that he was merely acting as an agent for first applicant, who was the real owner of the beasts in question.
The evidence led at trial was fairly straightforward. During the month of January 2013 the complainant penned off his cattle for grazing at Mazwi lands leaving them to graze unattended. When complainant rounded up his cattle he discovered that two beasts were missing. He made a report to the local village head and to the police. The description of the beasts intercepted at the police roadblock fitted the one given by the complainant and subsequently complainant positively identified his stolen cattle.
After a lengthy trial, the trial magistrate concluded that the state had proved its case beyond a reasonable doubt and convicted the applicants.
The first applicant claimed that the beasts in question lawfully belong to him. He claimed that he had inherited the cattle from his mother, who at the time of the offence had died. He further claimed that his late mother had acquired the beasts as payment for services rendered. He stated that his late mother was a traditional healer and charged her patients by demanding cattle for payment. The problem with the defence is that noone witnessed the transactions alleged by the first applicant. At the very least the first applicant should have led evidence to show that his defence was reasonably possibly true. A policeman based at Sun Yet Sen police station was called by the state to testify. He gave evidence to the effect that he had tried to verify the claims made by the applicants by visiting the village where the beasts were stolen. The policemen established that Hilda Nyathi was the mother of the first applicant. He also confirmed that Hilda Nyathi did not have any cattle and that she did not have a stock card. The policemen interviewed the Village head who confessed to have no knowledge of any cattle belonging to Hilda Nyathi. In any event, it later transpired during the course of investigations that Hilda Nyathi conducted her healing sessions in Bulawayo and had no rural home in that village. Hilda died at her mother’s homestead where she was buried. The dip attendant was also interviewed and denied any knowledge of cattle belonging to Hilda Nyathi.
The applicant’s defence was further complicated by the fact that neither of the applicants used their ID cards or stock cards to clear the beasts in question. They opted to use the stock card of one Diana Nyathi. At the time the cattle were transported to Bulawayo first applicant decided to send second applicant to convey the cattle. The reason he gave for not transporting the cattle himself was that he had no ID card.
It is my view that the trial court did not err in convicting the accused because of the overwhelming evidence. The applicants contend that there are bright prospects of success on appeal because the court erred in accepting the evidence of the investigating officer since some of the enquiries were made after the trial had already commenced.
In applications for bail pending appeal there are two important considerations which our courts have laid down. Bail ought to be granted pending appeal where:
(a) there are reasonable prospects of success on appeal.
(b) where there is no danger of the applicants absconding.
In the case of S v Williams 1980 (1) ZLR 466, FIELDSEND CJ, remarked as follows:
“--- the proper approach should be towards allowing liberty to persons where that can be done without any danger to the administration of justice. In my view, to apply this test properly it is necessary to put in balance both the likelihood of the applicant absconding and the prospects of success. Clearly, the two factors are inter-connected because the less likely are the prospects of success the more inducement there is on applicant to abscond. In every case where bail after conviction is sought the onus is on the applicant to show why justice requires that he should be granted bail.”
See also the case of The State v Tengende 1981 ZLR 445.
I am aware that in applications for bail pending appeal all the applicant has to show is that there are reasonable prospects of success. In otherwords, bail ought to be granted where the applicant makes out a reasonably arguable case. In the instant case there can be no doubt that the prospects of success are virtually non-existent. The second applicant was caught red-handed with the stolen beasts. The beats were destined for slaughter.
I am of the view that the applicants are not good candidates for bail pending appeal. Applicants have been sentenced to lengthy terms of imprisonment. Granting the applicants bail given the circumstances of the case would simply be an inducement for them to abscond.
In the result, the application is hereby dismissed.
Messs Cheda and partners, applicants’ legal practitioners
National Prosecuting Authority’s Office, respondent’s legal practitioners
