NOLLEN KAWADZA

versus

THE STATE

HIGH COURT OF ZIMBABWE

GARWE JP

HARARE, 7 June 2006

Application for bail pending appeal

Mr Simpson, for the appellant

Mr Tokwe, for the State

GARWE JP:  At the hearing of this application, I dismissed the application and gave brief reasons for my decision.  The applicant has now indicated an intention to seek leave to appeal against that decision. What follows are my brief reasons for that decision.

At the commencement of the hearing of the application I advised both counsel that I was one of the two judges who had presided over the appeal filed by the applicant against both conviction and sentence.  Both counsel advised that they had no objection to my hearing and determining the application for bail pending appeal.  I then gave both counsel the opportunity to address me.

The gist of Mr Simpson’s submission was that the Supreme Court may find it appropriate to reduce the applicant’s effective jail sentence by one year i.e. from 5 years to 4 years. Mr Simpson accepted that there is no basis for challenging the conviction for receiving stolen property knowing it to have been stolen. He further accepted that this case calls for a fairly lengthy custodial sentence.  The only basis upon which bail was being sought was that in the light of the case of Chimanga v State which Uchena J (who wrote the lead judgment) relied on, the Supreme Court may reduce the effective jail sentence by a year.

The State submitted that, as in all cases, decided cases are a mere guideline and that in the instant case there were no prospects of success on appeal.

After considering all the circumstances and the submissions by counsel I concluded that the applicant’s prospects of success on appeal were poor.  I reached that conclusion because it was not in dispute that the applicant would in any event serve a fairly lengthy jail sentence.  I found no basis, given this situation, for granting bail pending appeal.

In the famous case S v Kilpin 1978 ZLR 282 McDONALD CJ stated:

“The principles governing the grant of bail before conviction are entirely different from those governing the grant of bail after conviction and the difference is even more marked where the guilty of the accused is not in issue and the usual sentence for the offence is an effective prison sentence of substantial duration.  It is wrong that a person who should properly be in jail should be at large and nothing is more likely to encourage frivolous and vexations appeals than the attitude adopted by the magistrate in the present case…….”  

The learned judge went further and remarked at page 286 G-H:

“If what is in issue in the application for bail is not the propriety of an effective prison sentence but its length, and if the magistrate is of the opinion that the appellant might possibly be prejudiced if the appeal against sentence is not heard at an early stage, the magistrate should advise the Registrar of this court of this possibility and steps will be taken to hear the appeal without delay and within a time which will avoid any possibility of prejudice….”

Whilst it is a fact that in some instances appeals now take much longer to be heard than was the case in the past, in the present case the applicant does not stand to be prejudiced in any way.  Accepting for a moment Mr Simpson’s submission that the effective sentence may be reduced to four years and giving due allowance for the normal one third remission for good behaviour, the applicant should be able to prosecute his appeal within the effective period of imprisonment imposed on him.  In any event in the absence of a misdirection, the Supreme Court is unlikely to reduce the effective sentence from five to four years.

In all the circumstances I was not persuaded that this was a proper case for bail pending appeal to be granted.  I therefore refused the application.

Manase and Manase, applicant’s legal practitioners.

Criminal Division, Attorney General’s Office, respondent’s legal practitioners.