1
HB 104-15
HCB 52-15
XREF HCA 26-15
SINOTHILE NDLOVU
versus
THE STATE
HIGH COURT OF ZIMBABWE
MOYO J
BULAWAYO 17 APRIL AND 28 MAY 2015
K. Lubimbi for the applicant
T Makoni for the respondent
Bail pending appeal
MOYO J:
This is an application for bail pending appeal.
The applicant was convicted on her own plea of guilty to one count of stocktheft. The
trial magistrate having found no special circumstances, accordingly sentenced the applicant to
the mandatory minimum imprisonment term of 9 years.
Dissatisfied with the sentence and the failure to find special circumstances, the applicant
appealed to this court. He now seeks bail pending appeal. The appeal against the mandatory
minimum sentence is premised on the fact that the magistrate should have found that the theft of
a stray beast that applicant had kept for three years prior to rebranding it with her brand marks,
presented a temptation to the applicant who succumbed to the temptation and therefore that her
moral blameworthiness was very low.
Counsel for the applicant also argued that in fact the mischief sought to be curbed by the
legislature was cattle rustling as opposed to people who are tempted into committing stocktheft
by circumstances of possession of a stray beast.
Counsel for the applicant submitted that applicant should have been found guilty of
contravening section 114 (2) (c) of the Stock Theft Act which provides as follows:
“Any person who,
(c)
is found in possession of, or has been in possession of, livestock or its produce in
circumstances which give rise, either at the time of the possession or at any time
thereafter, to a reasonable suspicion that at the time of such possession, the
2
HB 104-15
HCB 52-15
XREF HCA 26-15
livestock or its produce was stolen, and who is unable at any time to give a
satisfactory explanation of his or her possession. ----. Shall be guilty of stock
theft----”
The penalty for an offence under section 114 (2) (c) is either a fine not exceeding level 14
or twice the value of the stolen property whichever is greater or imprisonment for a period not
exceeding 5 years or both such fine and imprisonment.
I will firstly deal with the case of S v Chikupo HH 174/14. In his submission Counsel for
the applicant stated at paragraph 5 of the bail statement that in the Chikupo (supra) case, the
Honourable Judge held that there were prospects of success on appeal where the argument on
appeal would be whether the theft of a stray beast amounts to special circumstances or not. I
would like to point out that in fact this is what the learned judge stated in that case:
“Be that as it may on the issue of special circumstances this normally involves value
judgment by the court seized with the matter. A different court may come out with a
different view. The applicant may have some prospects of success against sentence
only.”
I wish to point out that the judge did not make a specific finding on whether there were
prospects of success or not. He in fact did not go there and simply stated that this finding
involves value judgment and a different court may come to a different view and that applicant
may have some prospects of success. In my view this case does not assist in any way for the
issue of whether the theft of a stray beast may amount to special circumstances was not dealt
with by the court neither was the issue of whether in the Chikupo (supra) case applicant did have
prospects of cusses on appeal against sentence or not and the reasons for such a finding.
I am therefore not persuaded by the Chikupo (supra) case for the aforestated reasons
neither am I compelled to follow that decision as it is not a Supreme Court case.
Part of the applicant’s argument is that there should be special circumstances warranting
the imposition of a sentence other than the mandatory minimum sentence because the mischief
that the legislature sought to curb was cattle rustling.
It is my considered view that in fact as
held in the case of S v Zulu HB 174/11 the reason why the legislature came up with the
mandatory minimum penalty was the prevalence of the offence in whatever circumstances., not
cattle rustling per se.
3
HB 104-15
HCB 52-15
XREF HCA 26-15
In such an application the applicant must show positive grounds for granting bail and if
there are no such grounds then the application must be refused. See S v Tengwende and Others
1981 ZLR 445 (SC). In that case this is what the learned judge had to say:
“--- But bail pending appeal involves a new and important factor, the applicant has been
found guilty and sentenced to imprisonment. Bail is not a right. An applicant for bail
asks the court to exercise its discretion in his favour and it is for him to satisfy the court
that there are grounds for so doing.”
The proper approach is that bail should be refused where the accused’s guilt is not in
issue and a substantial term of imprisonment is the usual sentence for the offence. Refer to R v
Kilpin 1978 RLR 282 (A).
In all such applications the onus rests on the applicant to show that should she be
admitted to bail, the interests of justice will not be prejudiced. This the applicant will show by
proving to the court that there is no risk of her absconding and that there are prospects of
success. These two are intertwined in that, the brighter the prospects of success, the less the
chances of absconding, and the dimmer the prospects, the higher the risk of absconding. Refer to
S v Tengwende and others (supra).
I am of the of the considered view that in this matter the accused’s guilt is not in question
neither has the applicant sufficiently shown that the interests of justice will not be prejudiced if
she is granted bail for the simple reason that a substantial term of imprisonment is the usual
sentence. I cannot therefore exercise my discretion in applicant’s favour in these circumstances.
The application for bail pending appeal is accordingly dismissed.
Lubimbi and Partners, applicant’s legal practitioners
National Prosecuting Authority’s office, respondent’s legal practitioners