The two applicants were convicted and sentenced in the magistrates court for fraud as defined in s 136 of the Criminal Law Codification, Reform Act. The allegations were that the applicants, together with Tendai Kausiyo, Selfridge Bosha and Tendai Simende, unlawfully misrepresented to Beauty Evernice Mtombe (Sales Manager Northern Region Hwange) inflated prices of SADC and COMESA pads being sold by ZIMTRADE, when in fact they knew the pads were being sold at a lower price. Hwange Colliery Company suffered financial prejudice as a result of paying the inflated price instead of the actual price. The first applicant was a clerk who received requests from COMESA and raised requisitions based on prices given by the third accused (who was acquitted). The second applicant was an accounts officer whose duty was to prepare payments based on purchase requisitions. Both applicants applied for bail pending appeal.
The applicants were admitted to bail pending appeal.
In applications for bail pending appeal, the court must consider: (1) prospects of success on appeal; (2) likely delay before the appeal is finalized; and (3) risk of abscondment and other relevant factors. Where a conviction is based on circumstantial evidence but the State has failed to prove the case beyond reasonable doubt, leaving critical aspects to speculation, there are prospects of success on appeal. Where there are prospects of success on appeal, the likelihood of abscondment is minimized. Where an appeal would take considerable time and the prison term is short, it would not be in the interests of justice to have the applicant serve the full term only to succeed on appeal for academic purposes. To sustain a conviction for fraud, the State must prove that the accused made a misrepresentation knowing it to be false with intent to defraud; merely showing improper performance of duties is insufficient.
The court criticized counsel for the applicants (Mr Hashiti) for his insulting manner of analyzing the findings of the court a quo, particularly during oral submissions, stating it smacked of contempt rather than addressing substance. The court noted that counsel appeared to be attacking not only the findings of the trial court but the person of the magistrate, and that he seemed to be arguing the appeal at the bail stage rather than focusing on whether there were prospects of success.
This case demonstrates the application of the established principles for bail pending appeal in Zimbabwean criminal law. It illustrates the court's willingness to grant bail where there are reasonable prospects of success on appeal, particularly where convictions are based on circumstantial evidence with significant gaps in proof. The case also emphasizes that the State must prove fraud beyond reasonable doubt, and that merely showing improper performance of duties is insufficient to sustain a fraud conviction. The judgment reinforces the principle that it would not serve the interests of justice for an applicant to serve a full prison term before a potentially successful appeal is heard.