Artwell Nyakudya v The State

The applicant was convicted on his own plea of guilty of contravening s 89 of the Postal and Telecommunications Act [Chapter 12:05]. He stole 3 kgs of telecommunications copper cables from the corner of Chelmsford and Aberdeen Road in Avondale, taking advantage of cables exposed to the ground by Harare City Council workers who were repairing water pipes. He was seen stealing by someone who alerted police. He admitted to the magistrate that he had no consent from Telone to take the cables, intended to deprive Telone permanently of the cables, and knew his actions were unlawful. He was sentenced to the mandatory 10 years imprisonment. He explained that he was unemployed and wanted to use the cables to make baskets to fend for his family. The magistrate found this did not amount to special circumstances. He successfully applied for condonation of his late filing of appeal and then sought bail pending appeal.

• Whether the applicant was convicted on an improperly constituted charge under s 89(4) of the Postal and Telecommunications Act
• Whether the applicant had prospects of success on appeal sufficient to warrant bail pending appeal
• Whether personal hardship constitutes special circumstances justifying departure from the mandatory minimum sentence
• Whether the magistrate properly imposed the mandatory minimum sentence of 10 years imprisonment
• Whether positive grounds existed for granting bail pending appeal

The application for bail pending appeal was dismissed. The applicant must prosecute his appeal while serving his sentence.

The binding legal principles established are: (1) An applicant for bail pending appeal must establish positive grounds for granting bail and that such bail will not endanger the interests of justice - the decision cannot be based solely on reasonable prospects of success on appeal; (2) Where an accused has been convicted and sentenced, he is not as of right entitled to liberty and must prove his entitlement taking into account the interests of justice and integrity of the justice delivery system; (3) The granting of condonation for late filing of appeal does not automatically justify granting bail pending appeal; (4) Section 89(4) of the Postal and Telecommunications Act [Chapter 12:05] encompasses theft of telecommunications infrastructure, including taking possession of stolen cables, and a conviction is properly constituted where an accused admits to stealing and taking possession of telecommunications cables; (5) Personal hardship and unemployment do not constitute special circumstances justifying departure from mandatory minimum sentences under s 89 of the Postal and Telecommunications Act.

The court observed that prosecutors and courts are generally loathe to deny an applicant condonation unless it is manifestly unwarranted, and that reasons for granting condonation generally hinge on the explanation tendered for the delay, the length of the delay and a preliminary assessment of prospects of success even if remote. The court also commented that this was in reality an appeal occasioned by the harshness of the mandatory minimum sentence as opposed to any misdirection in findings or the law on the part of the magistrate, suggesting sympathy for the applicant's circumstances but recognizing the court's duty to uphold legislative intent regarding mandatory sentences.

This case is significant in Zimbabwean jurisprudence (note: this is a Zimbabwean case, not South African) for clarifying the legal principles applicable to bail pending appeal applications. It reinforces that: (1) condonation for late filing of appeal does not automatically entitle an applicant to bail pending appeal; (2) the onus is on a convicted person to prove entitlement to bail pending appeal by establishing positive grounds and that bail will not endanger the interests of justice; (3) personal hardship does not constitute special circumstances justifying departure from mandatory minimum sentences under telecommunications legislation; and (4) section 89(4) of the Postal and Telecommunications Act encompasses theft of telecommunications infrastructure, including taking possession of stolen cables. The case demonstrates the court's strict approach to bail pending appeal where mandatory minimum sentences have been properly imposed.