Belief Dongo v The State

The applicant was charged before the Regional Magistrate's Court in Bulawayo with contravening section 60A(3)(a)(b) of the Electricity Act [Chapter 13:19]. On 12 July 2019, at a bush along Lockview Road, Bulawayo, the applicant, allegedly in the company of Bukhosi Obvious Ndebele, cut, damaged, or destroyed electricity overhead copper conductors. After a protracted trial, the applicant pleaded not guilty but was convicted and sentenced to 12 years imprisonment, with 2 years suspended on usual conditions, resulting in an effective 10 years imprisonment. The applicant noted an appeal to the High Court (HCA 114/20) against both conviction and sentence, and subsequently filed this application for bail pending appeal on 12 February 2021. During the chase, two state witnesses, Clive Ncube and Njabulo Moyo, identified the applicant as the driver of a Honda Fit (registration ADX 7665) at the scene. Clive Ncube later saw and identified the applicant at the N.R.Z. workshops and informed police. The co-accused, Ndebele, absconded after the discharge application was dismissed at the close of the state case. After the court had written the judgment, the applicant filed a notice of withdrawal dated 2 March 2021, but the court proceeded with the judgment.

• Whether the applicant has reasonable prospects of success on appeal against conviction
• Whether the applicant has reasonable prospects of success on appeal against sentence
• Whether the applicant is likely to abscond if released on bail pending appeal
• Whether it is in the interests of justice to grant bail pending appeal
• Whether the identification evidence was properly established in the absence of a formal identification parade
• Whether the trial court misdirected itself in finding that the State proved its case beyond reasonable doubt
• What weight should be accorded to dock identification evidence

The application for bail pending appeal is refused. The applicant shall remain in prison.

The binding legal principles established are: (1) In bail pending appeal applications, the two main considerations are prospects of success on appeal and likelihood of absconding, which are interconnected - the less likely the prospects of success, the greater the inducement to abscond; (2) Identification parades are generally required where the suspect is unknown or a stranger to the identifying witness, but serve no useful purpose where the witness has already independently identified the suspect in another context and informed police; (3) Dock identification is admissible evidence and the question is not admissibility but what evidential weight should be accorded to such identification, assessed using factors such as lighting, visibility, proximity, opportunity for observation, prior knowledge, and corroboration; (4) A defence outline filed under section 188 of the Criminal Procedure and Evidence Act is not evidence and cannot constitute exoneration where the person making the statement does not testify; (5) Where an accused has been convicted and sentenced to a lengthy mandatory minimum sentence, has experienced incarceration, and has poor prospects of success on appeal, there is a high probability of absconding which justifies refusal of bail pending appeal; (6) A conviction will not be set aside on appeal where the trial court properly considered all factors, the identification evidence was reliable based on multiple credible witnesses with good opportunity for observation, and the defence amounted to mere bare denial.

The court made several non-binding observations: (1) The court addressed the procedural issue of the applicant's attempted withdrawal after judgment was written but before allocation of a judgment number, stating that on the facts of this case, in view of the fact that judgment had already been written, the purported withdrawal was inconsequential - though the court did not establish a general principle on this point; (2) The court noted that the prosecution's concession that there were prospects of success on appeal was 'not well taken', suggesting that prosecutorial concessions should be carefully scrutinized and are not binding on the court; (3) The court observed that the application was considered on papers without oral argument in accordance with Practice Directive 2 of 2021 issued by the Chief Justice during the COVID-19 pandemic, implicitly endorsing this procedure as appropriate for bail applications; (4) The court stated that 'evidence may be direct or circumstantial, whatever it is, and it is its weight that matters', emphasizing the holistic approach to evaluating evidence; (5) The court noted that the fact that police arrested the applicant based on the vehicle registration number 'is of no consequence' and 'does not detract from the fact that Clive Moyo identified applicant at the N.R.Z. workshops', suggesting that the manner of initial police contact does not undermine subsequent independent identification.

This case is significant in Zimbabwean criminal procedure law for several reasons: (1) It clarifies when identification parades are necessary - distinguishing between cases where the suspect is a stranger versus cases where there is prior knowledge or subsequent independent identification; (2) It confirms that dock identification is admissible evidence and the issue is one of evidential weight rather than admissibility, following South African precedent; (3) It establishes that defence outlines filed under section 188 of the Criminal Procedure and Evidence Act are not evidence and cannot be relied upon to exonerate an accused, particularly where the co-accused absconded and did not testify; (4) It reinforces the principle that poor prospects of success on appeal increase the risk of absconding in bail pending appeal applications; (5) It demonstrates the application of Practice Directive 2 of 2021, allowing bail applications to be determined on papers without oral argument during the COVID-19 pandemic; (6) It addresses the issue of attempted withdrawal of applications after judgment has been written but before delivery, holding such withdrawal may be inconsequential.