Brighton Dzingai Makura and Obert Taonezvi Chodokufa v The State

The applicants were convicted by the Magistrates' Court at Mwenezi of two counts of contravening s 131(1) of the Criminal Law (Codification and Reform) Act [Chapter 9:23] (unlawful entry into premises). The first count related to unlawfully and intentionally entering Chingwanga Supermarket at Neshuro on 1 May 2014. The second count related to unlawfully and intentionally entering Living Waters Shop at Neshuro Business Centre between 30 April and 1 May 2014. Each applicant was sentenced to 24 months imprisonment, with 3 months suspended for 5 years on condition of good behaviour. The convictions were based on fingerprints evidence linking the applicants to the unlawful entries. The applicants appealed against both conviction and sentence and applied for bail pending appeal.

• What are the principles applicable to applications for bail pending appeal after conviction?
• Whether the applicants demonstrated reasonable prospects of success on appeal against conviction based on fingerprint evidence?
• Whether the applicants demonstrated reasonable prospects of success on appeal against sentence?
• Whether the balance of factors favoured granting bail pending appeal in this case?

The application for bail pending appeal was dismissed.

Where bail is sought after conviction pending appeal, the onus is on the applicant to show positive grounds why justice requires bail be granted, not on the State to show why it should be refused. The applicant must demonstrate reasonable prospects of success on appeal as a threshold requirement. Even where some prospects exist, bail may be refused in serious cases. The court must balance: (1) prospects of success on appeal; (2) likelihood of absconding (which increases where prospects are weak and custodial sentences have been partially served); (3) delay before appeal; and (4) the right to liberty. Where an appeal has no reasonable prospects of success and there is inducement to abscond due to a custodial sentence imposed, the balance favours refusing bail. An appeal has prospects of success only if it is genuinely arguable and based on the evidence and facts proved at trial.

The court observed that there has been significant improvement in the time taken for appeals to be heard once records are properly prepared and availed. The court also noted that deprivation of liberty after conviction cannot be viewed in the same light as pre-trial incarceration, implying a different weight should be accorded to liberty interests in the post-conviction context. The court commented that it did not understand how an unused dynamite cartridge could be taken for ballistic examination to prove similarity to one recovered in connection with a crime, suggesting this was a fundamentally misconceived argument.

This case reaffirms the stringent principles applicable to bail pending appeal in Zimbabwe, emphasizing that after conviction the presumption shifts against bail and applicants must demonstrate positive grounds for release. It clarifies that the court examines whether an appeal has genuine prospects in the sense of being arguable, not whether it will succeed. The judgment illustrates the application of the balancing test between liberty and proper administration of justice, particularly where prospects of success are weak and custodial sentences create inducement to abscond. It also demonstrates judicial deference to trial court sentencing discretion and the high threshold for challenging sentences on appeal.