Elphas Ncube v The State

The appellant was convicted of fraud involving $21,300.00 in March 2014. He misrepresented to Stella Ngwenya that he was selling Plot numbers 11, 13 and 15 Sebungwe Road Richmond, Bulawayo, knowing they did not belong to him. He received payment of $21,300.00 in the presence of his lawyer. He was sentenced to 4 years imprisonment, with 1 year suspended on condition of future good behavior and 1.5 years suspended on condition of restitution, leaving an effective sentence of 18 months. The appellant had a previous conviction for similar fraud charges in 2010 where he defrauded someone by purporting to sell a house he did not own. He appealed against sentence only, arguing the court paid lip service to mitigating factors, erred in considering his 2010 conviction, and failed to consider non-custodial options like community service. The magistrate refused bail pending appeal, and the appellant appealed that refusal to the High Court.

• Whether bail pending appeal should be granted where an appellant appeals only against sentence and not conviction
• Whether prospects of success on appeal are sufficient to warrant granting bail pending appeal
• The relevance of previous convictions in determining suitability for bail pending appeal
• Whether a convicted person appealing only sentence presents a flight risk
• The principles governing bail after conviction versus bail before conviction

The appeal against the refusal of bail pending appeal was dismissed. The appellant remained in custody to serve his effective 18-month sentence.

In applications for bail pending appeal, a convicted person loses the presumption of innocence, and this is particularly significant where only sentence (not conviction) is appealed. The court must balance the likelihood of absconding against prospects of success on appeal, with these factors being interconnected - the less likely the prospects of success, the greater the inducement to abscond. Previous convictions for similar offenses are relevant in determining suitability for bail pending appeal, as they indicate an unrepentant and incorrigible criminal who poses a real danger to the administration of justice and the public. A person who should properly be in custody should not be released on bail pending appeal where prospects of success are dim, even if there is no immediate indication of propensity to abscond. The principles governing bail after conviction are entirely different from those before conviction, and nothing encourages frivolous appeals more than granting bail to persons properly belonging in custody.

The court observed that the effective sentence of 18 months imprisonment imposed by the trial court was "a mere slap on the wrist" given the substantial amount of $21,300.00 involved in the fraud and the appellant's previous similar conviction. The court also remarked that releasing the appellant to find money for restitution would be "an affront to all sense of justice" and suggested that such an exercise might involve the commission of another offense given the appellant's previous criminal behavior. The court indicated that the fact a previous conviction occurred six years earlier is only relevant in considering sentence, not in determining suitability for bail.

This case reinforces important principles in Zimbabwean criminal procedure regarding bail pending appeal. It confirms that: (1) the presumption of innocence is lost after conviction, particularly where only sentence is appealed; (2) previous convictions for similar offenses are relevant in assessing suitability for bail pending appeal and demonstrate an unrepentant criminal pattern; (3) repeat offenders are disqualified from community service; (4) courts must consider both flight risk and prospects of success in bail applications, with these factors being interconnected; and (5) persons who should properly be in custody should not be released merely to pursue appeals with dim prospects of success. The judgment emphasizes the distinction between bail before and after conviction, and the need to protect the public and the administration of justice from incorrigible offenders.