Fortune Sangu v The State

The applicant was convicted by the Provincial Magistrate in Gweru on 13 April 2016 for fraud under s 136 of the Criminal Law Codification and Reform Act. He was sentenced to 5 years imprisonment with 1 year suspended for good behavior and 2 years suspended on condition of paying restitution of USD$12,279.00 by 20 May 2016, leaving an effective sentence of 2 years. The charge related to allegations that between 2 September 2012 and 28 April 2014, the applicant advertised that he could import vehicles from the United Kingdom, and the complainant paid USD$12,279.00 for a Mercedes Benz Sprinter which was not delivered. The applicant's defense was that he was merely a facilitator who connected buyers with his brother Kevin Sengu in England, who conducted the actual vehicle import business. The applicant claimed he did not contract directly with the complainant, received no part of the purchase price, and only facilitated contact between the complainant and his brother. He offered title deeds as security pending vehicle delivery. The applicant noted an appeal on 21 April 2016 and applied for bail pending appeal on 3 May 2016.

• Whether bail should be granted pending appeal under s 123(1)(b)(ii) of the Criminal Procedure and Evidence Act
• Whether the applicant demonstrated prospects of success on appeal sufficient to warrant bail
• Whether the conviction for fraud was proper where the applicant acted as a facilitator rather than principal contractor
• Whether the sentence imposed was manifestly excessive
• Whether the restitution order was appropriate given the applicant did not personally benefit from the funds
• What constitutes appropriate bail conditions for a convicted person appealing against conviction and sentence
• What quantum of bail deposit is appropriate and not excessive in the circumstances

Bail granted pending appeal on the following conditions: (1) deposit of USD$250.00 with the Clerk of Court, Gweru Magistrates Court; (2) residence at 26 Jansen Road Sentosa Mabelreign until appeal determination; (3) reporting at Mabelreign Police Station every Friday fortnightly between 6:00 am and 6:00 pm.

In applications for bail pending appeal: (1) the presumption of innocence falls away and the onus rests on the applicant to show on a balance of probabilities why justice requires bail; (2) the court must balance prospects of success on appeal against the likelihood of absconding; (3) the appeal need not be certain to succeed, but must not be manifestly doomed to fail or must be "free from predictable failure"; (4) prospects of success on either conviction or sentence may justify bail; (5) s 50(d) of the Constitution (presumption of innocence and release unless compelling reasons exist) applies only to pre-trial bail, not bail pending appeal; (6) s 70(5)(b) of the Constitution guaranteeing the right to appeal does not address bail pending appeal, and the phrase "subject to reasonable restrictions" refers to restrictions on the right to appeal itself, not on bail pending appeal; (7) more stringent bail conditions should be imposed for bail pending appeal than for pre-trial bail, as convicted persons who have experienced imprisonment have greater incentive to abscond; (8) the quantum of bail must be determined on the facts of each case and must not be excessive, but must provide sufficient safeguard against absconding; and (9) refusing bail to an applicant later exonerated on appeal brings the administration of justice into disrepute.

The court observed that: (1) there is no mathematical formula for committing fraud; (2) prevalence of an offence is a circumstance to be considered together with other circumstances of the case and the offender's personal circumstances, and should be supported by case law or statistical data; (3) prevalence does not automatically make effective imprisonment the only suitable sentence; (4) in appropriate cases, surrender of travel documents should be imposed as a bail condition; (5) the court has absolute discretion to determine bail amounts under s 120 of the Criminal Procedure and Evidence Act, subject to the proviso against excessive bail; (6) what constitutes excessive bail cannot be determined by a rule of thumb but depends on the nature of the charge, the person of the applicant, and factors in ss 117 and 117A; and (7) convicted persons should not be allowed to "walk the streets" without just cause as this undermines public confidence in the criminal justice system, especially in serious cases.

This case provides important guidance on the principles governing bail pending appeal in Zimbabwe's post-2013 Constitution era. It clarifies that: (1) the Constitutional presumption of innocence under s 50(d) does not apply to bail pending appeal, only to pre-trial bail; (2) s 70(5)(b) of the Constitution guaranteeing the right to appeal does not itself address bail pending appeal; (3) traditional common law principles governing bail pending appeal remain applicable; (4) the test is whether the appeal has prospects of success and is not "manifestly doomed to fail" or "free from predictable failure"; (5) more stringent bail conditions are appropriate for convicted persons than unconvicted accused; (6) the quantum of bail must be determined judiciously on the facts of each case; and (7) granting bail to applicants later exonerated on appeal protects the administration of justice from falling into disrepute. The judgment also illustrates the distinction between fraud and civil breach of contract.