Forward Halata Chauke v The State

On 9 September 2020, police detectives in Chiredzi, Zimbabwe received information that the applicant was in possession of raw ivory at his residence and was offering it for sale. Police teamed up with Game Rangers and Parks and Wildlife officials and raided the applicant's homestead around midnight. The homestead comprised of just one hut. During the search, two Nyala horns were recovered from inside the applicant's hut. A further search yielded raw ivory weighing 0.76 kg and 4 canine leopard teeth, all wrapped in a blue plastic hidden on the roof of the applicant's thatched hut. The applicant was convicted on 14 December 2020 of: (1) contravening s 59(2)(b) of the Parks and Wildlife Act by removing animal parts without a permit (the Nyala horns and leopard teeth), and (2) contravening s 80(1) of SI 362/90 as read with s 128(b) of the Parks and Wildlife Act for unlawful possession of ivory. At trial, the applicant admitted possessing the Nyala horns but denied possessing the leopard teeth and ivory, claiming they were found at his neighbour Timothy Mandongwe's homestead and were "planted" on him by police. His wife corroborated this defence. The applicant was sentenced to a fine of $1000 or 5 months imprisonment on count 1, and 9 years imprisonment (minimum mandatory sentence) on count 2. The applicant then applied for bail pending appeal.

• Whether the applicant had prospects of success on appeal against conviction
• Whether it was in the interests of justice to grant bail pending appeal
• Whether the trial court properly assessed the credibility of witnesses regarding where the ivory and leopard teeth were found
• Whether the applicant demonstrated a 'fighting chance' or arguable case on appeal

The application for bail pending appeal was dismissed.

In applications for bail pending appeal: (1) the presumption of innocence falls away after conviction; (2) the applicant bears the onus to show on a balance of probabilities that it is in the interests of justice to be released on bail pending appeal; (3) the court must consider prospects of success on appeal and risk of absconding; (4) prospects of success relate to whether the applicant has a 'fighting chance' or arguable case on appeal; (5) if an appeal is doomed to fail, there is no basis to admit an applicant to bail pending appeal; and (6) the risk of absconding is always high where there are no prospects of success on appeal.

The court observed that once an appeal against conviction fails, there is no legal or factual basis to challenge sentence where the sentence imposed is the minimum mandatory sentence prescribed by law. The court also noted that it would be illogical for police officers who received a tip-off about a specific individual to then plant evidence on that person while exonerating the actual culprit, particularly where the police had no prior connection to the accused. The court characterized the appeal as "simply a fishing expedition or testing the waters."

This case illustrates the high threshold required for bail pending appeal in Zimbabwe, particularly in cases involving wildlife crimes with mandatory minimum sentences. The judgment reinforces that prospects of success on appeal are critical to bail pending appeal applications, and that applicants must demonstrate an arguable case or 'fighting chance' on appeal. The case also demonstrates the courts' approach to credibility assessments in wildlife crime cases where accused persons claim evidence was 'planted' by law enforcement, and the courts' reluctance to interfere with trial courts' findings on credibility absent compelling reasons. While this is a Zimbabwean case, it reflects principles similar to those applied in South African bail pending appeal jurisprudence.