The applicant was convicted of two counts of Unlawful Entry in aggravating circumstances. Two residents in the same neighbourhood had their premises broken into on the same night (20-21 October 2020). The burglar stole three cell phones from the first complainant and a 42-inch Sony Television set from the second complainant. The burglar dropped a pink satchel containing the first complainant's cell phones and other items at the second complainant's premises. On 21 October 2020 in the afternoon, the applicant sold a 42-inch Sony TV to one Mavis Mathe. Police recovered the TV and set a trap, arresting the applicant when he came to collect the balance of the purchase price. The second complainant identified the TV through a distinctive screen mirroring feature that displayed her name "Melody Longwe". At trial, the applicant pleaded not guilty and raised an alibi defence, claiming he was in Harare at Parirenyatwa Hospital from early October until 22 October 2020. He claimed the TV he sold was his own Samsung, not a Sony. The trial court rejected this defence and convicted him on both counts based on circumstantial evidence. The applicant then applied for bail pending appeal.
The application for bail pending appeal was dismissed.
An application for bail pending appeal will be dismissed where the appeal against conviction lacks arguable merit and the appeal against sentence has no meaningful prospects of success. When considering bail pending appeal, the court must assess whether the proposed appeal has reasonable prospects of success. A conviction based on circumstantial evidence will be upheld where the circumstances reasonably exclude any other conclusion except that the accused committed the offence. An alibi defence raised for the first time at trial, without prior disclosure to investigating authorities, carries reduced credibility and weight. For repeat offenders convicted of unlawful entry in aggravating circumstances, an imprisonment sentence is unavoidable and further suspension of previously suspended sentences is inappropriate.
The court made observations about the credibility of witnesses, noting that there was no perceivable reason why state witnesses who did not know the accused prior to the incident would fabricate evidence against him. The court also commented on the applicant's attempt to dispute ownership of the Sony TV exhibit, noting that this did not lie in his mouth given that his defence was that he sold a Samsung TV, not a Sony. The court referenced the principle from R v Hlongwane 1959 (3) SA 337 regarding witnesses who fabricate their versions.
This case illustrates the application of stringent criteria for granting bail pending appeal in Zimbabwe. It demonstrates that bail will be refused where appeals lack reasonable prospects of success. The case also confirms the acceptance of circumstantial evidence in criminal cases where the circumstances exclude any other reasonable inference except guilt, and addresses the limited weight given to alibi defences raised for the first time at trial without prior disclosure to authorities.