Fredrick Ndlovu v The State

On 27 August 2021, the applicant was convicted by the Victoria Falls Magistrates' Court of unlawful possession of raw ivory in contravention of section 82(1) of the Parks and Wildlife Regulations 262/1990 read with section 128(1)(b) of the Parks and Wildlife Act (Chapter 20:14). He was sentenced to the mandatory 9 years imprisonment. According to state witnesses, Assistant Inspector Tapera Chimucheka and Nancy Mugari, they received information that Fredrick Ndlovu was selling raw ivory at the Lupinyu business area of Victoria Falls. They posed as interested buyers and arranged to meet the applicant. Upon meeting, the applicant removed two pieces of ivory from a black satchel and offered to sell them for US$200 each, later negotiated down to US$150 each. After being handed fake US$100 notes and going into a shop to get change, the applicant was arrested. In his defence, the applicant claimed the black satchel was not his and had been given to him by one Sydney Nkomo for safe keeping while Sydney went to relieve himself. The trial magistrate rejected this version as false and found the applicant had both physical and legal possession of the ivory. The applicant noted an appeal and applied for bail pending appeal.

• Whether the applicant should be granted bail pending appeal
• Whether the appeal against conviction and sentence has reasonable prospects of success
• Whether granting bail would endanger the interests of the administration of justice
• Whether the trial court erred in its assessment of evidence regarding possession of ivory

The application for bail pending appeal was dismissed.

The binding legal principle established is that for bail pending appeal to be granted, an applicant must demonstrate reasonable prospects of success on appeal. The greater the prospects of success, the more likely the court will exercise its discretion in favour of the applicant. Where the trial court's findings of fact are not demonstrably wrong and the defence presented was rejected as false, bail pending appeal will be refused. On appeal, findings of fact by the trial court are presumed correct and will only be disregarded in the absence of demonstrable and material misdirection, or if the received evidence shows such findings were clearly wrong.

The court made general observations about the right to liberty, noting that while the right to a person's liberty until proven guilty extends to an accused person who has been convicted and sentenced, this right has certain limitations. The court also commented that where reasonable prospects of success on appeal exist, the applicant should be granted liberty pending the hearing of the appeal. The judge remarked that minor contradictions in state witnesses' evidence (such as price discrepancies) do not affect the essential elements of the offence where physical and mental possession have been proven.

This case reinforces the established principles governing bail pending appeal in Zimbabwean criminal law. It demonstrates that bail pending appeal is not automatic even where an appeal has been noted, and that applicants must show reasonable prospects of success. The judgment also illustrates the application of appellate principles regarding deference to trial courts' findings of fact, particularly that such findings will only be disturbed if demonstrably and materially wrong. It confirms the high threshold for granting bail in cases involving serious offences such as wildlife crimes with mandatory minimum sentences, where the defence presented is rejected as false and prospects of success on appeal are minimal.