Gibson Munsaka v The State

The applicant owned Cake Walk 8 Mine while D & S Syndicate owned and operated Cake Walk 2 Mine, separated by a 50-metre stretch. A dispute arose between the parties over ownership of Cake Walk 2 Mine. On 11 September 2020, Cake Walk 2 Mine was invaded by a mob of approximately 50 people armed with axes, pick handles and crow bars. The mob was in a combative mood, shouting words threatening to kill employees. The trial court found that the applicant, also known as "Homela", was the ring leader of the gang. The applicant struck the complainant Steven Muzengeza on the head with a small axe. Three witnesses (Muzengeza, Khumbulani Patrick Madzivanzira, and Alpha Ndlovu) positively identified the applicant at the scene. The applicant was convicted of assault (count 1) and three other counts of assault, for which he was sentenced to 8 years imprisonment (2 years suspended) for count 1, and a fine of RTGS$3,000 or 6 months imprisonment for counts 2-4. The applicant appealed both conviction and sentence on 28 December 2021 and applied for bail pending appeal.

• Whether the applicant should be admitted to bail pending appeal in terms of s123 of the Criminal Procedure and Evidence Act
• Whether the applicant had reasonable or arguable prospects of success on appeal against conviction
• Whether the applicant had prospects of success on appeal against sentence
• Whether there was a risk of the applicant absconding if admitted to bail
• Whether the trial court properly identified the applicant based on witness testimony
• Whether the trial court properly rejected the applicant's alibi defence
• Whether the trial court properly applied the doctrine of common purpose under section 196A of the Criminal Law (Codification and Reform) Act

The application for bail pending appeal was dismissed in its entirety.

In applications for bail pending appeal: (1) The test is whether there is an 'arguable' case on appeal, one not 'manifestly doomed to failure', which is a lower threshold than the reasonable prospects of success test for leave to appeal; (2) The granting of leave to appeal does not automatically constitute sufficient ground for granting bail pending appeal as different tests apply; (3) The court must carefully weigh the likelihood of the accused absconding rather than serving the sentence; (4) The prospects of success on appeal and the risk of absconding are interconnected factors - the less likely the prospects of success, the more inducement there is to abscond; (5) Where an applicant has no prospects of success on appeal against both conviction and sentence, chances of absconding are very high, particularly where the effective sentence involves a substantial term of imprisonment; (6) The onus is on the applicant to show why justice requires that he should be granted bail after conviction.

The court commented on the broader context that this was "yet another crime arising from endless disputes over ownership of mines", suggesting a pattern of such disputes leading to criminal conduct. The court also observed that the proper approach should be towards allowing liberty to persons where that can be done without any danger to the administration of justice, quoting from S v Williams. The court emphasized that in evaluating prospects of success, it should not analyze the evidence in great detail lest it becomes a dress rehearsal for the appeal to follow. The court noted that the effective sentence of 5 years imprisonment (with 2 years suspended from the 8-year sentence on count 1, plus the counts 2-4 sentence) was in line with sentences meted out in similar matters, though specific comparable cases were not cited.

This case clarifies the principles applicable to bail pending appeal applications in Zimbabwe, particularly: (1) The distinction between the test for bail pending appeal (arguable case, not manifestly doomed to failure) versus the test for leave to appeal (reasonable prospects of success); (2) That the granting of leave to appeal does not automatically warrant bail pending appeal as different tests apply; (3) The interconnection between prospects of success on appeal and risk of absconding - the less likely the prospects of success, the more inducement there is to abscond; (4) The proper approach to evaluating identification evidence where multiple credible witnesses who knew the accused prior to the incident positively identify him; (5) The application of section 196A of the Criminal Law (Codification and Reform) Act regarding common purpose liability; (6) That bail will more readily be refused where the sentence imposed is a long term of imprisonment due to increased risk of absconding after the presumption of innocence has ceased to operate.