Godfrey Mupamhanga v The State

On 24 August 2020 at number 1184 Mashakada, Dulibadzimu, Beitbridge, the applicant and eight accomplices were found in unlawful possession of a 9 x 19 mm Vector Z88 pistol with obliterated serial numbers, 11 x 9 x 19 mm live cartridges and 20 x 12 Bore live cartridges without a licence. The applicant and his accomplices reacted suspiciously upon being informed of police presence. They were convicted of contravening section 4(1) as read with section 4(2) of the Firearms Act [Chapter 10:09] on the basis of the doctrine of common purpose. The Magistrates' Court sentenced the applicant to 4 years imprisonment of which 1 year was suspended on condition of good behaviour, considering that the origins of the firearm could not be traced and it had been used in various crime scenes. The applicant noted an appeal against both conviction and sentence and applied for bail pending appeal.

• Whether the applicant had reasonable prospects of success on appeal against conviction
• Whether the trial court erred in accepting evidence regarding the recovery and identification of the firearm
• Whether the sentence imposed was disturbingly inappropriate
• Whether bail pending appeal should be granted
• Whether the trial court properly exercised its discretion in imposing a custodial sentence

The application for bail pending appeal was dismissed with costs.

In applications for bail pending appeal, prospects of success must be demonstrated. An appellate court cannot interfere with the exercise of trial court discretion unless there has been a misdirection, such as acting on a wrong principle, allowing extraneous or irrelevant considerations to affect the decision, making mistakes of fact, or failing to take into consideration relevant matters. It is not sufficient that the appellate court might have taken a different view. In appeals against sentence, the guiding principle is that sentence is pre-eminently a matter for the discretion of the trial court and should only be altered if viewed as disturbingly inappropriate. First offenders are not automatically entitled to non-custodial sentences or suspension of imprisonment.

The court noted that the trial court had properly applied the doctrine of common purpose based on the manner in which the applicant and accomplices reacted upon being told of police presence. The court observed that the trial court appropriately considered the case of S v Zawaira HH-447/13 regarding the importance of the origin of firearms and whether they were linked to other offences. The court commented that discrepancies in witness testimony regarding the specific type of firearm (Vector versus Noringo) were adequately cured by expert testimony explaining the similarity between the two types of pistols and that only an expert can state with certainty the type of firearm.

This case reinforces important principles in Zimbabwean bail law and appellate procedure, particularly: (1) the stringent test for prospects of success in bail pending appeal applications; (2) the limited grounds upon which appellate courts can interfere with trial court discretion, requiring a misdirection rather than mere disagreement; (3) the standard that sentences should only be altered if 'disturbingly inappropriate'; (4) that first offender status does not automatically entitle an accused to non-custodial sentences; and (5) the application of the doctrine of common purpose in firearms possession cases. The case demonstrates the high threshold applicants must meet when seeking bail pending appeal.