Ishmael Chokurongerwa v The State

On 30 May 2014, Archbishop Ndanga of the Apostolic Christian Council of Zimbabwe (ACCZ) led a delegation of approximately 15 people, 26 police officers, and journalists from ZBC and private media to the applicant's shrine at Budiriro 4, Harare, intending to suspend the operations of the applicant's sect over allegations of child and women abuse. The applicant, Ishmael Chokurongerwa, aged 44, was the leader of Johanne Masowe Echishanu (Madzibaba Ishmael Sect). When Archbishop Ndanga attempted to read a suspension document in English, the applicant challenged him to use Shona. When the Archbishop continued and ordered the applicant's arrest for interference, the applicant stood up and started singing a song called "Umambo wepfumo neropa" which sparked violence. Congregants charged at the delegates armed with sticks, assaulting members of ACCZ, journalists, and police officers. Nine police officers were injured, a ZBC journalist sustained fractures on both hands, and an ACCZ delegate suffered a fractured arm. A ZBC van was damaged along with camera equipment valued at US$1,350. The applicant was arrested eight months later on 2 January 2015. He was convicted by the magistrates court of contravening s 36(1) of the Criminal Law (Codification and Reform) Act [Chapter 9:23] relating to public violence and sentenced to 5 years imprisonment with 1 year suspended on good behaviour conditions.

• Whether there were reasonable prospects of success on appeal against conviction to warrant granting bail pending appeal
• Whether the court a quo misdirected itself in assessing the credibility of state witnesses
• Whether the court a quo properly considered the alibi raised by the applicant
• Whether the proceedings in CRB 5901/14 were relevant to the applicant's case
• Whether the sentence imposed induced a sense of shock

The application for bail pending appeal was dismissed.

In applications for bail pending appeal, the major consideration is whether there are reasonable prospects of success on appeal. The court must balance the interests of the administration of justice against the need to uphold individual liberty, but the presumption of innocence has fallen away after conviction. The assessment of witness credibility is within the province of the trial court, and an appeal court can only interfere with such discretion if the trial court's findings defy reason and common sense. An applicant for bail pending appeal bears the burden of demonstrating that the trial court misdirected itself in a manner that would give rise to prospects of success on appeal.

The court observed that the applicant's incorporation of proceedings in CRB 5901/14 was vague and unclear as to what specific aspects were being relied upon. The court noted that vague references to political machinations were made regarding Archbishop Ndanga but not in respect of other state witnesses, undermining the credibility of such allegations. The court commented that the incident occurred in broad daylight when visibility was very good, making mistaken identity unlikely. The court also noted that there was no plausible reason why the applicant would have failed to mention material aspects of his alibi in his defence outline, including when he left Harare, his destination, and when he returned.

This case is significant in Zimbabwean criminal law for articulating the standard for bail pending appeal applications, emphasizing that the major consideration is prospects of success on appeal and that unlike bail pending trial, the presumption of innocence has fallen away after conviction. The case also demonstrates the proper approach to assessing witness credibility on appeal and the deference given to trial courts in making such credibility findings. It illustrates the seriousness with which courts treat public violence offences, particularly those involving attacks on law enforcement officers in the execution of their duties, and reinforces that appropriate sentences must send a clear message that such conduct will not be tolerated.