Kinos Muchadubwa and Artwell Chaola and Kudakwashe Chaola v The State

The three applicants were convicted in the Magistrate Court of contravening section 37 of the Criminal (Codification and Reform) Act [Chapter 9:23] - participating in a gathering with intent to promote public violence, breaches of peace or bigotry. The offence occurred on 16 January 2019 at a place called the Grid near Mverechena Business Centre, Domboshava, where a violent protest mob blocked the road with burning tyres, stones, and logs, demanding money from motorists. Each applicant was sentenced to 4 years imprisonment, with 1 year suspended for 5 years, resulting in an effective 3 years imprisonment. At trial, the applicants raised alibi defences, claiming they were at their home at Zimbiru village Domboshava at the time. The State called two Zimbabwe National Army (ZNA) witnesses who testified they were in civilian clothes observing the crowd from within, and identified the applicants by name as they participated in burning tyres and clearing roads for motorists who paid. The magistrate rejected the alibi defence and accepted the State witnesses' testimony. The applicants noted an appeal against both conviction and sentence and applied for bail pending appeal.

• Whether the applicants demonstrated reasonable prospects of success on appeal against conviction
• Whether the applicants demonstrated reasonable prospects of success on appeal against sentence
• Whether the interests of justice would be endangered if the applicants were released on bail pending appeal
• Whether the trial court properly assessed credibility of witnesses
• Whether the sentence imposed was so harsh as to induce a sense of shock

The application for bail pending appeal was dismissed.

For bail pending appeal to be granted, an applicant must satisfy two requirements: (1) the appeal must have reasonable prospects of success, and (2) the interests of justice will not be endangered if the applicant is released on bail. A bail court, while not determining the appeal itself, must assess whether the appeal is free from predictable failure or is arguable. Appeals challenging findings on credibility face significant hurdles as credibility assessment is the province of the trial court. To successfully appeal against sentence, an applicant must demonstrate that the trial court misdirected itself in its approach to sentencing - showing that a sentence is harsh is insufficient. Where an appeal lacks reasonable prospects of success, the risk of absconding is considered too high to grant bail pending appeal.

The court observed that there was no evidence on record that an identification parade was conducted at which the applicants were picked by the State witnesses, though this did not affect the outcome. The court also noted its cognizance of possible delays in finalizing the appeal and acknowledged that each applicant would be entitled to one-third remission of the effective sentence, but stated that in light of the poor prospects of success, it was proper that applicants prosecute their appeal while serving their sentence. The court also commented that suggesting a fine would be appropriate in these circumstances would constitute a travesty of justice.

This case reinforces the strict requirements for bail pending appeal in Zimbabwean criminal procedure, particularly in cases involving public violence. It demonstrates that courts will carefully scrutinize whether an appeal has reasonable prospects of success before granting bail, and that matters turning on credibility are difficult to challenge on appeal. The case also illustrates the principle that a harsh sentence alone is insufficient to ground an appeal - applicants must demonstrate a misdirection by the trial court. The case is significant in the context of public order offences and the judiciary's approach to violent protest-related crimes.