Mbonisi Nyathi v The State

The applicant was convicted by a Bulawayo Regional Magistrate for rape as defined in section 65 of the Criminal Law (Codification and Reform) Act and sentenced to 18 years imprisonment, half of which was suspended on the usual conditions of good future behaviour. The applicant, an 18-year-old, was convicted of raping a 4-year-old child. The applicant and complainant were neighbours, and the complainant knew the applicant well. The offence took place in broad daylight at around 7 am. The complainant identified the applicant by name during trial. A second witness, Talent Ncube, who was in the complainant's company on the day of the incident, also identified the applicant as the person who took the complainant away. A medical report indicated that the complainant's hymen was torn and the doctor opined that penetration was very likely. The applicant appealed 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 applicant had reasonable prospects of success on appeal against sentence
• Whether bail pending appeal should be granted

The application for bail pending appeal was dismissed.

In applications for bail pending appeal, the presumption of innocence no longer applies, unlike in bail pending trial. Bail pending appeal should not be granted where the applicant has no reasonable prospects of success on appeal. Where an accused is properly identified by witnesses who knew him well, the offence occurred in broad daylight, and there is corroborating medical evidence, challenges to identification on appeal have no reasonable prospects of success. Issues of witness credibility are the province of the trial court.

The court observed that an 18-year sentence with half suspended for an 18-year-old offender who raped a 4-year-old child was, if anything, on the lenient side, suggesting that such offenders should not complain about such sentences. The court also noted, citing S v Kilpin, that allowing persons who should properly be in jail to be at large encourages frivolous and vexatious appeals.

This case reinforces the principles applicable to bail pending appeal in Zimbabwean criminal law, particularly that the presumption of innocence no longer applies after conviction and that bail pending appeal should not be granted where there are no reasonable prospects of success on appeal. The case also demonstrates the courts' approach to identification evidence in cases involving neighbours and acquaintances, and the severity with which courts view rape of young children in sentencing.