Moses Chewiro and Obert Musosa v The State

The two applicants, Moses Chewiro and Obert Musosa, are members of the Zimbabwe Republic Police (ZRP) stationed at Chiredzi and attached to the Masvingo Flora and Fauna Unit. They were convicted in the Magistrates Court of criminal abuse of office under s 174(1)(a) of the Criminal Law (Codification and Reform) Act, Chapter 9:23. The charge arose from allegations that on 1 February 2021, they unlawfully and irregularly released two suspects, Phillis Mufandaedza and Cynthia Mhuriro, whom they had apprehended on drug-related charges involving dagga (cannabis). The State alleged that the applicants, while driving a black Toyota Hilux motor vehicle (Registration AES 5590) fitted with GPS satellite tracking, went to Masekesa Business Centre in Chiredzi, discovered dagga at Phillis's house, apprehended both Phillis and Cynthia, but then irregularly released them and returned the illicit drugs. The applicants denied ever going to Masekesa, claiming instead they went to the Save area on that day and returned home by 7pm. They were each sentenced to 36 months' imprisonment, six months suspended for five years. They noted an appeal against both conviction and sentence and applied for bail pending appeal under s 123(1)(b)(ii) of the Criminal Procedure and Evidence Act, Chapter 9:07.

• What are the considerations for granting bail pending appeal under s 123(1)(b)(ii) of the Criminal Procedure and Evidence Act?
• What constitutes reasonable prospects of success on appeal sufficient to warrant bail pending appeal?
• When will an appellate court interfere with factual findings of a trial court?
• What is the relationship between prospects of success on appeal and risk of absconding?
• Can bail pending appeal be refused in serious cases even where there is little danger of absconding?

The application for bail pending appeal was dismissed.

The binding legal principles are: (1) In applications for bail pending appeal, the main factors for consideration are prospects of success on appeal, risk of absconding, the applicant's right to liberty, and the likely delay before the appeal is heard. (2) The onus rests on the applicant to show that justice will not be endangered by admission to bail. (3) Even where there is reasonable prospect of success on appeal, bail may be refused in serious cases notwithstanding that there is little danger of absconding. (4) An appellate court will not interfere with factual findings of a trial court unless those findings are grossly unreasonable such that no reasonable tribunal applying its mind to the same facts would have arrived at the same conclusion. (5) Prospects of success on appeal and likelihood of absconding are interrelated - the less likely the prospects of success, the greater the inducement to abscond. (6) Where prospects of success on appeal are very dim and the offence is serious, particularly involving abuse of office by police officers, bail pending appeal should be refused to maintain community confidence in the administration of justice.

The Court made several non-binding observations: (1) The moral blameworthiness of police officers who abuse their office is severe as they have a duty to uphold, not subvert, the rule of law. (2) Such conduct by police officers brings the justice delivery system in general and the image of the Zimbabwe Republic Police in particular into serious disrepute and erodes the security of the community. (3) When those entrusted with combating crime are seen to be aiding or protecting criminal elements, the fabric of society is compromised. (4) Confidence of the community in the administration of justice would be seriously eroded if persons convicted of serious crimes are seen to be roaming the streets where they have little prospects of their appeal succeeding. (5) The Court also observed technical deficiencies in the grounds of appeal, noting that the first two grounds were not proper grounds of appeal as they did not attack specific findings but related to the overall conclusion, and that the applicants had confused the names of witnesses in their grounds of appeal.

This judgment is significant because it comprehensively sets out the legal principles governing bail pending appeal in Zimbabwe, which share common law origins with South African criminal procedure. It clarifies that: (1) the onus rests on the applicant to show that justice will not be endangered by bail; (2) even where there is reasonable prospect of success, bail may be refused in serious cases notwithstanding little danger of absconding; (3) individual liberty must be balanced against the need for convicted persons to serve punishment and maintain community confidence in the justice system; (4) appellate courts rarely interfere with trial courts' factual findings unless they are grossly unreasonable; and (5) prospects of success and risk of absconding are interrelated factors. The case also illustrates the particularly serious view taken of criminal conduct by police officers who abuse their office and undermine the administration of justice. While this is a Zimbabwean case, the principles are persuasive authority in South Africa given the shared common law heritage and similar legislative frameworks governing criminal procedure.