Munyaradzi Kereke v The State and Francis Maramwidze

The applicant was convicted by the Regional Magistrates Court on one count of rape of an 11-year-old complainant (his wife's niece) pursuant to a private prosecution instituted by the complainant's legal guardian (the second respondent). He was acquitted of an indecent assault charge. The applicant was sentenced to 14 years imprisonment, with 4 years suspended on conditions of good behaviour. The conviction was based on findings that the applicant, armed with a pistol, used threats to sexually violate the complainant in violation of s 65 of the Criminal Law (Codification and Reform) Act. The High Court dismissed his appeal against both conviction and sentence, upholding the Regional Magistrate's findings. The High Court also dismissed his application for leave to appeal. The applicant then approached the Supreme Court, which granted leave to appeal on 8 July 2021. At the time of this bail application, the applicant had served over 70% of his sentence with approximately 20 months remaining.

• Whether the applicant should be admitted to bail pending appeal after conviction
• Whether the applicant demonstrated reasonable prospects of success on appeal
• Whether the applicant posed a flight risk or risk of absconding
• Whether admission to bail would prejudice the interests of justice
• The proper test and onus for bail pending appeal applications

The applicant was admitted to bail pending appeal on the following conditions: (1) payment of ZWL$500,000 to the Registrar of the High Court; (2) reporting every Friday between 0800hrs and 1700hrs at Borrowdale Police Station; (3) residence at Number 5 Lealous Gardens, Glen Lorne, Harare; (4) surrender of title deeds for two properties as surety; (5) deposit of duly executed consents from the property owners; (6) waiver of right to obtain a passport and prohibition on applying for a new passport. The Registrar of the Court was directed to transmit the order to the Registrar General.

In applications for bail pending appeal after conviction: (1) The applicant bears the onus to show on a balance of probabilities that it is in the interests of justice to be released on bail (s 115C(2)(b) Criminal Procedure and Evidence Act). (2) The proper approach is that bail will be refused in the absence of positive grounds for granting it, not that it will be granted in the absence of grounds for refusal. (3) The applicant must show reasonable prospects of success on appeal - not remote prospects but realistic, arguable prospects. (4) The court must consider cumulatively: (a) prospects of success on appeal; (b) likely delay in hearing the appeal; (c) likelihood of absconding; and (d) the interests of the administration of justice. (5) Where the applicant has served a substantial portion of the sentence (over 70%) with relatively little time remaining, and has reasonable prospects of success on appeal, the incentive to abscond is minimized. (6) Where delay in hearing the appeal is likely to result in the appeal becoming academic (sentence completed before appeal heard), this weighs in favor of granting bail where other factors are satisfied. (7) Stringent bail conditions including substantial monetary bail, property sureties, reporting conditions, and residence restrictions can adequately address concerns about flight risk.

The Court made several non-binding observations: (1) That the distinction between bail pending trial (where the presumption of innocence operates and bail is a right) and bail pending appeal (where the applicant is a convict and must show positive grounds) is fundamental. (2) That allegations of influence over the justice system must be evaluated in light of the actual facts - in this case, the successful prosecution and substantial sentence served undermined claims of such influence. (3) That having multiple wives and properties does not automatically indicate a person lacks fixed abode or is likely to abscond - in fact, such ties may reduce flight risk. (4) The Court noted that the matter arose from a private prosecution but that the State was properly cited as it has responsibility for prosecution, enforcement and discharge of criminal orders. (5) The Court observed that COVID-19 has contributed to delays in hearing appeals, which is a relevant consideration in bail pending appeal applications.

This case is significant in Zimbabwean criminal procedure law as it clarifies the test and considerations for bail pending appeal after conviction. It demonstrates the Court's willingness to grant bail even in serious sexual offence cases where the applicant has reasonable prospects of success on appeal, has served a substantial portion of the sentence, and where delay in hearing the appeal might render it academic. The case reaffirms that bail pending appeal is not a matter of right but requires the convicted person to discharge the onus of showing it is in the interests of justice to be released. It also illustrates how courts balance the competing interests of public protection, the presumption against bail after conviction, and the accused's right to prosecute an appeal with realistic prospects of success. The case is also notable for involving a private prosecution and the Court's treatment of alleged influence over the justice system.