Njabulo Tshuma v The State

The applicant, a soldier with the Zimbabwe National Army, was convicted in the Regional Magistrate Court on two counts: (1) unlawful entry into premises under section 131 of the Criminal Law (Codification and Reform) Act, and (2) kidnapping under section 93(1)(b) of the Criminal Law Code. On 2 June 2015 at around 11:40 pm at Plot 954 Aussie Road, Kensington, Bulawayo, the applicant wrongfully and unlawfully entered Denis Mpofu's house by forcibly opening the door. Once inside, he picked up a 6-year-old girl who was sleeping on a sofa and fled the house. The girl screamed for help, alerting her parents who chased after the applicant. The applicant dropped the girl and fled, leaving behind a black and purple bag containing a Zimbabwe National Army pay slip, which led to his arrest. The applicant's defence was that he was drunk, had been drinking at a bar in Kensington at Njiva Lodge, fell asleep by the roadside, woke up to find his bag missing, and went home around 11 pm. He was arrested at 3 am. He claimed the allegations were fabricated due to hatred by the complainant's father. The trial court rejected his defence and sentenced him to 3 years imprisonment on count 1 and 10 years on count 2, with 5 years suspended, leaving an effective 8-year sentence.

• Whether the applicant has reasonable prospects of success on appeal against conviction and sentence
• Whether bail pending appeal should be granted
• Whether the trial court erred in admitting confession evidence and relying on identification by a single witness
• Whether the sentence imposed induces a sense of shock

The application for bail pending appeal was dismissed.

Bail pending appeal will be refused where: (1) the appeal does not have reasonable prospects of success and is manifestly doomed to fail from the outset; (2) the evidence of guilt is overwhelming; and (3) granting bail would jeopardize the interests of justice by creating a real possibility that the applicant would abscond. The test is whether the appeal is reasonably arguable - if there is overwhelming evidence of guilt and the trial court's assessment of evidence cannot be faulted, there are no reasonable prospects of success on appeal.

The court observed that where the evidence of guilt is overwhelming, there are greater chances that a convicted person might abscond. The court also noted that the applicant's story sounded unbelievable, and counsel's inability to provide a sensible explanation for the presence of the applicant's bag at the scene of the crime further undermined the defence. The court remarked that even if there were a reduction in sentence on appeal, the applicant would be unlikely to receive a non-custodial sentence given the serious nature of the offences (unlawful entry and kidnapping of a child).

This case demonstrates the application of the principle that bail pending appeal will only be granted where there are reasonable prospects of success on appeal and where granting bail will not endanger the interests of justice. It illustrates that where evidence of guilt is overwhelming and the conviction is sound, bail pending appeal will be refused regardless of the severity of the sentence. The case also shows the court's approach to assessing the credibility of defences and the weight given to physical evidence linking an accused to the crime scene.