Nkanyiso Hlabangana and Dalubuhle Mnkandla and Emmanuel Sibanda v The State

The three applicants were convicted by a Regional Magistrate sitting at Gwanda on three counts of rape in contravention of section 65(1) of the Criminal Law (Codification and Reform) Act Chapter 9:23. On 3 November 2020 at approximately 19:00 hours, the complainant (a mentally challenged woman who was pregnant at the time) was on her way home from Esihlangeni Business Centre when she met the 1st and 2nd applicants near the 3rd applicant's homestead. After the 1st applicant's proposal of love was rejected, he grabbed the complainant and pulled her into the 3rd applicant's house. Inside the house, all three applicants took turns raping the complainant without her consent. The applicants forced the complainant to remain at the 3rd applicant's homestead until around 23:00 hours and threatened her with death if she revealed the ordeal. Upon arrival home, the complainant reported the incident to her young sisters, who informed their brother Elvis Tshuma, who reported the matter to police. Each applicant was sentenced to 15 years imprisonment, with 3 years suspended, resulting in an effective 12-year prison term. The applicants then applied for bail pending appeal.

• Whether the applicants should be granted bail pending appeal under section 123(1)(b)(ii) of the Criminal Procedure and Evidence Act Chapter 9:07
• Whether the applicants had reasonable prospects of success on appeal
• Whether granting bail would prejudice the administration of justice
• Whether the court a quo misdirected itself in rejecting the defence of alibi raised by the 1st and 2nd applicants
• Whether the court a quo erred in its credibility findings regarding the complainant's evidence
• Whether the sentence imposed was so severe as to induce shock

The application for bail pending appeal was dismissed.

In applications for bail pending appeal: (1) The primary consideration is whether the accused will serve his sentence if released on bail should the appeal fail, with the presumption of innocence having ceased to operate after conviction. (2) The severity of the sentence imposed is a decisive factor, as longer sentences create greater temptation to abscond. (3) While there is no onus on an accused to prove an alibi defence, an accused raising such a defence must fully disclose its details to enable the state to properly investigate it; failure to provide names or particulars of persons who could corroborate the alibi may result in rejection of that defence. (4) The prospects of success on appeal must be assessed on whether the appeal is reasonably arguable and not manifestly doomed to failure, rather than on whether it will succeed. (5) Personal circumstances of convicted persons, including lack of fixed residence and employment in illegal activities, are relevant factors in assessing the risk of absconding. (6) In serious sexual offences attracting substantial prison sentences, there is a pronounced risk that the convicted person will flee from justice if released, especially where there is no reasonable chance of successfully appealing the conviction.

The court made observations regarding the particularly serious nature of the offence, noting that the complainant was a mentally challenged woman of whom all applicants were aware, and that she was pregnant at the time of the rape. The court also commented on the gang nature of the rape, which made the offence very serious and justified the lengthy prison sentence. The court noted that illegal gold panners tend to be mobile, with no attachment to a particular place except where gold is rumoured to exist, making them particularly high flight risks. The court observed that ground 9 of the appeal (regarding manufacturing of evidence) was abandoned during the hearing. The court also made general observations about the proper approach to credibility findings, noting that a trial court's assessment of witness credibility should be respected unless clearly shown to be erroneous.

This case reinforces the strict approach Zimbabwean courts take to bail pending appeal, particularly in serious sexual offences involving vulnerable victims. It clarifies the requirements for successfully raising an alibi defence, emphasizing that while there is no onus on the accused to prove an alibi, they must provide sufficient details to enable proper investigation. The judgment also demonstrates the court's careful consideration of risk factors for absconding, including the nature of the offence, length of sentence, and the accused's personal circumstances (such as being itinerant illegal miners with no fixed residence). The case illustrates that prospects of success on appeal are assessed not on whether the appeal will succeed, but on the lesser standard of whether it is reasonably arguable and not manifestly doomed to failure.