Nkosiyapha Khumalo v The State

The appellant was convicted of attempted murder after a full trial before a Regional Magistrate in Bulawayo and sentenced to 5 years imprisonment, with 3½ years suspended for 5 years on condition he did not commit any offence involving violence. The conviction arose from an incident where the appellant struck a 19-year-old female complainant, Ntandoyenkosi Ndlovu, with the blunt side of an axe on the head. The appellant had pleaded guilty to the lesser charge of assault but was nonetheless convicted of attempted murder. He noted an appeal against both conviction and sentence with the High Court. The appellant then applied for bail pending appeal before the magistrate in the court a quo, which was dismissed. He then approached the High Court seeking to overturn the magistrate's refusal to admit him to bail pending appeal.

• Whether the magistrate in the court a quo erred in refusing to grant bail pending appeal
• Whether the magistrate properly considered whether the interests of justice would be undermined by granting bail pending appeal
• Whether the appellant had reasonable prospects of success on appeal against both conviction and sentence
• Whether the court a quo exercised its discretion reasonably in refusing bail

The appeal was allowed. The appellant was admitted to bail pending appeal on the following conditions: (a) deposit RTGS$30,000 with the Registrar, High Court, Bulawayo; (b) reside at house number 72104 Lobengula West until the appeal (HCA 34/22) is finalized; (c) report on the first day of each month at Bulawayo Central Police Station between 6:00 am and 6:00 pm until the matter is finalized.

In applications for bail pending appeal by convicted persons under section 121(1)(6) of the Criminal Procedure and Evidence Act (Chapter 9:07), the court must exercise its discretion by considering: (1) the likelihood of absconding; and (2) the prospects of success on appeal in respect of both conviction and sentence. Where an appellant demonstrates reasonable prospects of success on appeal (an arguable case that is not entirely hopeless) and there is no risk of absconding, the court should grant bail pending appeal, particularly where the appellant is likely to serve a substantial portion of the sentence before the appeal is heard. A court exercises its discretion unreasonably when it refuses bail based on speculative reasoning without a proper factual basis, such as assumptions about how quickly an appeal will be heard.

The court observed that while appeals may be heard faster than before in Zimbabwe, there was no factual basis in this particular case to conclude that the appeal would be heard before a substantial portion of the sentence was served. The court also noted that the trial magistrate's consideration of community service as an alternative punishment at sentencing suggested there was merit to the argument that a different sentence might be imposed on appeal. The court implicitly recognized the right to liberty as a factor to be weighed in bail pending appeal applications, alongside the potential length of delay before the appeal can be heard.

This case illustrates the principles applicable to bail pending appeal in Zimbabwe, particularly after conviction. It demonstrates that courts must properly exercise their discretion by considering all relevant factors, including prospects of success on appeal and the likely delay before the appeal is heard. The judgment emphasizes that speculative reasoning about the speed of the appeals process without factual basis constitutes an unreasonable exercise of discretion. The case reinforces that where an appellant has an arguable case on appeal and there is no risk of absconding, bail pending appeal should generally be granted, particularly where the appellant may serve a substantial portion or all of the sentence before the appeal is heard.