Norest Chigwada v The State

The applicant was employed as a conductor for Mwayera buses. On 8 September 2018, he was the conductor on a bus traveling from Harare to Chinhenga. The complainant, Trish Mutisi (aged 16), boarded the bus. The applicant sat with her and proposed love to her, which she rejected stating he was married. At Tsikada Bus Terminus, the complainant alighted to relieve herself. The applicant followed her, ordered another woman to return to the bus, and again asked the complainant to reconsider his proposal. When she refused, he allegedly pushed her against a sign post, forcibly removed her underwear, and had sexual intercourse with her without consent while she screamed. Her screams were not heard due to noise from buses at the terminus. On 10 September 2018, the complainant reported the incident to her school teacher, who informed the headmaster and police. On 11 June 2019, the applicant was convicted of rape under section 65 of the Criminal Law (Codification and Reform) Act and sentenced to 10 years imprisonment, with 3 years suspended for 5 years on conditions of good behaviour. He filed an appeal against conviction on 14 June 2019 and subsequently applied for bail pending appeal on 19 July 2019.

• Whether bail pending appeal should be granted after conviction for rape
• Whether the applicant discharged the onus of proving positive grounds for bail pending appeal
• Whether the applicant demonstrated reasonable prospects of success on appeal
• Whether the applicant proved that granting bail would not endanger the interests of justice
• Whether an application for bail pending appeal can proceed without a supporting affidavit from the applicant

The application for bail pending appeal was dismissed.

In applications for bail pending appeal, the presumption of innocence is inoperative. The applicant bears the onus of establishing positive grounds for granting bail and must prove that: (1) there are reasonable prospects of success on appeal; and (2) the interests of justice will not be endangered if bail is granted. It is insufficient to merely point to inadequacies in the State's case; the applicant must tip the balance in his favour by showing that justice will not be endangered. Where an applicant has already commenced serving a sentence, the onus is on the applicant to show that release on bail would not result in absconding, thereby prejudicing the interests of justice. An application for bail pending appeal must be supported by a proper affidavit or statement signed by the applicant; an "applicant's statement" containing only case law and legal submissions is improper, though the court may condone such irregularity in the interests of justice.

The court expressed concern about the practice by legal practitioners of filing what is termed an "applicant's statement" which contains case law authorities and a brief summary of grounds without a proper affidavit signed by the applicant. MUZENDA J stated that this procedure is not proper and that where there is no affidavit, there is properly no application to speak of. The court advised that if an applicant wishes to address the court on points of law relating to bail, this should be done from the bar or through separate heads of argument divorced from the statement or affidavit prepared on behalf of the applicant. The judge also observed that it is improper to allow people convicted of serious crimes to be walking in the streets instead of serving their sentences when prospects of success are non-existent, as society would lose faith in the justice system.

This case reinforces the strict approach taken by Zimbabwean courts to bail pending appeal, particularly in serious sexual offences cases. It emphasizes that convicted persons seeking bail pending appeal bear a heavy onus to prove positive grounds for bail and that the interests of justice will not be endangered. The judgment also provides important procedural guidance on the proper format for bail pending appeal applications, making clear that applicants must file a proper affidavit or statement signed by the applicant, not merely legal submissions containing case law. The case demonstrates that mere arguable grounds of appeal are insufficient; applicants must demonstrate that granting bail will not prejudice the administration of justice, particularly where they have already commenced serving their sentence.