Philip Ndlovu v The State

In July 2015, the applicant rented a 5-roomed property at number 3 Wentworth Road, Thorngrove, Bulawayo from the complainant at US$300 per month. The property belonged to the complainant's son and was managed by the complainant under a Power of Attorney. In September 2015, the complainant traveled to the United Kingdom and authorized the applicant to manage her personal affairs by Power of Attorney. On 11 February 2016, the applicant abused this power by creating a false "Acknowledgment of Receipt" purporting to show that the complainant had sold him the property for US$23,000. He forged the complainant's signature using a specimen from the Power of Attorney. The applicant, who had failed to pay rent from August 2016, claimed he had paid a US$20,000 deposit and owed only US$3,000. The fraud was discovered when the complainant instituted civil eviction proceedings and the applicant defended on the basis that he owned the property. The applicant was convicted on 7 October 2019 at Tredgold Magistrates' Court of forgery (section 137 of the Criminal Law (Codification and Reform) Act) and fraud (section 136) and sentenced to 48 months imprisonment with 12 months suspended for 5 years on condition of good conduct.

• Whether the applicant had reasonable prospects of success on appeal against conviction for forgery and fraud
• Whether the trial court properly convicted the applicant when the state's evidence allegedly failed to prove the essential elements of the charges beyond reasonable doubt
• Whether the trial court erred in not accepting that identical signatures proved the complainant had signed the documents
• Whether the sentence imposed was manifestly excessive and induced a sense of shock
• Whether bail pending appeal should be granted

The application for bail pending appeal was dismissed.

In applications for bail pending appeal, the applicant bears the onus to show positive grounds why justice requires bail be granted. The absence of reasonable prospects of success on appeal is a major factor justifying refusal of bail. The question is not whether the appeal will succeed, but whether it is free from predictable failure. Where forensic evidence shows signatures are identical in construction and size and superimposed, this proves forgery as genuine signatures ordinarily contain slight variations. The court must balance the applicant's liberty against the proper administration of justice, and where an applicant has been properly convicted and sentenced, it is for the applicant to tilt the balance in their favor.

The court noted that while the state had not argued the risk of abscondment, the prospects of success and possibility of abscondment are interconnected - the less likely the prospects of success, the more inducement there is for an applicant to abscond. The court also observed that the complainant's decision to authorize the applicant by Power of Attorney to manage her personal affairs "turned to be unwise." The court commented that in normal circumstances there would be slight variations in signature construction and size, and the fact that signatures were identical was highly probative of forgery.

This case illustrates the application of the stringent test for bail pending appeal in Zimbabwe (which shares jurisprudential heritage with South Africa). It demonstrates that applicants bear the onus to show positive grounds for bail after conviction, and that absence of reasonable prospects of success is a major factor weighing against bail. The case also provides guidance on the evaluation of forensic evidence in forgery cases, particularly regarding the significance of identical signatures indicating copying rather than genuine execution. The case emphasizes that courts will not lightly interfere with sentencing discretion of lower courts and reinforces the interconnection between prospects of success and risk of abscondment in bail applications.