Ranganai Samhembere v The State

On 13 April 2018, police detectives from the Vehicle Theft Squad received information about dealers loading dagga into Toyota Hiace vehicles in the Damafalls area of Harare. Acting on this tip-off, police intercepted a white Toyota Regius registration number AEL 2429 on an unnamed dusty road in Damafalls. The vehicle was found to contain 29 bags of dagga weighing 700 kg with a street value of US$49,000. The applicant, Ranganai Samhembere, was arrested as the driver of the vehicle, which was registered in his name. On 22 March 2019, the Regional Magistrates Court Harare convicted him of unlawful dealing in dangerous drugs under s 156(1)(c) of the Criminal Law (Codification and Reform) Act [Chapter 9:23]. He was sentenced to nine years imprisonment with no portion suspended, and his vehicle was forfeited to the State. The applicant appealed against both conviction and sentence and applied for bail pending appeal. His defence was that he was not driving the vehicle at the time, was not present in Damafalls, and was arrested at his home in Budiriro. He claimed the vehicle had been hired to persons named Johannes Moyo and Reuben Chimanja.

• Whether the applicant's appeal against conviction has reasonable prospects of success
• Whether the applicant's appeal against sentence has reasonable prospects of success
• Whether bail should be granted pending appeal considering the four factors: prospects of success, likelihood of absconding, right to personal liberty, and likely delay before appeal is heard
• Whether the evidence established that the applicant possessed dangerous drugs for the purpose of dealing
• Whether the applicant's alibi defence was properly rejected by the trial court
• Whether the forfeiture order under s 62(1)(b) of the Criminal Procedure & Evidence Act was properly made

The application for bail pending appeal against both conviction and sentence was dismissed.

In an application for bail pending appeal, the court must consider four factors: prospects of success on appeal, likelihood of absconding, the right to personal liberty, and likely delay before the appeal is heard. Where an appeal against conviction lacks reasonable prospects of success (is not reasonably arguable and is manifestly doomed to failure), bail pending appeal will be refused even if there are reasonable prospects of partial success on sentence appeal, no likelihood of absconding, and stringent conditions could be imposed. This is particularly so where the applicant cannot escape incarceration regardless of the outcome of the sentence appeal. Under s 156(1)(c) of the Criminal Law (Codification and Reform) Act, possession of a large quantity of dangerous drugs (700 kg of dagga) in a vehicle on an unnamed road constitutes adequate evidence of possession for the purpose of dealing, given the wide definition of "dealing" in s 155 which includes transmission and delivery. An alibi defence will fail where the accused does not call material witnesses who could corroborate the alibi and fails to provide any particulars of alleged co-perpetrators. The court is entitled to conclude that persons named without addresses or contact details, and who are not called as witnesses despite the vehicle being a valuable asset allegedly hired to them, are fictitious names concocted to evade liability.

The court observed that the cumulative effect of nine years imprisonment with no suspension and forfeiture of a vehicle valued at US$10,000 appeared "on the harsh side" for a first offender, suggesting some sympathy for the sentence being excessive. The court stated that if it had found reasonable prospects of success on conviction, "this would have been a suitable case for imposition of stringent conditions to minimize the risk of abscondment pending the determination of the appeal." The court noted that the applicant had "an incentive not to abscond so as to secure release of his forfeited vehicle should the appeal against conviction and/or sentence, even to the limited extent of the forfeiture order relating to his vehicle being set aside or the custodial sentence being reduced." The court remarked: "A person must not jump in, out of and back into prison. It clearly would be unnecessarily disruptive to his life." The court noted that the State could have charged under s 156(1)(a) using the words "deliver, transports or otherwise deals in" but "the result would have been the same, in the present circumstances, with charging for unlawful possession for the purpose of dealing under s 156(1)(c)." The court observed that the wide provisions of Chapter VII were partly designed "to deal with the grey areas and challenges in prosecuting commercial cases concerning dangerous drugs."

This case illustrates the high threshold for obtaining bail pending appeal in Zimbabwe, particularly in serious drug offences. It establishes that even where an applicant has reasonable prospects of success on sentence appeal and minimal risk of absconding, bail will be refused if the appeal against conviction lacks merit and custodial sentence is inevitable. The judgment provides important guidance on interpreting Chapter VII of the Criminal Law (Codification and Reform) Act concerning dangerous drugs offences, particularly the wide definition of "dealing" and the distinction between s 156(1)(c) (possession for purpose of dealing) and s 157 (mere unlawful possession). The case demonstrates that large quantities of drugs can constitute sufficient evidence of intent to deal. It also clarifies the requirements for establishing an alibi defence and the consequences of failing to call material witnesses or provide particulars of alleged co-perpetrators. The judgment addresses the court's discretion under s 62(1)(b) of the Criminal Procedure & Evidence Act to order forfeiture of vehicles used in drug offences.