Ringirai Dhliwayo and Wellington Dube and Mcasiseli Moyo v The State

The three applicants were charged, pleaded guilty and were convicted of contravening section 36(1)(c) as read with 36(1)(j) of the Immigration Act [Chapter 4:02] for assisting "border jumpers". They were sentenced to 6 months imprisonment of which 2 months was suspended on the usual conditions. The applicants had connived to assist three minor children aged between 1-2 years to illegally cross the border to South Africa. The offence was discovered by Police Detectives. The applicants applied for bail pending their appeal against sentence.

• Whether the applicants should be granted bail pending appeal against sentence
• Whether the trial court imposed an excessive sentence
• Whether there were irregularities in the trial proceedings
• Whether the applicants had reasonable prospects of success on appeal

The application for bail pending appeal was dismissed.

When determining an application for bail pending appeal against sentence, bail should only be granted if it appears that the trial court passed an excessive sentence or that the proceedings were irregular, in order to avoid actual prejudice to the applicant. If the applicant's circumstances were properly weighed by the trial court, bail should not be granted only for the applicant to be sent back to prison again. In cases involving assistance in illegal border crossing of minors, the seriousness of the offence and the need for deterrence are major factors militating against granting bail pending appeal.

The court observed that while there was no direct evidence the applicants were involved in child trafficking per se, the fact that they were assisting in the removal of children could point to furtherance of such offences. The court noted that cases of illegal border crossing are on the increase and that courts would be failing in their duties not to stem this scourge at the Beitbridge Border post. The court also commented that the prevalence of these offences is frequently reported in the press, highlighting the need for deterrence.

This case is significant in Zimbabwean jurisprudence for establishing the approach to bail pending appeal against sentence, particularly in immigration offences involving minors. It emphasizes the court's protective duty towards children and reflects the judiciary's firm stance against illegal border crossing and potential child trafficking activities. The judgment reinforces the principle of deterrence in sentencing for immigration offences and establishes a high threshold for granting bail pending appeal in such cases.