Russel Wayne Labuschagne v The State

The applicant was convicted of murder with constructive intent in the High Court and sentenced to 15 years' imprisonment. The conviction arose from an incident where the applicant, while driving his speedboat along Sinamwenda River in Binga, came upon the deceased Wilson Mudimba and his friend Siansole Muchimba, who were fishing in a canoe. The applicant cut their fishing nets and rammed his speedboat into their canoe, capsizing it. When the deceased swam to the speedboat and clung to its side, the applicant struck him repeatedly with an oar, causing it to break. The deceased then swam to a tree stump and clung to it, whereupon the applicant rammed his speedboat into the deceased, causing him to lose his grip, shout that he was "dying," and sink into the river. The deceased's body was never recovered. The applicant was granted leave to appeal against conviction and sentence, but his application for bail pending appeal was dismissed by the High Court. He then filed this application in the Supreme Court in terms of s 5(1) of Statutory Instrument 290/91.

• Whether the trial court misdirected itself in finding the State witness Muchimba to be credible and reliable
• Whether the applicant had reasonable prospects of success on appeal
• Whether bail pending appeal should be granted to a person convicted of murder and sentenced to a long term of imprisonment
• Whether the applicant established positive grounds for granting bail pending appeal
• Whether justice would be endangered by admitting the applicant to bail pending appeal

The application for bail pending appeal was dismissed. The applicant was ordered to serve his 15-year sentence of imprisonment while prosecuting his appeal.

In applications for bail pending appeal, the proper approach is that in the absence of positive grounds for granting bail, it will be refused. The mere fact that leave to appeal has been granted does not per se entitle a convicted person to bail. The onus is on the applicant to establish that justice will not be endangered and that there are reasonable prospects of success on appeal. A convicted person's previous compliance with bail conditions prior to conviction loses significance after conviction and sentencing to a long term of imprisonment, as the convicted person now has strong reason to abscond. An appellate court will not interfere with a trial court's findings on credibility in the absence of a misdirection.

The court observed that it is improper to allow people convicted of serious crimes to be walking in the streets instead of serving their sentences when the prospects of success on appeal are non-existent, as society would lose faith in the system and revolt. The court also commented that the constructive intent for murder can exist on a spectrum, and in this case was closer to actual intent than to culpable homicide.

This case illustrates the stringent approach Zimbabwean courts take to bail pending appeal, particularly in serious cases involving murder convictions and lengthy sentences. It emphasizes that: (1) bail pending appeal is not a right but a discretionary remedy requiring positive grounds for granting it; (2) the grant of leave to appeal does not per se entitle a convicted person to bail; (3) previous compliance with bail conditions becomes largely irrelevant after conviction and sentencing to imprisonment, as the convicted person now has strong incentive to abscond; (4) the onus is on the applicant to establish both that justice will not be endangered and that there are reasonable prospects of success on appeal; and (5) courts will not grant bail where prospects of success are non-existent, as society would lose faith in the justice system if people convicted of serious crimes walked the streets instead of serving their sentences.