Seedat Yunus Fakir Ibrahim v The State

The applicant was convicted of 3 counts of fraud committed between June 2010 and August 2010. He defrauded three prospective shop seekers of their money by collecting rentals for non-existent shops. The first complainant lost US$22,000.00, the second US$20,000.00, and the third US$15,000.00, totaling US$57,000.00. None of the money was recovered. After committing the offences in 2010, the applicant went into hiding until he was traced and apprehended. He was sentenced to 15 years imprisonment, with 3 years suspended for 5 years on conditions of good behaviour and a further 6 years suspended on condition of restitution. Initially, the applicant appealed against both conviction and sentence but subsequently abandoned the appeal against conviction and only proceeded with the appeal against sentence. He then applied for bail pending the appeal.

• Whether the applicant should be granted bail pending his appeal against sentence
• Whether there is a risk of the applicant absconding if granted bail
• What are the prospects of success on appeal against sentence
• Whether the sentence imposed was excessive

The application for bail pending appeal was dismissed.

In determining whether to grant bail pending appeal, the court must consider: (1) the prospects of success on appeal; (2) the risk of absconding; (3) the seriousness of the offence; (4) the presumption of innocence no longer operates after conviction; and (5) where it is unthinkable that a reasonable court would impose a non-custodial sentence on appeal, bail pending appeal should be refused. An applicant's previous conduct of going into hiding after committing offences is a relevant factor indicating risk of absconding. Where prospects of success on appeal are very poor and there is a risk of absconding, the application for bail pending appeal should be dismissed.

The court observed that while at first glance the sentence of 15 years imprisonment (with 3 years suspended on conditions of good behaviour and 6 years suspended on condition of restitution) may look excessive, this initial impression does not translate into reasonable prospects of success on appeal given the seriousness of the offences, the substantial amounts involved, the repetitive nature of the fraud, and the applicant's reprehensible conduct in going into hiding.

This case demonstrates the Zimbabwean High Court's approach to bail pending appeal applications, particularly in fraud cases involving substantial sums. It illustrates that once convicted, the presumption of innocence no longer operates, and poor prospects of success on appeal, combined with previous conduct indicating a risk of absconding, will result in refusal of bail pending appeal. The case emphasizes that serious fraud offences with substantial amounts, actual prejudice to victims, lack of restitution, and flight from justice will weigh heavily against an applicant for bail pending appeal.