Shame Mazhambe v The State

The applicant was convicted by the Magistrates Court at Harare of robbery as defined in s 126 of the Criminal Law (Codification and Reform) Act. He was sentenced to 8 years imprisonment, with 2 years suspended for five years on condition of good behavior (no offences involving dishonesty and robbery), and a further 2 years suspended on condition of restitution, leaving an effective 4 years imprisonment. The charges arose from an incident on 3 October 2012 at House Number 1 Clonmill Road, Pomona, Harare, where the applicant and two accomplices allegedly used violence or threats while armed with scissors and bricks to steal cash, a camera, an iPhone and cellular phones from the complainant. Some of the stolen property was recovered from the applicant's residence. The applicant claimed the items were given by the complainant as payment or security for an illegal gold sale transaction, and that they knew each other prior to the alleged offence. He stated the complainant visited him twice at remand prison, which was supported by entries in the prison visitors' book, though the complainant denied knowing the applicant except in connection with the robbery. The magistrate rejected the applicant's version and concluded the visitors' book entries were fraudulent. The applicant appealed against both conviction and sentence and sought bail pending appeal on 3 July 2015.

• What are the applicable principles for granting bail pending appeal in Zimbabwe?
• Whether there were positive grounds to grant bail pending appeal in this case
• Whether the applicant demonstrated a reasonable prospect of success on appeal
• How to balance the liberty of the individual against the proper administration of justice where an applicant has been convicted and sentenced
• What weight should be given to the seriousness of the offence and length of sentence in determining bail pending appeal

The application for bail pending appeal was dismissed.

In applications for bail pending appeal: (1) bail is not a right and the onus is on the applicant to demonstrate positive grounds why bail should be granted; (2) in the absence of positive grounds for granting bail, it will be refused; (3) the applicant must show a reasonable prospect of success on appeal, but this alone is insufficient in serious cases; (4) the court must balance the liberty of the individual against the proper administration of justice, and where the applicant has been tried, convicted and sentenced, it is for the applicant to tip the balance in favor of liberty; (5) the seriousness of the offence and the length of sentence imposed are significant factors weighing against bail; (6) after conviction, the presumption of innocence no longer operates in favor of the applicant; and (7) the existence of arguable matters or curious aspects requiring investigation on appeal does not automatically constitute positive grounds for bail where other factors (seriousness of offence, substantial sentence) weigh against release.

Zhou J made observations about certain "curious aspects of the case which warrant investigation on appeal," including the alleged prison visits by the complainant to the applicant (supported by entries in the prison visitors' book) and the apparent over-familiarity suggested by both the complainant and her son referring to the applicant by his first name during evidence. The judge noted these matters were best left for the appeal court to examine when dealing with the substantive appeal, indicating they raised questions about the relationship between the parties that might have bearing on the credibility of competing versions at trial. However, the court expressly declined to express any concluded view on these matters, stating they were for the appellate court to determine.

This case provides a practical application of the established Zimbabwean principles governing bail pending appeal, particularly demonstrating how courts balance competing factors even where there may be arguable grounds of appeal. It illustrates the high threshold applicants must meet to obtain bail after conviction, emphasizing that the mere existence of arguable issues on appeal is insufficient where the offence is serious and a substantial custodial sentence has been imposed. The case reinforces that once convicted, the presumption of innocence no longer operates, and the scales are tilted against liberty in favor of the administration of justice. It serves as precedent for the proposition that in serious cases involving robbery and substantial sentences, bail will typically be refused pending appeal even where some evidentiary issues may warrant appellate review.