The applicant was convicted in 2015 of two counts of rape of an 11-year-old girl to whom he was related as an uncle. He received a sentence of 15 years for each count, with five years suspended on the usual conditions, making his effective sentence 25 years. The complainant's evidence was that the applicant raped her on two separate occasions using a knife to threaten her. Her testimony was confirmed by a medical report. The applicant successfully applied for condonation of late noting of appeal in August 2018 and subsequently applied for bail pending appeal. The applicant appeared as a self-actor (without legal representation) at trial. His initial defence was that the complainant had visited with her grandmother to pick okra and later with siblings, and he warned them not to step on his plants. He later introduced a new defence alleging a family grudge involving a deceased child, which he only raised after state witnesses had been excused.
The application for bail pending appeal was denied. The applicant was ordered to prosecute his appeal whilst serving his sentence.
In applications for bail pending appeal involving convictions for Third Schedule offences (rape of minors), bail will generally be denied where: (1) there are no reasonable prospects of success on appeal regarding conviction; (2) even if there may be prospects of success on sentence, the accused will still face a lengthy custodial sentence; and (3) the likelihood of abscondment is high given the serious nature of the offence and the substantial sentence to be served. The right to personal liberty diminishes significantly where the presumption of innocence no longer prevails following conviction and there are no prospects of success on conviction. A self-acting accused cannot successfully argue that a magistrate failed to assist him where the record demonstrates that procedures were explained and understood, and the accused's strategic choices (limited cross-examination, failure to put defences to witnesses) were his own. New defences raised only after state witnesses have been excused, which were not put to those witnesses in cross-examination, will be treated as crafted and properly disregarded by the trial court.
The court observed that while the applicant's sentence of 25 years effective imprisonment may indeed be reduced on appeal, citing S v Nyathi 2003 (1) 587 (H) where a 30-year sentence for multiple rapes was reduced to 18 years, he would still remain with a lengthy sentence. The court noted that in considering bail pending appeal for Third Schedule offences, the same stringent approach applicable to bail pending trial (where bail is only granted in exceptional circumstances) applies with even greater force after conviction. The court commented that failure to put out a defence gives the impression of a crafted defence, especially when it is disclosed after witnesses have left the witness stand. The court also made a stylistic observation regarding sentencing remarks, indicating that different magistrates may adopt different stylistic approaches to expressing reasons for sentence, but what matters is that the reasons are discernible from the record.
This case reinforces the stringent approach Zimbabwean courts take to bail pending appeal in cases involving Third Schedule offences, particularly rape of minors. It clarifies the application of the principles governing bail pending appeal, emphasizing that where there are no prospects of success on conviction and the accused faces a lengthy sentence for a serious sexual offence against a minor, bail will be denied due to the high likelihood of abscondment. The case also illustrates the limits of the duty to assist self-acting accused persons, confirming that where the record shows the accused understood proceedings, his strategic choices (such as limited cross-examination or raising new defences after witnesses are excused) will not be attributed to the magistrate's failure to assist. It demonstrates that defences not put to witnesses in cross-examination and only raised after witnesses have left the stand will be treated as crafted and lacking credibility.