Soul Ndonga v The State

The applicant, a member of the Zimbabwe National Army and self-proclaimed prophet/church leader, was convicted by the Regional Magistrate's Court in Bulawayo of rape (contravening section 65 of the Criminal Law (Codification and Reform) Act, Chapter 9:2) and indecent assault (contravening section 67(1)(a)(i) of the same Act). He was sentenced to 16 years imprisonment with 3 years suspended on conditions. The first complainant, Pauline Kukura, alleged that the applicant was a family prophet whom she consulted. On 27 July 2020, she visited him with her cousin Patience Macheya and younger brother. After asking others to leave, the applicant allegedly told her he would remove a "curse" from her body, gave her water to drink, instructed her to sit on his bed, asked her to remove her underwear, applied ointment to her breasts and vagina, and then penetrated her with his penis despite her protests. The second complainant, Patience Macheya, alleged that when called in alone, the applicant told her she was bewitched, lifted her skirt, fondled her breasts, applied ointment, and attempted to insert his finger into her vagina but stopped upon discovering she was menstruating. The applicant denied both allegations, claiming he had consensual sexual intercourse with Pauline (with whom he claimed to have been in a relationship), and that both complainants conspired to falsely accuse him after discovering he had also dated Pauline's sister Sharon. He filed a Notice of Appeal against both conviction and sentence and applied for bail pending appeal.

• Whether the applicant had reasonable prospects of success on appeal against conviction and sentence
• Whether the applicant should be granted bail pending appeal
• The application of the constitutional right to liberty under sections 49 and 50 of the Constitution read with section 123(1) of the Criminal Procedure and Evidence Act to convicted persons pending appeal
• Whether there was a likelihood of the applicant absconding if granted bail

1. The applicant is admitted to bail pending appeal. 2. He deposits the sum of ZWL$3,000.00 with the Assistant Registrar, High Court, Bulawayo. 3. He reports at Bulawayo Central Police Station twice a week on Mondays and Thursdays between 0600 and 1800 hours.

An applicant for bail pending appeal should be granted bail where: (1) the appeal is reasonably arguable and not manifestly doomed to fail from the outset; (2) there is room for difference of opinion on the law, facts, evidence and circumstances of the particular case regarding the conviction and/or sentence; (3) the appeal does not suffer from "still birth" and is not devoid of merit on its face; (4) the appeal is free from predictable failure; and (5) the appeal cannot be dismissed as frivolous and vexatious. While the presumption of innocence no longer applies after conviction and sentence, the constitutional right to liberty under sections 49 and 50 of the Constitution read with section 123(1) of the Criminal Procedure and Evidence Act extends to convicted persons pending appeal in deserving cases. The question of whether there are prospects of success is a matter of value judgment, and where likelihood of absconding has not been shown to exist, this factor weighs in favor of granting bail.

The court observed that it was in the interests of justice that the applicant should have his day in the appeal court. The court noted that where the likelihood of absconding and defeating the interests of justice is ruled out or has not been shown to exist, the question of prospects of success is a matter of value judgment, and the lesser the chances of success on appeal, the greater the chances of absconding and vice versa. The court also made observations about the difficulties the applicant faced in cross-examination trying to explain the timeline of his alleged relationships with Sharon and Pauline, noting that "the applicant had difficulties in cross-examination trying to explain when he dated Sharon, made her pregnant, ditched her, then dated the 1st complainant who is Sharon's younger sister in the manner he alleges unless if he was sleeping with them during the same period." The court criticized both parties for failing to comply with Practice Direction No. 2 of 2021, particularly the applicant's failure to file Heads of Argument and both parties' failure to address the issue of absconding or jeopardizing the administration of justice.

This judgment is significant as it demonstrates the application of constitutional rights to liberty for convicted persons pending appeal in Zimbabwean criminal procedure. It illustrates the balancing exercise courts must undertake between the right to liberty and the interests of justice after conviction. The case emphasizes that bail pending appeal should be granted where the appeal is arguable and not manifestly doomed to fail, even in serious criminal matters involving rape and indecent assault convictions with lengthy prison sentences. It also highlights the importance of procedural compliance with Practice Directions, though the court did not allow procedural deficiencies to defeat the substantive application. The case reinforces that prospects of success on appeal is assessed based on whether there is room for difference of opinion on law, facts, evidence and circumstances, rather than requiring certainty of success.