Taisekwa Edmore Kondo v The State

The applicant was convicted of murder in breach of section 47(2) of the Criminal Law (Codification & Reform) Act [Chapter 9:23] and sentenced to a term of imprisonment. He noted and filed an appeal to the Supreme Court contesting both conviction and sentence. He then applied to the High Court for bail pending the hearing of his appeal. The State opposed the application on the basis that the applicant had no prospects of success on appeal, and that even if successful, he would likely be found guilty of culpable homicide and receive a custodial sentence.

• Whether the applicant satisfied the evidential burden of showing it was in the interests of justice to be released on bail pending appeal
• Whether the applicant demonstrated reasonable prospects of success on appeal
• What factors should be considered when determining an application for bail pending appeal after conviction for murder
• Whether the severity of sentence and risk of abscondment justified refusing bail pending appeal

The application for bail pending appeal was refused. The applicant was to remain in custody while awaiting the hearing of his appeal.

An applicant convicted of murder seeking bail pending appeal bears an evidential burden to show it is in the interests of justice to grant bail. Upon conviction, the presumption of innocence no longer operates in favour of the applicant. To succeed in a bail application pending appeal, the applicant must demonstrate on proper grounds that there are reasonable prospects of success on appeal that are not remote but have a realistic chance of succeeding - more is required than mere possibility, arguability, or that the case is not hopeless. In determining bail pending appeal after conviction, courts must consider: (i) likelihood of abscondment; (ii) prospects of success on appeal; (iii) the right to liberty; and (iv) potential delay before the appeal is heard. The severity of sentence imposed is a decisive factor, as it increases the real risk of abscondment once a lengthy prison term is known.

The court observed that appeals in Zimbabwe are now being heard timeously, and there is no longer the problem of accused persons being placed in stagnant queues awaiting their appeals. The court also noted that even if an appellant convicted of murder were to succeed partially on appeal, a conviction for culpable homicide would likely result in an effective prison term, which is a relevant consideration when assessing flight risk.

This judgment is significant in Zimbabwean criminal procedure as it clarifies the stringent requirements for bail pending appeal after conviction for serious offences like murder. It reinforces that the presumption of innocence is eliminated upon conviction and that the evidential burden on an applicant for post-conviction bail is substantial. The case demonstrates the application of the 'reasonable prospects of success' test from South African jurisprudence (S v Smith) in Zimbabwe, requiring more than mere arguability. It also emphasizes that courts will consider the realistic outcomes on appeal, including conviction for lesser included offences, when assessing flight risk and the interests of justice.