Takunda Lawrence Madamombe v The State

The appellant was employed by the Zimbabwe National Army under the Presidential Guard Unit. He was charged with public violence as defined in s 36 of the Criminal Law Codification and Reform Act together with two other accused persons. The state alleged that the appellant and co-accused intercepted a ZUPCO bus near White House in Harare, ordered passengers to disembark, burnt the bus, and proceeded to loot shops and pharmacies at Puma Service Station. Police raided the appellant's house and found a blue Yamaha motor bike and 17 containers of tablets. The appellant claimed the tablets belonged to his relative who suffered from mental illness and HIV, and that he had purchased the motor bike but had no agreement of sale. The Magistrates' Court found him guilty and sentenced him to 60 months imprisonment with 12 months suspended. The appellant noted an appeal to the High Court and applied for bail pending appeal, which was dismissed. He then appealed to the Supreme Court against the refusal of bail.

• Whether the High Court misdirected itself in refusing bail pending appeal
• Whether the appellant had reasonable prospects of success on appeal against conviction and sentence
• Whether the risk of abscondment justified refusal of bail
• Whether the court a quo exercised its discretion unreasonably in refusing bail

The appeal was dismissed with no order as to costs.

In appeals against refusal of bail pending appeal, the Supreme Court will only interfere if the court a quo committed an irregularity or misdirection, or exercised its discretion so unreasonably as to vitiate its decision. The assessment of prospects of success is critical in bail pending appeal applications. The principle applies that the lesser the prospects of success on appeal, the higher the risk of abscondment. Where there is overwhelming evidence against an applicant and the prospects of success are slim, coupled with a lengthy sentence and gravity of the offence, bail pending appeal may properly be refused on the basis of risk of abscondment.

The Court observed that members of the Zimbabwe National Army under the Presidential Guard Unit are people whom the public look up to for peacekeeping instead of inciting public violence, suggesting that their conduct carries heightened culpability when they engage in criminal activity. The Court also noted that more is required to establish prospects of success than a mere possibility of success - there must be a sound, rational basis for concluding there are realistic chances of success, not merely that the case is arguable or not hopeless (citing Essop v S).

This case reaffirms the Zimbabwean Supreme Court's approach to bail pending appeal applications, emphasizing the limited scope of appellate review in the narrow sense and the importance of prospects of success in determining bail applications. It illustrates the application of the principle that poor prospects of success correlate with higher risk of abscondment. The case also demonstrates the court's strict approach to members of security forces who engage in criminal conduct, particularly public violence, given their position as peacekeepers whom the public should be able to trust.