On 11 October 2009 at Dingumuzi Township Plumtree, the applicants together with a co-accused discharged firearms in public, resulting in a complainant being hit by one of the bullets. The applicants were charged with attempted murder and contravening section 27(d) of the Firearms Act, Chapter 10:09. They pleaded not guilty but were convicted on both counts. They were sentenced to 7 years imprisonment on the first count (with 3 years suspended for 5 years on usual conditions) and 3 months imprisonment on the second count (concurrent). The applicants then applied for bail pending appeal against conviction and sentence.
The application for bail pending appeal was dismissed.
The binding principle established is that bail pending appeal will be refused where the court finds the applicants' chances of success on appeal are nil, particularly in cases involving the reprehensible use of firearms in a military fashion against unarmed civilians. The court must consider whether the applicant would succeed on appeal to the extent of avoiding an effective prison term. Where a person is rightfully supposed to be in prison following conviction and sentence, temporary release on bail pending appeal is inappropriate unless there are good prospects of success on appeal.
The court made observations about the nature of firearms and their use, stating that "a firearm generally kills it is fortuitous that it injures hence the need for an effective prison term." The court also made a broader observation about the purpose of bail pending appeal, noting that it would not be proper for a person rightfully supposed to be in prison to be temporarily released only to be ordered back again "as if his previous release was to enable him to enjoy some deserved holiday" - emphasizing that bail pending appeal is not a temporary respite from properly imposed sentence.
This case demonstrates the strict approach taken by Zimbabwean courts to applications for bail pending appeal in cases involving the use of firearms against civilians. It reinforces the principle that bail pending appeal will only be granted where there are realistic prospects of success on appeal that would result in avoiding an effective prison term. The case also illustrates that the defense of acting on superior orders does not automatically provide grounds for success on appeal in circumstances involving the discharge of firearms at unarmed civilians.