Taurai Chikwizu v The State

The applicant was convicted by the Regional Magistrate at Harare of rape as defined in s 65(1) of the Criminal Law Codification and Reform Act [Chapter 9:33]. The allegations were that on 27 February 2017, the applicant and the complainant (aged 17 years) were neighbours at Zimbabwe National Army 2 Brigade Flats in Cranborne. The applicant knocked on the complainant's door during the night, forcibly opened it after she shut it, demanded a hug which was refused, then forcibly pushed the complainant to the floor and had forced sexual intercourse with her, threatening to shoot her if she reported the assault. The applicant was sentenced to 16 years imprisonment with 4 years suspended on condition of good behaviour on 24 March 2017. He noted an appeal (CA 220/17) on 5 April 2017 and applied for bail pending appeal on 28 April 2017.

• Whether the applicant had demonstrated reasonable prospects of success on appeal to justify admission to bail pending appeal
• Whether it is in the interests of justice to grant bail pending appeal in terms of s 123(b)(ii) of the Criminal Procedure and Evidence Act [Chapter 9:07]
• The proper application of s 115C of the Criminal Procedure and Evidence Act regarding the burden of proof in bail applications by convicted persons
• Whether s 50(1)(d) of the Constitution applies to bail pending appeal applications
• The weight to be given to trial court findings on credibility in assessing prospects of success on appeal

The application for bail pending appeal was granted. The applicant was admitted to bail on the following conditions: (a) deposit US$300 with the Clerk of Court, Magistrates Court Harare; (b) reside at House No. 183 Zata Street, Mbare, Harare until the appeal is determined; (c) report at Braeside Police Station on the 1st day of each successive month pending determination of the appeal.

In applications for bail pending appeal under s 123 of the Criminal Procedure and Evidence Act [Chapter 9:07], the convicted applicant bears the onus of showing on a balance of probabilities that it is in the interests of justice to be released on bail (s 115C(2)(b)). Section 50(1)(d) of the Constitution, which protects the rights of arrested persons presumed innocent, does not apply to convicted persons seeking bail pending appeal as they are no longer entitled to the presumption of innocence. An applicant need not prove certainty of success but must demonstrate that the appeal is reasonably arguable. Prospects of success can be established by showing material misdirections by the trial court, including: improper treatment of medical evidence; bias in assessing witness credibility; and improperly building the State's case rather than acting impartially. Where reasonable prospects of success are demonstrated and the applicant is of fixed abode with institutional ties (such as military membership), the risk of absconding is reduced and the interests of justice favour granting bail pending appeal.

The court observed that it is good practice for counsel to cite the relevant statutory provision relied upon in applications, as this alerts the court to the applicable law and its jurisdiction and powers. The court should not be left to surmise on its jurisdiction before invoking it. The court noted that judges have used various formulations to express prospects of success, including describing appeals as "susceptible to predictable failure," but preferred the conservative formulation that the applicant should demonstrate "reasonable prospects of success." The court also commented that the appeal court now sits three times weekly and with transcribed records, delays in hearing appeals are minimized, reducing prejudice to convicted applicants. The court observed that it would be illogical for a complainant who had been threatened to report a less serious crime (indecent assault) rather than simply not reporting any crime at all.

This case clarifies the legal framework for bail pending appeal applications in Zimbabwe following the 2013 Constitution. It establishes that: (1) s 50(1)(d) of the Constitution (relating to arrested persons) does not apply to convicted persons seeking bail pending appeal; (2) s 115C of the Criminal Procedure and Evidence Act applies to all bail applications including those under s 123; (3) convicted persons bear the burden of proving on a balance of probabilities that it is in the interests of justice to grant bail; (4) the test for prospects of success is whether the appeal is reasonably arguable, not certainty of success; (5) trial court errors in assessing credibility, dismissing medical evidence, and showing apparent bias can constitute reasonable prospects of success. The case provides important guidance on the interplay between constitutional rights, statutory provisions, and judicial discretion in bail pending appeal applications.