The State v Shepherd Shambare and Everset Matunge and George Kaseke and Stanley Chitenda

The applicants were convicted of murder with constructive intention under s 47(1b) of the Criminal Law Codification and Reform Act by Mwayera J on 31 May 2017 after a trial that commenced in 2012. The applicants, who were employees at Impala Downs Farm, unlawfully assaulted the deceased, Aleck Bongo Loore, on 23 March 2009 on allegations that he had committed a robbery at the farm. They held the deceased captive from the night of 23 March 2009 and surrendered him to police the following day around 10:00 am. The deceased was subjected to a protracted and vicious assault by all applicants using booted feet, baton sticks and switches. The assault was indiscriminate all over the body, with applicants trampling on the deceased as he lay injured on the ground. When taken to the police station, the deceased could hardly stand or walk, his body and face were swollen, he could hardly open his eyes or talk. The deceased was pronounced dead on arrival at hospital. Medical evidence showed the deceased had suffered a broken neck and multiple injuries. The applicants had been on bail throughout the 5-year trial period and never absconded. Following conviction and sentence, they applied for bail pending appeal against both conviction and sentence.

• Whether the applicants had prospects of success on appeal against their conviction for murder with constructive intention
• Whether the trial court properly applied the doctrine of common purpose
• Whether the trial court erred in its assessment of the medical evidence regarding cause of death
• Whether the defence of voluntary intoxication (marijuana use) was properly rejected
• Whether the sentence imposed was appropriate and free from misdirection
• Whether the interests of justice would be served by admitting the applicants to bail pending appeal under s 115C(2)(b) of the Criminal Procedure and Evidence Act

The application for bail pending appeal was dismissed.

Where an applicant applies for bail pending appeal under s 115C(2)(b) of the Criminal Procedure and Evidence Act, they bear the onus to prove on a balance of probabilities that the interests of justice will be served by their admission to bail. Where there are no reasonable prospects of success on appeal against conviction and sentence, and where the crime involved was a vicious, prolonged gang assault resulting in death, the interests of justice will not be served by granting bail pending appeal. The doctrine of common purpose as codified in ss 196A-200 of the Criminal Law (Codification & Reform) Act applies where multiple accused act together in an assault, and individual degrees of participation are not material in the absence of dissociation. A claim of voluntary intoxication must be advanced as a substantive defence at trial and the accused bears the onus under s 222 of the Criminal Law (Codification & Reform) Act to prove it led to an inability to form the requisite intention.

The court observed that during the 5 years that the trial slowly proceeded to finalization, the applicants were out of custody and none of them absconded the court's jurisdiction, implicitly acknowledging this as a positive factor though ultimately insufficient to warrant bail pending appeal. The court noted that where an assault results in a broken neck and the victim dies, no other conclusion can be reached than that the assault resulted in death, commenting on the sufficiency of external medical examination in such circumstances. The court described the ground of appeal relating to intoxication as 'ingenious but a red herring or spanner thrown in the works to confuse the clear factual scenario.' The court applied South African precedent (S v Maglas 2001 (1) SACR 469 (SCA); S v Pillay 1977 (4) SA 531 (A)) alongside Zimbabwean authority (S v Gono 2000 (2) ZLR 63 (SC)) for the principle that sentencing is pre-eminently a matter for trial court discretion.

This case demonstrates the stringent requirements for bail pending appeal in Zimbabwe, particularly in serious violent crimes resulting in death. It confirms that applicants bear the onus to prove on a balance of probabilities that the interests of justice will be served by bail pending appeal under s 115C(2)(b) of the Criminal Procedure and Evidence Act. The case reinforces the application of the doctrine of common purpose in gang assault cases and the settled principle that sentencing is pre-eminently a matter for trial court discretion, with appellate courts only interfering where there is material misdirection. It also clarifies that the defence of voluntary intoxication requires proper substantiation and places a burden on the accused under s 222 of the Criminal Law (Codification & Reform) Act. The judgment emphasizes that prospects of success on appeal are a critical factor in bail pending appeal applications.