Vengai Darlington Jasi and Archifold Zhanje v The State

The two applicants were jointly charged and tried before the Regional Magistrate Court sitting in Plumtree for fraud in terms of section 136(a)(b) of the Criminal Law (Codification and Reform) Act. On 19 November 2021 at Plumtree Border Post, the applicants presented and captured false details in the ZIMRA SAP system regarding a Mercedes Benz E220, intentionally entering a false duty payment receipt. This resulted in the ZIMRA SAP generating a receipt for assessment without customs duty being paid, prejudicing ZIMRA of USD 13,374.00 in unpaid customs duty. The vehicle was imported from England, and the 2nd applicant (a clearing agent) was engaged to clear it with ZIMRA. The importer paid the full clearing fees to the 2nd applicant. The 2nd applicant presented a fake proof of payment to the 1st applicant (a ZIMRA cashier) showing that USD 13,374.00 had been deposited into ZIMRA's CABS account. The 1st applicant issued a receipt without following proper ASYCUDA receipting procedures (Finp 60 and Finp 08), which required checking for a deposit in the bank statement before issuing a receipt. The proof of payment was unstamped and fake. On 27 April 2022, both applicants were convicted and each sentenced to 3 years imprisonment, with 1 year suspended for 5 years on good behaviour conditions, 1 year suspended on condition of paying restitution of USD 6,687 each, leaving an effective 1 year imprisonment. They appealed both conviction and sentence and applied for bail pending appeal.

• Whether the applicants had reasonable prospects of success on appeal against conviction
• Whether the applicants had reasonable prospects of success on appeal against sentence
• Whether the applicants were likely to abscond if granted bail pending appeal
• Whether it was in the interests of justice to grant bail pending appeal to convicted persons
• Whether the trial court properly assessed the evidence regarding the 1st applicant's defence that he made an error
• Whether the trial court properly found that common purpose was established between the applicants
• Whether the sentence imposed was disturbingly inappropriate

Both bail applications (HC 186/22 and HC 187/22) were dismissed.

In applications for bail pending appeal following conviction: (1) Bail pending appeal is not a right; applicants must establish positive grounds for the court to exercise discretion in their favour. (2) The main factors are prospects of success on appeal and likelihood of abscondment, which are interconnected - the lesser the prospects of success, the higher the risk of abscondment. (3) The onus is on convicted applicants to show why justice requires bail be granted. (4) Appeal courts seldom interfere with trial courts' factual findings unless afflicted by gross unreasonableness, as trial courts are best placed to assess witness credibility and demeanour. (5) Sentences will only be altered on appeal if the discretion was not judicially and properly exercised, i.e., if vitiated by irregularity, misdirection, or the sentence is disturbingly inappropriate. (6) Where an accused raises a defence involving a third party within their knowledge, they bear an evidential burden to produce that person or provide sufficient particulars to enable investigation. (7) Public confidence in the administration of justice requires that convicted persons with dim prospects of appeal success serve their sentences, even if they might complete them before the appeal is heard. (8) Failure to put a material aspect of one's defence to relevant witnesses in cross-examination may lead to that version being rejected as a fabrication or improvisation.

The court made several obiter observations: (1) Counsel for the respondent made improper concessions suggesting there was no evidence the proof of payment was fake, when the evidence clearly established it was fake. (2) If the trial court erred in sentencing, it erred on the side of leniency given that the crime struck at the very heart of State revenue collection. (3) Those who turn against the State fiscus for personal gain must not expect leniency from the courts. (4) The law would fail to protect society if an accused could simply introduce the name of a character and require the State to produce such person without providing any particulars to enable their identification or location. (5) The fraudulent transaction would not have succeeded without the active participation of both applicants, each playing a crucial role, demonstrating they acted in common purpose to commit the crime. (6) The confidence of the community in the administration of justice would be seriously eroded if persons convicted of crimes with little prospects of appeal success are seen roaming the streets.

This case is significant in Zimbabwean criminal procedure law as it comprehensively sets out the principles governing bail pending appeal for convicted persons. It reaffirms that bail pending appeal is not a right but a matter of judicial discretion requiring positive grounds. The judgment emphasizes the interconnected nature of prospects of success and likelihood of abscondment, and clarifies that convicted persons seeking bail bear the onus to establish it is in the interests of justice. The case also illustrates the limited utility of factual appeals against trial court findings, the proper allocation of evidential burdens in criminal cases, and the courts' approach to revenue fraud cases involving public officials who betray their trust. It demonstrates judicial reluctance to grant bail pending appeal where prospects of success are dim, even if the sentence might be completed before the appeal is heard, prioritizing public confidence in the administration of justice.