Zenzo Dube and Reverence Dube v The State

The applicants were convicted by the magistrate at Gwanda on a charge of stock theft. They were sentenced to fifteen years imprisonment with 3 years suspended on the usual conditions and a further 3 years suspended on restitution, leaving them with 9 years effective imprisonment. They noted an appeal to the High Court against both conviction and sentence and applied for bail pending appeal. The conviction was based largely on the testimony of Cosmas Shoko who claimed to have seen the applicants driving the complainant's cattle. However, the complainant testified that Cosmas Shoko initially told him he had met Peter Ncube and two unnamed friends driving the cattle, and that Shoko did not know the two accused at that time. Cosmas Shoko admitted in his police statement he mentioned Peter and his two friends whom he did not name, despite knowing the accused persons for six years. Peter Ncube, who was already serving a sentence, exonerated the two applicants and implicated another person instead.

• Whether the applicants had reasonable prospects of success on appeal
• Whether the administration of justice would be prejudiced if bail was granted pending appeal
• Whether the court a quo erred in its assessment of evidence regarding identification of the appellants
• Whether the court a quo misdirected itself by ignoring discrepancies between state witnesses' testimony on material issues
• Whether there was a possibility of mistaken identity

The application for bail pending appeal succeeded. An order was issued in terms of the draft granting the applicants bail pending appeal.

In an application for bail pending appeal, the court must consider: (1) whether the applicant is likely to await the conclusion of the appeal, and (2) whether there are reasonable prospects of success on appeal. In assessing prospects of success, the court should consider the seriousness of the offence, the stiffness of the penalty imposed, and the merits of the appeal. Where the state's case contains significant discrepancies regarding identification of accused persons, including: conflicting testimony from state witnesses about who was identified; failure to name suspects in initial reports despite knowing them; and exculpatory evidence from a co-accused with no motive to lie, there are reasonable prospects of success on appeal sufficient to warrant granting bail pending appeal.

The court noted that Peter Ncube, who was already serving his sentence, had nothing to gain by exonerating the two accused persons but nonetheless chose to exonerate them. The court also observed that the court record did not canvass the aspect of the distance at which Cosmas Shoko saw the accused, which would be relevant to the reliability of the identification evidence.

This case demonstrates the application of bail pending appeal principles in Zimbabwean criminal procedure, particularly the importance of assessing prospects of success on appeal based on evidential discrepancies and identification issues. It illustrates how courts scrutinize the quality of identification evidence and the internal consistency of the state's case when determining whether to grant bail pending appeal in serious criminal matters such as stock theft.