S v Nyatondo & Anor (B 199 of 2015) [2015] ZWHHC 366 (13 April 2015)

1 HH 366-15 B199/15 LUCKSON NYATONDO and TANAKA CHINCE versus THE STATE HIGH COURT OF ZIMBABWE BHUNU J HARARE, 19 March 2015, & 14 April 2015 Application for bail pending appeal P Sonono, for the applicant T Mapfuwa, for the respondent BHUNU J: This is an application for bail pending appeal against both conviction and sentence. The record of proceedings shows that the applicants were convicted on their own pleas of guilty to a charge of contravening s 114 of the Criminal Law (Codification and Reform) Act [Chapter 9:23]. Commonly known as stock theft. The brief facts are that the first applicant Luckson Nyatondo is a part-time Kombi Driver who is often hired to drive commuter omnibuses for higher or reward. On 25 January 2015 both accused teamed with 4 others and drove a commuter omnibus they had been hired to operate all the way to Rafingora on a mission to steal goats. They proceeded to the complainant’s farm at Plot 2 Zilawa Farm where they stole 24 goats which they loaded onto the commuter omnibus and ferried them to Harare. The appeal however appears to have been prepared in the most perfunctory manner without proper attention to detail. Counsel for the applicant Mr Sonono erroneously or falsely states in his written application that the applicants were convicted after pleading not guilty to the charge when the record of proceedings clearly shows that they pleaded guilty and freely admitted all the essential elements of the offence. The applicants only raise one ground of appeal against conviction. Their complaint is that the trial magistrate did not properly explain the essential elements of the offence. A perusal of the record of proceedings, however shows that he trial magistrate did explains the essential elements of the offence which they admitted and were accordingly convicted in terms of their respective pleas of guilty. The applicants do not deny committing the offence HH 366-15 B199/15 but question the procedure adopted by the trial magistrate. It follows therefore that by pleading guilty both applicants were consenting to the conviction by the trial magistrate. In their application in court both applicants were through their lawyer unable to specify and articulate any cogent procedural irregularity that would justify upsetting the conviction either on appeal or review. The applicants were convicted on their own pleas of guilty to the charge thus the presumption of innocence no longer operates in their favour. Stock theft is undoubtedly a serious offence. In this case it is aggravated by the fact that it was carefully planned and executed in collusion with others who are still to be accounted for. The amount of goats is large. It is therefore unthinkable that any court will reduce the sentence to anything other than imprisonment. I therefore find that there is absolutely no merit in this application. The sooner the applicants start serving their respective sentences the better for themselves and the due administration of justice. It is accordingly ordered that the application for bail pending appeal be and is hereby dismissed. Magaya and Partners, the applicant’s legal practitioners The Prosecutor General’s Office, the respondent’s legal practitioners