S v Mahachi and Ors (HB 64 of 2006) [2006] ZWBHC 64 (21 June 2006)

Judgment No. HB 64/06 Case No. HCB 92-4/06 TAKAVINGEI MAHACHI And NNDWAMATO NEPTALI LUKOTO And MARTIN JACOBUS VENTURE Versus THE STATE IN THE HIGH COURT OF ZIMBABWE BERE J BULAWAYO 22 JUNE 2006 S S Mlaudzi for the applicants B Wozhere for the respondent Bail Application BERE J: The three applicants were convicted of smuggling in violation of section 82 of the Customs and Excise Act, Chapter 23:02. They were each sentenced to twelve months imprisonment of which four months were suspended on the usual conditions of good behaviour. The first applicant is an unemployed Zimbabwean national while the second and third applicants are South African Immigration officers. The applicants have lodged the instant application for bail pending appeal arguing among other issues that the applicants have bright prospects of success in their filed appeal. The defence alleges that the sentence imposed by the court a quo does induce a sense of shock and outrage and that the appeal court may be persuaded to impose a lighter sentence. 64/06 The legal position HB In an application for bail pending appeal there are basically two primary considerations which influence the granting or non- granting of bail, namely the likelihood of the applicant absconding and his prospect of success on appeal. See the case of the S v Williams 1980 ZLR 466 per FIELDSEND CJ (as he then was). When it comes to bail consideration the court enjoys wide discretion which must be properly exercised by weighing delicately the interest of the macro-society and that of the individual seeking to be released on bail. In R v Mthembu, 1961(3) SA 468 the court stressed the discretion that lies with the judge and indicated that the proper approach should be towards allowing liberty to persons where that can be done without endangering the administration of justice. Authorities are clear that in order to effectively achieve this in an application for bail pending appeal the balancing exercise must focus on the applicant’s prospects of success in the impending appeal as well as the likelihood of absconding if he were to be granted bail. The instant case In the filed notice of appeal the defence dealt with the alleged misdirection of the court a quo in the following words: “The court misdirected itself and erred by failing to mention and deal with the factors of; a) b) loss of employment by the second and third appellants; forfeiture of smuggled goods …” HB 64/06 In his expanded heads of argument counsel for the applicants also emphasised the fact that the trial court misdirected itself by failing to consider community service as an alternative form of punishment as per NDOU J in the case of S v Shariwa HB-37-03. A perusal of the court record clearly shows that indeed the trial court did not consider community service as an alternative and I accept that that was a misdirection. But I also note that that aspect was not canvassed by counsel for the applicants when he made submissions in mitigation on behalf of the applicants in the court a quo. It is imperative that where accused persons are represented every effort be made by their legal representative to put all those mitigatory factors and other legal guides to the trial court to ensure there is no inadvertent omission by the trial magistrate in capturing all that has to be considered before sentence is passed. The effect of all the issues raised by counsel for the applicants is that the appeal court would be at large in considering the sentence imposed by the trial court but I am far from being convinced that the appeal court would be persuaded to consider the sentence imposed as being inappropriate. This is an offence which borders on economic sabotage and that factor was fully dealt with by the court a quo. It is highly unlikely that the appeal court would see it in different light. Applicants two and three are aliens who stand to loose their jobs in their home country because of this case. No guarantee has been given by 64/06 HB their employer that once granted bail pending appeal, their department would automatically re-absorb them. The defence has speculated on the assurance and undertaking made by the applicants’ erstwhile superiors before the applicants were convicted. That situation pertained before conviction but as of now the two applicants stand as convicts and I have no doubt in my mind that that conviction has changed their status. If the two were to loose their employment (which is very likely) their erstwhile superiors would have no control over them and it is my view that the interest of justice would be compromised. In any event, it is my well considered view that the applicants’ chances of absconding have been heightened by their realisation that the possibility of a prison term is more real than imaginary. I am satisfied that this bail pending appeal must fail. It is dismissed. The Attorney General’s office has not asked for costs and none will be granted. Samp Mlaudzi & Partners, applicants’ legal practitioners The Attorney-General’s Department, respondent’s legal practitioners