S v Mahachi (HCB 133 of 2004) [2004] ZWBHC 111 (1 September 2004)

Judgment No. HB 111/2004 Case No. HCB 133/04 JAMES OLIVER MAHACHI Versus THE STATE IN THE IGH COURT OF ZIMBABWE NDOU J BULAWAYO 9 AND 2 SEPTEMBER 2004 G Nyoni for applicant A Gabie for respondent Bail Application NDOU J: The applicant was a constable attached to the Criminal Investigations Department of the Zimbabwe Republic Police in Kwekwe. He was in force for about eleven years prior to the commission of this offence. On 11 June 2000 at a place behind Batanai Tavern in Amaveni, Kwekwe, the applicant allegedly raped the complainant then aged 13 years old and doing form 1 at Amaveni Secondary School and who also worked for him as a maid on part time basis. The applicant appeared before the senior Regional Magistrate for the Central Division and was convicted of the charge on 21 April 2004. The conviction followed a long trial in which the prosecution adduced evidence from eight (8) witnesses and the applicant, in addition to his own testimony, called four (4) witnesses. The applicant was sentenced to ten (10) years imprisonment of which two(2) years were suspended on condition of good behaviour. The applicant has noted an appeal against both conviction and sentence. The notice of appeal basically attacks the trial magistrate for “failing to exercise extreme caution when dealing with a very young complainant” and accepting “without caution” the evidence Gladys Nyoni” (the HB 111/04 witness to who the complainant reported the sexual abuse). Put in another way, the appeal against conviction is based on the findings of fact. The applicant, on appeal, will be seeking a reversal by appellate court of the decision of the trial court on the facts. I highlight this point because it is relevant in determining the prospects of success on appeal as it is trite that the assessment of the credibility of a witness is the province of the trial court – S v Mlambo 1994(2) ZLR 410 (S); Soko v S SC-118-92; Mbanda v S SC-184-90; R v Dhlumayo & Anor 1948(2) SA 677(A) and Kombayi v S HB-27-04. In bail pending appeal, unlike in bail pending trial, the presumption of innocence no longer exists. In the former, in the absence of positive grounds for granting bail, the proper approach to bail is that it should be refused – Criminal Procedure in Zimbabwe by J Reid Roland at 6 –17 and S v Tengende & Ors 1981 ZLR 445 (S). The onus is on the applicant to show that he should be admitted to bail. In determining whether the applicant has discharged this onus, I have to consider (I) whether there are reasonable prospects of success and (ii) the likelihood that applicant will abscond. (which will depend, inter alia, on the length of the custodial sentence imposed) The greater the likelihood that the applicant will abscond the greater must be the prospects of success before bail is granted – S v Williams 1980 ZLR 466(A); R v Muller 1957 (4) SA 642 (A); R v Kara 1961(1) SA 116 (GW). The likely delay before the appeal can be heard is also a relevant factor – S v Benatar 1985(2) ZLR 205(H). Reasonable prospects of success on appeal In casu, as highlighted above, the appeal is premised on the cautionary rule. The Supreme Court has already endorsed the view that such cautionary rule of HB 111/04 practice is not warranted in sexual offences – S v Banana 2000(1) ZLR 707 (S) at 614F. In his judgment, the learned Regional Magistrate, whilst realising this legal position, still proceeded to see whether there was in fact any support to the complainant’s testimony and found that there was. He found the crucial witnesses, the complainant and Gladys Nyoni to be truthful and credible. He had the opportunity to observe their demeanour and character. The finding of fact by the court a quo does not defy logic or common sense. There is nothing grossly irregular in the proceedings of the trial court alleged in the notice of appeal or that I can discern from the record of proceedings (I have gone through the transcript of the entire proceedings) It has not been alleged in the notice that the trial magistrate exercised his discretion capriciously. All the above factors point in one direction i.e. there are no reasonable prospects of success on appeal. Likelihood of abscondment The effective prison sentence of eight (8) years coupled with slim prospects of success on appeal is sufficient inducement for the applicant to abscond – R v Muller, supra, and R v Kara supra. As against sentence there is simply no merit. Rape at gunpoint on a juvenile would warrant the sentence imposed. In light of the above, the applicant has failed to proffer positive grounds for granting bail. He failed to discharge the onus to show that he should be admitted to bail and his application for bail pending appeal must fail. Application for bail is dismissed and bail is refused. Messrs Majoko & Majoko, applicant’s legal practitioners Criminal Division, Attorney-General’s Office respondent’s legal practitioners