S v Masuku (HCB 140 of 2004) [2004] ZWBHC 114 (1 September 2004)

Judgment No. HB 114/04 Case No. HCB 140/04 JOHN RAPHAEL MASUKU Versus THE STATE IN THE HIGH COURT OF ZIMBABWE NDOU J BULAWAYO 29 JUNE & 2 SEPTEMBER 2004 J James for applicant A Gabie for the respondent Bail Application NDOU J: This is an application for bail pending appeal. The applicant was on 31 May 2004 convicted of two counts of theft of motor vehicles, one count of armed robbery and fourteen counts of contravening section 12(2)(b) of the Miscellaneous Offences Act [Chapter 9:15] and I sentenced him to 5 years imprisonment on each of the two counts of car theft, 10 years imprisonment for the armed robbery and a total of on year for all the counts of contravening section 12(2) (b) of the Miscellaneous Offences Act. I ordered all the sentences to run concurrently resulting in the sentence of 10 years of which three years were suspended. The applicant is to serve an effective sentence of seven years. With the consent of the respondent I granted the applicant leave to appeal against both conviction and sentence in respect of all the counts. For the record, Mr S Musonah prosecuted this matter, but when judgment was handed down, sentence passed and the application for leave to appeal was heard, Mr H S Ushewokunze III appeared for the state (respondent). He is the one who consented to the leave to appeal being granted. During this appeal hearing Mr Gabie, appeared for the state (respondent). He submits that Mr Ushewokunze III made the above HB 114/04 concession in error. He supported his submission by levelling criticism against his colleague. In my view, the Attorney General occupies a pivotal role in the criminal justice system. The opinion of the Attorney General in applications before the court commands respect because of his experience and the responsibility of his office – S v Lulame 1976(2) SA 204 (N); S v Kantar 1964(3) SA 377(W); S v Bennet 1976(3) SA 652(C) and Ndlovu v S HH-177-01. Whilst these cases deal with the Attorney General’s attitude in bail applications, the rule, in my view, is applicable to all criminal applications wherein his attitude or opinion is expected or necessary. This must be borne in mind by all officers who represent the Attorney General in court. The concessions of the Attorney General cannot be made and withdrawn willy-nilly in criminal proceedings. They must be informed concessions. In the case of withdrawals of concessions these must be properly done giving the accused an opportunity to make submissions. Such withdrawal of concessions will, in most cases, result in prejudice to the other side. In this case there is no submission that Mr Ushewokunze III is aware of the withdrawal that he made on behalf of the state. Even if he is aware I hold the view that in such an instance, he would be required, as an officer of this court, to file an affidavit in support of the withdrawal accepting blame for erroneous concession – Independence Mining (Pvt) Ltd v Soko S-188-93; Cobra Wild Cat (Pvt) Ltd v Timber Distributors (Pvt) Ltd 1990(1) ZLR 133 (HC) at 135G- 136B and Challenge Auto and Ors v Standard Chartered Bank Zimbabwe Ltd HH- 221-02. There is no such comment by Mr Ushewokunze III. Accordingly, I cannot allow the respondent to withdraw the concession that it made in earlier proceedings. In any event, the withdrawal should not have waited for the applicant to make his bail application. It would be unfair to accept it at this juncture. HB 114/04 On the merits, it is trite that after conviction and sentence, the presumption of innocence no longer exists. It is no longer a factor in bail pending appeal. The approach is that in the absence of positive grounds for granting bail, bail should be refused – S v Tengende & Ors 1981 ZLR 445(S). The onus is on the applicant to show that he should be admitted to bail. He can discharge this onus by focussing on two major factors i.e. (a) the likelihood of abscondment in light of the lengthy sentence imposed, and (b) the prospects of success on appeal – S v Williams 1980 ZLR 466 (A); R v Muller 1957 (4) SA 642(A) and Criminal Procedure in Zimbabwe – J R Rowland at 6-17 to 6-18. Another relevant factor raised by the applicant is the likely delay before the appeal can be heard. This is also a relevant factor – S v Benator 1985(2) ZLR 205 (H). The legal and factual issues raised in the notice of appeal were extensively canvassed by counsel during the trial and in closing submissions. We dealt with them in detail in our judgment. Most of the issues were decided upon on the basis of findings of fact. The applicant does not seem to criticise our findings on the basis that it is against logic, outrageous or unsupported by evidence. There are no reasonable prospects of success on appeal not withstanding the respondent’s consent to leave to appeal. The length of the sentence imposed in casu is likely to induce the applicant to abscond. As far as the delay in the appeal hearing I take notice of the fact that recently there are hardly any appeal matters for set down resulting in the Supreme Court sitting in Bulawayo being shortened or failing to take off. In such a situation if the applicant is assertive the question of dilatoriness would not arise. HB 114/04 The cumulative effect of my above findings is that there are no positive grounds for granting the applicant bail. He failed to discharge the onus on him to show that he should be admitted to bail. He is accordingly refused bail pending appeal. James, Moyo-Majwabu & Nyoni, applicant’s legal practitioners Criminal Division, Attorney-General’s Office, respondent’s legal practitioners