S v Ncube and Anor (HCB 279 of 2004; HCB 280 of 2004) [2005] ZWBHC 3 (26 January 2005)

Judgment No. HB 3/05 Case No. HCB 279-80/04 CHESTER NCUBE And COLLEN NCUBE Versus THE STATE IN THE HIGH COURT OF ZIMBABWE NDOU J BULAWAYO 14 DECEMBER 2004 AND 27 JANUARY 2005 K Ncube, for applicant Ms T Mtethwa for respondent Application for bail pending appeal NDOU J: The applicants were jointly charged and convicted by a Western Commonage Provincial Magistrate. They were sentenced to 48 months imprisonment with 24 months suspended on conditions of good behaviour and restitution. They have noted an appeal against both conviction and sentence. I propose to deal with the case of each applicant separately. Chester Ncube – First applicant In his case he seeks a reversal of finding of the trial court on the facts. The finding was on the credibility of the witnesses. This point is relevant in determining the prospects of success on appeal. 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. The finding of fact by the trial court does not defy logic or common sense. There is nothing grossly irregular in the proceedings that I can discern. The trial court did not act capriciously. There are no reasonable prospects of success on appeal. The HB 3/05 first applicant’s application for bail must therefore fail – S v William 1980 ZLR 466(A) and R v Muller 1957(4) SA 642(A). Collen Ncube – Second Applicant It is trite that in bail pending appeal, unlike bail pending trial, the presumption of innocence no longer exists. In casu, in the absence of positive grounds for granting bail the proper approach to bail is that it should be refused – S v Tengende & Ors 1981 ZLR 445(S) and Mahachi v S HB-111-04. The second applicant does not seem to have been properly identified. The quality of the evidence that links him with he offence is suspect. None of the state witnesses identified him save that a “Collen” was called out by first applicant when under attack by the witnesses. The second applicant happens to be Collen. The applicant is a friend of the first applicant. There is a strong suspicion that he may be the Collen that the first applicant was calling out. The court, however, cannot convict on a suspicion no matter how strong it is. There seems to be more than one inference that can be drawn from the proven facts. As far as the second applicant is concerned there are reasonable prospects of success on appeal. He has established positive grounds for granting him bail. Accordingly, the first applicant be and is hereby refused bail pending appeal. The second applicant be and is hereby granted bail as follows: (a) that he deposits the sum of $50 000 with the Registrar of this court; (b) that he reports once a week every Friday between 0600 hours and 1800 hours until the appeal is determined. Job Sibanda & Associates, applicants’ legal practitioners Criminal Division, Attorney-General’s Office, respondent’s legal practitioners