S v CHIKUMBA 2015 (2) ZLR 423 (H)

Flynote

Aviation — Air Zimbabwe Holdings (Pvt) Ltd — successor company to Air Zimbabwe Corporation — a private company even though all shares owned by the Government — employees not in service of the State

Criminal law — offences under Criminal Law Code — criminal abuse of public office (s 174(1)) — public officer — who is — employee of private company wholly owned by Government — not an employee of the State

Criminal procedure — bail — pending appeal — second application — need to show facts which have arisen or been discovered since last application — realisation of point of law striking at root of conviction — may be considered in decision as to whether to grant bail — not necessary for judicial officer to consider appeal doomed to failure — appeal must be free from predictable failure

Headnote

The applicant sought bail pending appeal. This was his second application, the first having been refused. He was the former chief executive officer of Air Zimbabwe, employed by Air Zimbabwe Holdings (Pvt) Ltd. He and another former employee had been convicted of criminal abuse of duty as a public officer, in contravention of s 174(1)(a) of the Criminal Law Code [Chapter 9:23], arising out of insurance contracts which they sought without going through the proper procedures. The appeal was against conviction and sentence. In respect of the former, the grounds of appeal were essentially factual. This being a second application, it was necessary, in terms of s 123 of the Criminal Procedure and Evidence Act [Chapter 9:07], to show that there were facts which were not placed before the judge who determined the previous application and which had arisen or been discovered after the determination. The facts relied on were that it was only when counsel had been briefed to give advice on the way forward that it was discovered that the applicant was wrongly convicted, as Air Zimbabwe was not one of the entities envisaged by the Code, and that he was not a public officer as defined in s 169, not being a person holding or acting in a paid office in the service of the State, a statutory body or a local authority. This aspect had been completely overlooked by both the prosecution and the defence. It was overlooked in the first bail application. The applicant sought to amend his grounds of appeal by adding these averments to the grounds previously filed.

The State argued that the fact that the applicant's counsel "discovered" that he was not a public officer was not a discovery. This was a fact that was always in existence right from the beginning. It had never been an issue.

Held, that it may be that mere remissness or negligence or lack of diligence in failing to place all relevant facts before the court would not ordinarily amount to new facts, or changed circumstances, where a person, or somebody on his behalf, eventually becomes aware of those facts. If, with the exercise of due diligence, such facts would have been made available, the court should not too readily accept them as new facts amounting to changed circumstances. The test whether, in a subsequent bail application, there are changed circumstances or not, may be compared to an application for leave to introduce fresh evidence on appeal. The factors to consider should include whether or not the fresh evidence could reasonably lead to a different verdict, and whether there is a reasonable explanation why such facts were not placed before the court. In exceptional cases, relief may be granted if the court is satisfied that a reasonable probability exists that a conviction would not stand if the further evidence were accepted. The court should only decline to receive further evidence where it would not be in the interests of justice to do so. The ultimate determinant therefore is the interests of justice.

Held, that if the applicant had been bringing a new bail application purely and solely on the same set of facts as those considered previously, that would have been irregular and in violation of s 123 of the Criminal Procedure and Evidence Act. But he was bringing the second bail application on the basis of a new point which was both a point of fact and a point of law. This point was fundamental to the prospects of success of the applicant's appeal and was so profound as to strike at the root of the very conviction in respect of which the applicant was serving time.

Held, further, that in an application for bail pending appeal, it is not the function of the judicial officer to satisfy himself beyond any measure of doubt whether or not the grounds of appeal are doomed to fail. If the applicant has some fighting chance on appeal, then, all the other relevant factors being neutral, the applicant must be entitled to relief. The question, then, is not whether the appeal will succeed. The standard is much lower. It is whether the appeal is free from predictable failure.

Held, further, that Air Zimbabwe Holdings and Air Zimbabwe (Pvt) Ltd were private companies formed by shares and registered in terms of the Companies Act [Chapter 24:03]. Air Zimbabwe (Pvt) Ltd was designated as the successor company to the defunct Air Zimbabwe Corporation, which was a statutory body. The Corporation was dissolved. The fact that the Government was a shareholder in the airline did not make it the employer and did not make the applicant a public officer.