S v PFUMBIDZAYI 2015 (2) ZLR 438 (H)

Flynote

Criminal procedure — c bail — pending appeal — principles — should be positive grounds for granting bail — not necessary that exceptional grounds should exist — prospects of success — approach to be taken to — should be arguable or have substance

Headnote

Where bail after conviction is sought, the onus is on the applicant to show why justice requires that he should be granted bail. The proper approach is not that bail will be granted in the absence of positive grounds for refusal but that in the absence of positive grounds for granting bail it will be refused. First and foremost, the applicant must show that there is a reasonable prospect of success on appeal. Even where there is a reasonable prospect of success, bail may be refused in serious cases, notwithstanding that there is little danger of the applicant absconding. The court must balance the liberty of the individual and the proper administration of justice and where the applicant has already been tried and sentenced it is for him to tip the balance in his favour. It is also necessary to balance the likelihood of the applicant absconding as against the prospects of success, these two factors being interconnected because the less likely are the prospects of success the more inducement there is to abscond. Where the prospect of success on appeal is weak, the length of the sentence imposed is a factor that weighs against the granting of bail. Conversely, where the likely delay before the appeal can be heard is considerable, the right to liberty favours the granting of bail. It is not a requirement that "exceptional circumstances" should exist to justify release on bail. What are required are positive grounds to show that bail must be granted. Where the High Court is faced with an appeal against refusal to grant bail pending appeal, the court will consider whether the magistrates court misdirected itself, having regard to the above principles. The court does not deal with the matter as if it is the court of first instance in an application for bail.

In relation to prospects of success, the High Court is not sitting as the appellate court to consider the appropriateness or otherwise of the conviction and sentence. The approach in assessing the prospects of success is not to ask whether the appeal will or should succeed but whether it is arguable or has substance, in the sense of it not being manifestly doomed to failure. If the appeal is not a predictable failure or the inquiry as to whether it has prospects of success is reached only after what approximates a hearing of the appeal itself then the court must be inclined to conclude that the appeal has prospects of success.