Court name
Supreme Court of Zimbabwe
Case number
SC 21 of 2003
Crim. Application 107 of 2003

S v Labuschagne (07/03) (SC 21 of 2003, Crim. Application 107 of 2003) [2003] ZWSC 21 (17 June 2003);

Law report citations
Media neutral citation
[2003] ZWSC 21
















REPORTABLE
(39)


Judgment
No. SC 21/03


Crim.
Application No. 107/03








RUSSEL
WAYNE LABUSCHAGNE v THE STATE








SUPREME
COURT OF ZIMBABWE


HARARE,
18 JUNE 2003








M
Mahlangu
,
for the applicant





R
Tokwe
,
for the respondents








Before:
GWAUNZA JA, In Chambers, in terms of s 5(1) of Statutory
Instrument 290/91









GWAUNZA JA: At the conclusion
of the hearing of this matter, I dismissed the application – which
was for bail pending appeal
– and indicated the full reasons for
the judgment would follow. These are the reasons.






The
applicant was convicted in the High Court of murder with constructive
intent. He was sentenced to fifteen years’ imprisonment.
He
applied to the same judge for, and was granted, leave to appeal to
this Court against his conviction and sentence. His subsequent
application for bail pending the appeal was dismissed. He has now
filed this application in terms of s 5(1) of Statutory
Instrument
290/91. Given the provisions of ss 121 and 122 of
the Criminal Procedure and Evidence Act [
Chapter 9:07],
the application is in effect an appeal against the refusal by the
High Court to admit the applicant to bail pending appeal.






A consideration of the
background to the application is pertinent. The applicant was
charged with murder, it being alleged that
he caused the death by
drowning of Wilson Mudimba. After assessing the evidence
placed before him during the trial, the learned
judge
a
quo
, relying mostly on
the evidence of the State witness, Siansole Muchimba (“Muchimba”),
accepted as proved that:






(i) The applicant, who on the day
in question was driving his speedboat along Sinamwenda River in
Binga, came upon the deceased and
his friend, Muchimba, who were in a
fishing canoe in the middle of the same river, 35–40 metres from
the riverbank and in water
that was 9–10 metres deep.







(ii) The applicant then firstly
cut the fishing nets previously set by Muchimba and the deceased, and
then rammed his speedboat into
the side of their canoe, capsizing it.







(iii) Muchimba and the deceased
were thrown into the river, forcing the latter shortly thereafter to
swim to the speedboat and cling
with both hands to its side. With
the assistance of his co-accused who held the deceased by one hand,
the applicant used the oar
from the capsized canoe to hit the
deceased on and about the head and body, causing him to again fall
into the river.







(iv) During the process in which
the applicant was assaulting the deceased, one intended blow missed
its target (the deceased) and
landed on the speedboat, resulting in
the oar breaking into two.





(v) The
deceased swam to a tree stump in the river and clung to it. After
unsuccessfully trying to catch Muchimba, who had started
to swim
towards the shore, the applicant drove the speedboat towards where
the deceased was and rammed it into him.







(vi) The deceased lost his grip
on the tree stump, shouted to Muchimba that he was “dying” and
sank into the river.







(vii) The deceased did not emerge
from the river. His body was, in fact, never recovered, the
assumption being that he had drowned.







(viii) The applicant was seen by
Muchimba seemingly, and briefly, searching for the deceased, after
which he sped away.







The court a
quo
was satisfied on
the evidence of Muchimba, Mwindo (the deceased’s brother-in-law)
and Makore, that after the applicant had sped
away these three
approached one Michael Shaw (“Shaw”) for assistance. They
wanted him to radio news of the deceased’s disappearance
into the
river to the police at Binga. Mr Shaw was reluctant to accede
to the request without first speaking to the applicant.
He asked
the trio to come back the following day. They duly did so early in
the morning and observed, as they approached Shaw’s
house, the
applicant leaving the same house. Having received no co-operation
from Shaw, the three decided to go to the river and
locate the
deceased’s body. They canoed to the tree stump to which the
deceased had clung and all noticed traces of blood on
it. After
failing to locate the body, the three went to a place called Chibuyu
to telephone the police at Siabuwa.






In
the course of the next few days, when the police and the sub-aqua
unit went to the river to examine the deceased’s canoe and
search
for the deceased’s body, a cap that the applicant had worn on the
day in question, and which he had lost, as well as one
part of the
oar that had broken into two during the attack on the deceased, were
recovered. The appellant was eventually arrested.







The learned trial judge was
impressed by Muchimba as a witness. He found him to be consistent,
honest and credible in his evidence,
despite the lengthy
cross-examination that he was subjected to. The learned judge also
found that despite some minor differences
– essentially matters of
detail – in the evidence of Muchimba, Mwindo and Makore, their
evidence had been credible. More importantly,
the learned judge
found the evidence of Mwindo and Makore, on the blood seen on the
tree stump to which the deceased had clung, corroborated
that of
Muchimba.






The learned judge was not
impressed with the evidence of Shaw, whom he described as a
“reluctant” witness. He found, however,
that albeit reluctant
and obviously trying not to incriminate the applicant, Shaw had,
perhaps without meaning to, corroborated the
evidence of Muchimba
that the applicant had rammed into the deceased’s canoe, capsizing
it, and that of the two occupants of the
canoe, only one had swum to
the river bank and escaped. The one was Muchimba. Shaw’s
evidence was that this was what the applicant
had told him.





Contrary
to this evidence the applicant had tried to convince the court that
the two, Muchimba and the deceased, had scrambled onto
the riverbank
and disappeared into the bush upon seeing him approach in his
speedboat.







It is trite that in the absence
of a misdirection on the part of the trial court, this Court will not
interfere with the lower court’s
finding on credibility (see
S
v Isolano
1985 (1) ZLR
62 (SC)).







The applicant avers in effect
that the learned trial judge misdirected himself in finding that
Muchimba was a reliable witness, especially
given the facts that the
case against him had been based on the evidence of a single witness,
i.e. Muchimba, and that there were
“material” discrepancies
between his oral evidence and that contained in the outline of the
State case, his warned and cautioned
statement to the police and the
evidence of Mwindo, Shaw and Makore.






I
am not persuaded by this averment.





Firstly,
while Muchimba may have been a single witness, his evidence was
corroborated in very material respects by the evidence of
Mwindo,
Makore and Shaw. The evidence of Mwindo and Makore that they saw
traces of blood on the tree stump in the river supported
the evidence
of Muchimba, not only in respect of the deceased’s having clung to
that stump, but also in respect of his having sustained
injuries from
which he bled. The injuries, according to Muchimba, were inflicted
on the deceased by the applicant, either when he
hit him about the
head with the oar or when he rammed into him as he clung to the tree
stump. Muchimba’s evidence was also corroborated,
albeit
unwittingly, by Shaw. As the learned trial judge found, Muchimba,
Mwindo and Makore had no reason to lie against the applicant.

Mr Shaw was, in fact, at great pains not to incriminate the
applicant.





Other
evidence to support Muchimba’s evidence was the part of broken oar
and the applicant’s cap recovered not far from the scene
of the
attack. The broken oar served to disprove the evidence of the
applicant that Muchimba and the deceased ran away upon seeing
his
boat approaching. I am satisfied that the totality of Muchimba’s
evidence, and the corroboration it received from Makore,
Mwindo, Shaw
and the recovery of the broken oar and the applicant’s cap, left
little or no room for doubt concerning the credibility
of Muchimba’s
evidence.







I am, in the result, unable to
find that the learned trial judge misdirected himself on his finding
on the credibility of the State
witnesses.







The applicant is clearly mistaken
in his averment that he was found guilty of murder with constructive
intent, bordering on culpable
homicide. The evidence before me shows
the applicant made the same submission in his application for bail
pending appeal in the
court
a
quo
. The learned
trial judge, in his ruling on the matter, made it clear such had not
been his finding. He noted as follows on p 2
of his judgment:







“The submission is clearly
wrong. At no stage did the court find that the constructive intent
bordered on culpable homicide.
The State may have accepted the view
held by the defence but that did not bind the court. So no such
finding was made in the
court’s judgment. Instead the
constructive intent in the matter is closer to actual intent than
culpable homicide”.










In the light of this statement,
the applicant’s submission that there is every prospect that this
Court on appeal might acquit him
of murder or impose a conviction of
culpable homicide holds little merit.







The applicant submits further
that even if the Court were to find he did ram his boat into the
deceased as he clung to the tree stump,
it is likely to conclude he
had no intention to commit murder, especially in light of Muchimba’s
evidence that he had looked for
the deceased after he fell into the
river. The learned trial judge addressed this submission, and I
find no fault with his conclusion,
which was that the probabilities
favoured a finding that the applicant had searched for the deceased
in order to further assault
him. This, he found, was evidenced by
the fact that the applicant was bent on harming, not rescuing, the
deceased and Muchimba.
He had assaulted the deceased while he clung
to his (the applicant’s) speedboat; he had chased after Muchimba
and would have
harmed him had he not made good his escape; and he had
then rammed his boat into the deceased as he clung to the tree stump.
I
accordingly find to be unassailable the learned trial judge’s
conclusion that the evidence before the court supported a finding
that rescuing either of his victims on that day was not uppermost in
the applicant’s mind, rather, the opposite.







The applicant also submitted that
he had hitherto established a good record in terms of complying with
his bail conditions and not
absconding. He submitted that he
“religiously and conscientiously” attended court and adhered to
his bail conditions from December
2000 when he was admitted to bail;
that he continued to do this even after he had been indicted for
trial and also after his application
for discharge at the close of
the State case was dismissed.







The learned trial judge correctly
pointed out that these submissions had clearly “lost sight” of
the fact that the applicant now
stands convicted of murder, and has
been sentenced to a long term of imprisonment. He therefore, the
learned judge noted, had enough
reason to want to abscond.







The learned judge’s finding
finds support in the following dictum in
S
v Tengende
1981 ZLR
445 at 448, which I have relied on in reaching the decision I have in
this matter:







“… But bail pending appeal
involves a new and important factor; the appellant has been found
guilty and sentenced to imprisonment.
Bail is not a right. An
applicant for bail asks the court to exercise its discretion in his
favour and it is for him to satisfy
the court that there are grounds
for so doing. In the case of bail pending appeal, the position is
not, even as a matter of practice,
that bail will be granted in the
absence of positive grounds for refusal; the proper approach is that
in the absence of positive
grounds for granting bail, it will be
refused”.









The learned judge in R
v Mtembu
1961 (3) SA
468 at 471 addressed his mind to the specific situation where, like
in
casu,
leave to appeal had been granted, and noted:







“The
mere fact that leave to appeal has been granted does not,
per
se,
entitle a
convicted person to be allowed out on bail – it seems to me that
the
onus
of establishing that justice will not be endangered and that there is
a reasonable prospect of success, is upon the applicant”.











Having considered all the
evidence placed before me, and based on the authorities cited above,
I do not find that the applicant has
proved there are positive
grounds for granting him bail pending appeal. I am also not
satisfied he has discharged the
onus
of establishing that justice will not be endangered by his admission
to bail, nor that he enjoys reasonable prospects of success
on
appeal. I would in this latter respect echo the words of the
learned trial judge in the last paragraph of his judgment:







“… I wish to reiterate what
has been repeatedly stated by our courts and indeed by courts in
other jurisdictions, that it is improper
to allow people convicted of
serious crimes to be walking in the streets instead of serving their
sentences when the prospects of
success are non-existent. Society
would lose faith in the system and revolt. This is a proper case,
in my view, where the applicant
should prosecute his appeal while
serving his sentence.”







Hence my dismissal of the
application.





















James,
Moyo-Majwabu & Nyoni
,
appellant’s legal practitioners


Attorney
General’s Office
,
respondent’s legal practitioners