Court name
Supreme Court of Zimbabwe
Case number
SC 94 of 2005
Civil Application 253 of 2005

S v Chivhayo (53/05) (SC 94 of 2005, Civil Application 253 of 2005) [2005] ZWSC 94 (29 November 2005);

Law report citations
Media neutral citation
[2005] ZWSC 94













REPORTABLE
ZLR (78)


Judgment
No. SC. 94/05


Civil
Application No. 253/05








WICKNEL
MUNODAANI CHIVHAYO v THE STATE








SUPREME
COURT OF ZIMBABWE


HARARE,
NOVEMBER 30, 2005








E
Matinenga
, for the Appellant





M
Nemadire
, for the respondent





Before:
SANDURA JA, In Chambers, in terms of s 123(1)(a)(i) of the
Criminal Procedure and Evidence Act [Chapter 9:07]






The
Appellant (“Chivhayo”) was charged in the High Court with
contravening s 63(1)(b) of the Serious Offences (Confiscation
of
Profits) Act [Chapter 9:17], which reads as follows:






“63. Money-laundering





(1) A
person shall be guilty of money-laundering if he –






(a) …






(b) receives, possesses,
conceals, disposes of, brings into or removes from Zimbabwe, any
money or other property which is the proceeds
of crime;






and
he knows or ought to have reasonably known that the money or other
property was derived or realised, directly or indirectly, from
the
commission of an offence.”







The allegations against
Chivhayo were that on 4 and 5 July 2002 he unlawfully received some
money which was the proceeds of crime
and which was in the form of
three cheques which he deposited into his bank account, and that on
4, 5, 6, 8, and 9 July 2002 he withdrew
the money from his bank
account and disposed of it, when he knew or ought to have known that
the money was derived or realised, directly
or indirectly, from the
commission of an offence.





Alternatively,
Chivhayo was charged with theft by false pretences, the allegation
being that during the period extending from 28 June
2002 to
15 July 2002 he unlawfully and with intent to steal
misrepresented to Digby Sean Nesbitt that he had deposited
R837 000.00
into Shane Peter Nesbitt’s bank account in
South Africa in exchange for $37 665 000.00, which sum
Digby Sean Nesbitt
was induced to hand over to him, whereas the sum
of R837 000.00 had not in fact been deposited into Shane Peter
Nesbitt’s
bank account.





Chivhayo
pleaded not guilty to both charges. He was, however, found guilty
of the main charge and was sentenced to five years’
imprisonment
with labour, of which two years’ imprisonment with labour was
conditionally suspended. He applied for leave to appeal
against the
conviction but the application was dismissed by the learned Judge in
the court a quo on the ground that there were virtually
no prospects of success on appeal. His application for bail pending
appeal was also dismissed.





Consequently,
Chivhayo appealed against the learned Judge’s refusal to grant him
leave to appeal and bail pending appeal. Both
matters were placed
before me in Chambers. After hearing both counsel, I granted the
application for leave to appeal, but dismissed
the application for
bail pending appeal and gave my brief reasons for doing so. That
was on 30 November 2005.





Subsequently,
on 22 February 2006, Chivhayo’s legal practitioner requested
the full reasons for my decision to uphold the
learned trial Judge’s
dismissal of the application for bail pending appeal. I now set
them out.





In
the first place, I was satisfied that the prospects of success on
appeal were very slim indeed. However, notwithstanding that
fact, I
granted Chivhayo leave to appeal because I was reluctant to take the
very serious step of denying him the opportunity to
appeal against
his conviction by the High Court.





As
BARON JA said in S v Tengende and Ors 1981 ZLR 445 (S) at
446H-447A:





“The
decision whether or not to grant leave to appeal depends, of course,
on prospects of success. But how good those prospects must
be
raises the important issue of approach. It would, I think, be a
very serious step, and one which I would be reluctant to take
save in
a very clear case, to deny a man the opportunity to appeal from a
conviction at first instance”.





However,
it does not follow that once leave to appeal is granted there is no
reason for refusing bail pending appeal. In this
regard, BARON JA
had this to say in the
Tengende
case
supra
at 447H-448C:





“In
essence (counsel’s) argument reduces itself to this: once there
are reasonable prospects of success on appeal … there is no
reason
for refusing bail. This submission loses sight of the essential
difference between bail pending trial and bail pending appeal.
In
either case bail is a matter for the discretion of the court, but
bail pending trial will not normally be refused on charges
of this
nature (i.e. theft of a large amount of money) unless there are
positive reasons for refusal, such as the danger of the accused
absconding or of interference with witnesses. 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 Appellant 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.”





Similar
views were expressed by FIELDSEND CJ in
The
State v Williams
1980
ZLR 466 (S). At 468 F-H the learned CHIEF JUSTICE said:





“On
the other hand even where there is a reasonable prospect of success
on appeal bail may be refused in serious cases notwithstanding
that
there is little danger of an Appellant absconding. Such cases as
Rex
v Milne and Erleigh (4)

1950 (4) SA 601 and
R v
Mthembu
1961 (3) SA
468 stress the discretion that lies with the judge and indicate that
the proper approach should be towards allowing liberty
to persons
where that can be done without any danger to the administration of
justice. In my view, to apply this test properly
it is necessary to
put in the balance both the likelihood of the Appellant absconding
and the prospects of success. Clearly, the
two factors are
inter-connected because the less likely are the prospects of success
the more inducement there is on an Appellant
to abscond. In every
case where bail after conviction is sought the
onus
is on the Appellant to show why justice requires that he should be
granted bail.”






In the present case, bearing in
mind the fact that the prospects of success on appeal were very slim
and the long prison sentence
imposed by the High Court, I was
satisfied that if released on bail Chivhayo would be greatly tempted
to abscond. The ease with
which a person can leave this country
without a passport or other travel documents is well known.





Although
in my
ex tempore
reasons for the refusal of bail pending appeal I referred to a letter
written by a chief law officer in the Attorney-General’s
Office to
the registrar of the High Court, stating that Chivhayo had failed to
appear before the trial judge on 6 and 14 July 2005,
when the
judgment was to be handed down, the contents of that letter were by
no means the main reason for the refusal of bail.





In
any event, this Court has stated in a number of cases the basis on
which it would interfere with the High Court’s decision
on bail.





Thus,
in
S v Chikumbirike
1986 (2) ZLR 145 (SC) at 146 F-G BECK JA said the
following:





“The
next matter to be decided is whether this Court in hearing the appeal
should treat it as an appeal in the wide sense, that is
to say, that
it is to be treated as if it were a hearing
de
novo
. Once again
that matter has been decided by the case of
The
State v Mohamed
1977
(2) (SA) 531 at 542 B-C where TROLLIP JA said that in an
appeal of this nature the Court of Appeal will only interfere
if the
court
a quo
committed an irregularity or misdirection or exercised its discretion
so unreasonably or improperly as to vitiate its decision.”






Similarly, in Aitken
and Anor v Attorney-General

1992 (1) ZLR 249 (S) at 252 E-F GUBBAY CJ said:





“While
the JUDGE PRESIDENT, in considering the appeal, was at liberty to
substitute his own discretion for that of the magistrate on
facts
placed before the latter, the present appeal is one in the narrow
sense. The powers of this Court are, therefore, largely
limited.
In the absence of an irregularity or misdirection, this Court has to
be persuaded that the manner in which the JUDGE PRESIDENT
exercised his discretion was so unreasonable as to vitiate the
decision reached. See
S
v Barber
1979 (4) SA
218 (D) at 220 E-G;
S
v Chikumbirike
1986
(2) ZLR 145 (S) at 146 F-G.”





In
the present case, Chivhayo failed to establish that in refusing bail
pending appeal the learned trial Judge committed an irregularity
or
misdirection, or that the manner in which the learned Judge exercised
his discretion was so unreasonable or improper as to vitiate
his
decision. There was, therefore, no basis on which I could have
interfered with the learned Judge’s decision.





In
the circumstances, the appeal against the learned trial Judge’s
decision had to be dismissed.














Manase
& Manase
,
Appellant's legal practitioners