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

Key Facts

Issues

• The first applicant's appeal challenges the trial court's finding on witness credibility. The court determined that the trial court's assessment was within its province and did not defy logic or common sense, citing cases such as S v Mlambo and R v Dhlumayo. Therefore, there are no reasonable prospects of success on appeal, leading to the denial of bail.
• The second applicant's appeal questions the sufficiency of evidence linking him to the offense. The court found the evidence suspect and that multiple inferences could be drawn, resulting in reasonable prospects of success on appeal. Consequently, bail was granted with specific conditions.

Holdings

• The court denied Chester Ncube bail pending appeal as there were no reasonable prospects of success on his appeal against conviction and sentence.
• The court granted Collen Ncube bail pending appeal as there are reasonable prospects of success on his appeal, with conditions of $50,000 deposit and weekly reporting.

Remedies

• The second applicant was granted bail pending appeal with the following conditions: (a) deposit $50,000 with the court registrar; (b) report weekly every Friday between 0600 and 1800 hours until the appeal is resolved. This was based on reasonable prospects of success on appeal and suspect evidence linking him to the offense.
• The first applicant's application for bail pending appeal was refused as there were no reasonable prospects of success on appeal. The court cited cases such as S v William 1980 ZLR 466(A) and R v Muller 1957(4) SA 642(A) to support this decision.

Legal Principles

• In bail pending appeal cases, the presumption of innocence no longer exists, requiring applicants to establish positive grounds for bail as per S v Tengende and Mahachi v S HB-111-04.
• The trial court's factual findings regarding witness credibility are not subject to appellate review unless they are illogical or irrational, as established in S v Mlambo and other cited authorities.
• The burden lies with the applicant to demonstrate positive grounds for bail when seeking release pending appeal, particularly where witness identification is questionable.

Precedent Name

• R v Muller
• Mbanda v S
• S v Tengende & Ors
• S v William
• Mahachi v S
• Kombayi v S
• R v Dhlumayo & Anor
• S v Mlambo
• Soko v S

Judge Name

Passage Text

• 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.
• 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.
• There is nothing grossly irregular in the proceedings that can discern. The trial court did not act capriciously. There are no reasonable prospects of success on appeal. The 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).