MZIMAZISI KHUMALO

versus

THE STATE

HIGH COURT OF ZIMBABWE

MOYO J

BULAWAYO 22 MARCH 2018 AND 29 MARCH 2018

Bail Application

K Sibanda for the applicant

Ms S Ndlovu for the respondent

            MOYO J:       This is an application for bail pending appeal.  The appellant was convicted on his own plea of guilt by the magistrate sitting at Kezi, of assault as defined in section 89 of the Criminal Law Codification and Reform Act [Chapter 9:23] (hereinafter referred to as the Code).  He was sentenced to 12 months imprisonment.

            He has applied for a review of the proceedings in the court a quo and he cited failure by the magistrate to comply with section 163A of the Criminal procedure and Evidence Act [Chapter 9:07] in that he did not explain to the accused person his rights to legal representation.  Counsel for the appellant submits that if he had been afforded that opportunity he would have elected to be legally represented and therefore a lawyer would have either assessed the facts and circumstances of the assault in order to present a defence and that even if he would have pleaded guilty, a lawyer would have submitted more meaningfully on sentence so much so that a different sentence would have been meted out.

            The respondent has opposed this application on the basis that there are no prospects of success on review.

            The facts of the matter are that the accused person who is aged 22 years, went to complainant’s homestead on the morning of 2 January 2018 and assaulted complainant in his bedroom hut while he slept.   He assaulted complainant with a knobkerrie on the ribs and also