IN CHAMBERS
GOWORA JA: This is an
appeal against the refusal of bail in terms of section 121(1)(b) as
read with section 121(8)(b) of the Criminal Procedure and Evidence
Act [Chapter 9:07], “the Act” or alternatively with Rule 67(1),
(2) and (3) of the Supreme Court Rules, 2018.
FACTUAL BACKGROUND
The appellant is Priscah
Mupfumira, a politician and a Member of Parliament in the Government
of Zimbabwe. Until recently she was also the Minister of Tourism and
Hospitality.
On 25 July 2019 she was arrested
by members of the Zimbabwe Anti-Corruption Commission and is facing
seven counts of criminal abuse of office in terms of section
174(1)(a) of the Criminal Law (Codification and Reform) Act [Chapter
9:23].
In the first Count to the charges
levelled against her, it was alleged that sometime in 2014 after
having been appointed the Minister of Public Service, Labour and
Social Welfare, the appellant, taking advantage of her position as
the Minister responsible for the National Social Security Authority
(NSSA) a parastatal under the ministry, instructed one Ngoni Masoka,
the then Permanent Secretary of the ministry, to obtain on her behalf
an advance in the sum of US$90,000 from NSSA for the purchase of a
Toyota Land Cruiser, registration number ADX 0878 knowing full well
that NSSA had no provision to avail such loans. It is alleged that
thereafter the appellant received an official vehicle Range Rover
from the Government which she accepted in the knowledge that she had
already obtained another ministerial vehicle.
In the second Count, it is
alleged that sometime in 2016, and on diverse occasions, using her
position as Minister, the appellant unlawfully and corruptly directed
the payment to herself sums of money totalling US$101,814.80 from
NSSA's corporate Social Responsibility Budget which money she
received and used outside the mandate of NSSA.
Regarding the third Count, it is
alleged that the appellant directed NSSA to set up a budget of
US$350,000 for her ministry's financial demands on top of the
financial demands on the normal NSSA corporate social responsibility
budget. It was alleged further that during that year the appellant
claimed a total of US$313,520.03 for activities furthering her
personal and political interests.
In respect of the fourth Count,
the allegation was to the effect that sometime in 2014, the appellant
abused her duty as a public officer by showing favour to Metbank when
she instructed NSSA to financially bail out Metbank. This was against
the advice of the NSSA Risk Management department which raised
concerns over the bank's financial vulnerability and its high risk
default status. As a result, due to the appellant's undue
influence, NSSA ended up purchasing four Metbank properties at an
inflated sum of US$4,908,750.
As regards the fifth Count, the
allegation against her was that sometime in March 2017, the appellant
criminally abused her public office by again showing favour to
Metbank when she directed NSSA to consider an investment proposal
from the bank for command agriculture. This was against NSSA's Risk
Management advice. It was alleged that Metbank intended to borrow
US$13,000,000 from unrelated sources and requested NSSA to provide it
with double cover security in the form of Treasury Bills. As a result
of the appellant's undue influence NSSA is said to have sent
Treasury Bills valued at US$62,250,000 to Metbank on custodial
arrangement but Metbank ended up using Treasury Bills valued at
US$37,035,000 under unclear circumstances and which are currently
unaccounted for, to the prejudice of NSSA.
In the sixth Count the appellant
is alleged to have abused her duty as a public official by directing
one Kurauone Chiota, the then NSSA Chief Property Investment Officer,
into engaging NSSA in low cost housing projects with Metbank within
48hours. As a consequence of that directive, NSSA is alleged to have
entered into off-take housing projects for St Ives and State land in
Chinhoyi with Metro Realty, an entity related to Metbank, without
carrying out due diligence as is the norm. The projects are valued at
US$6,145,000 and $ 4,710, 000 respectively.
In the seventh Count it is
alleged that sometime in August 2017, the appellant corruptly used
her position by directing NSSA to enter into a contract with Drawcard
(Pvt) Ltd for a $6,500,000 housing project in Munyeza, Gweru without
going to tender and without a Board resolution, to the prejudice of
NSSA.
She appeared for initial remand
on 26 July 2019, before the Acting Chief Magistrate. Counsel for the
State then applied for the appellant to be remanded in custody for 21
days. He produced a certificate issued by the Prosecutor General in
terms of section 32(3b) of the Criminal Procedure and Evidence Act
[Chapter 9:07].
In response, the appellant raised
an objection to the production of the certificate. It was contended
on her behalf that section 32(3b) had been rendered dysfunctional
because of the provisions of section 50(1) of the Constitution, 2013
which made bail a Constitutional right for every accused person which
right could not be taken away on the basis of a mere opinion from the
Prosecutor General. Thereafter, counsel for the appellant, proceeded
to attack the charges count by count thereby submitting that there
was no reasonable suspicion that the appellant had committed any of
the alleged offences. Counsel for the appellant then moved for a
hearing of a bail application.
The Acting Chief Magistrate held
that he was satisfied that there was a reasonable suspicion that the
appellant had committed the offences with which she was being
charged. He concluded that all the requirements necessary for the
production of the certificate in terms of section 32 had been met and
he accordingly accepted its production. He then invoked section
32(3c) and held that the effect of the production of the certificate
was to oust the court's jurisdiction in determining issues related
an accused person's admission to bail during the lifespan of the
certificate. In the result, he refused to entertain the appellant's
bail application. He thereafter ordered that the appellant be
detained for 21 days.
This is the determination that is
the genesis to the appeal before the court a quo.
THE APPEAL TO THE HIGH COURT
On the 31 July 2019, the
appellant approached the High Court. She filed a bail statement in
terms of Rule 6 of the High Court of Zimbabwe Bail Rules S.I. 109/91.
Rule 6 provides as follows:
(1) An appeal in terms of section
111 of the Criminal Procedure and Evidence Act [Chapter 9:07] by a
person aggrieved by the decision of a magistrate on an application
relating to bail or the entering by him into recognizances, shall be
noted by filing with the Registrar a written statement setting out—
(a) the name of the appellant;
and
(b) the appellant's residential
address; and
(c) if the appellant is employed,
his employer's name and address and the nature of his employment;
and
(d) where the appeal is brought
against the decision of a magistrate before the appellant has been
convicted —
(i) the offence with which the
appellant is charged; and
(ii) the court by which and the
date on which the appellant was last remanded; and
(iii) the court criminal record
book number, if that number is known to the applicant; and
(iv) the police criminal record
number of the case, the name of the police officer in charge of
investigating the case and the police station at which he is
stationed, if those particulars are known to the applicant; and
(e) where the appeal is brought
against the decision of a magistrate after the appellant has been
convicted and sentenced —
(i) the offence of which the
appellant was convicted and the sentence that was imposed; and
(ii) the court or courts which
convicted the appellant and imposed sentence upon him; and
(iii) the court criminal record
book number, if the number is known to the applicant; and
(iv) the date or dates on which
the applicant was convicted and sentenced;
(f) where the appeal is brought
against a refusal by a magistrate to grant bail —
(i) the grounds on which it was
refused, if the grounds are known to the appellant; and
(ii) the date on which it was
refused; and
(g) where the appeal is brought
in relation to any recognizance or condition thereof—
(i) the terms of the recognizance
or condition concerned; and
(ii) the date on which the
magistrate required the recognizance to be entered into or imposed
the condition, as the case may be; and
(h) the grounds on which the
applicant seeks release on bail or the revocation or alteration of
the recognizance or condition, as the case may be.”
However, on close scrutiny it
becomes evident that the appellant sought reliance on sections 116
and 117 of the Act, which sections apply to initial applications for
bail. The relevant section of the Act, section 121, was not
applicable for reasons that will be discussed later during the course
of this judgment. In my view, the appeal filed by the appellant to
the High Court having been made in terms of sections 116 and 117 was
irregular. Those sections are relevant to initial applications for
bail before a court of first instance, which in this case the High
Court was not, nor was it the contention by the appellant that it
was.
Section 117 provides in relevant
part as follows:
“117A
Application for bail, bail proceedings and record thereof
(1) Subject to the proviso to
section 116, an accused person may at any time apply verbally or in
writing to the judge or magistrate before whom he or she is appearing
to be admitted to bail immediately or may make such application in
writing to a judge or magistrate.
(2) Every written application for
bail shall be made in such form as may be prescribed in rules of
court.
(3) Every application in terms of
subsection (2) shall be disposed of without undue delay.
(4) In bail proceedings the court
may —
(a) postpone such proceedings;
(b) subject to subsection (5),
receive —
(i) evidence on oath, including
hearsay evidence;
(ii) affidavits and written
reports which may be tendered by the prosecutor, the accused or his
or her legal representative;
(iii) written statements made by
the prosecutor, the accused or his or her legal representative;
(iv) statements not on oath made
by the accused;
(c) require the prosecutor or the
accused to adduce evidence;
(d) require the prosecutor to
place on record the reasons for not opposing bail.
(5) In bail proceedings the
accused is compelled to inform the court whether —
(a) the accused has previously
been convicted of any offence; and
(b) there are any charges pending
against him or her and whether he or she has been released on bail in
respect of those charges.
(6) Where the legal
representative of an accused submits the information referred to in
subsection (5) the accused shall be required by the court to declare
whether he or she confirms such information.
(7) The record of the bail
proceedings, excluding the information referred to in subsection (5),
shall form part of the record of the trial of the accused following
upon such bail proceedings: Provided that if the accused elects to
testify during the course of the bail proceedings the court must
inform him or her that anything he or she says may be used against
him or her at his or her trial and such evidence becomes admissible
in any subsequent proceedings.
(8) Any accused who wilfully —
(a) fails or refuses to comply
with subsection (5); or
(b) furnishes the court with
false information required in terms of subsection (5); shall be
guilty of an offence and liable to fine not exceeding level seven or
to imprisonment for a period not exceeding two years or both.
(9) The court may make the
release of an accused subject to conditions which, in the court's
opinion, are in the interests of justice.
(10) Notwithstanding anything to
the contrary contained in any law, no accused shall, for the purposes
of bail proceedings, have access to any information, record or
document relating to the offence in question, which is contained in,
or forms part of, a police docket, including any information, record
or document which is held by any police officer charged with the
investigation in question, unless the Prosecutor-General otherwise
directs: Provided that this subsection shall not be construed as
denying an accused access to any information, record or document to
which he or she may be entitled for the purposes of his or her
trial.”
The appellant was not appearing
before the High Court in proceedings under the Act. She appeared
before the Acting Chief Magistrate on initial remand and it is to
that court that an application under section 117 should have been
made and determined. No such application was made or determined.
It becomes evident therefore that
reliance on section 117 by the appellant for the determination of an
appeal under Rule 6 was incorrect. The proceedings before the High
Court were therefore irregular. Over and above this, it becomes
pertinent to consider whether the appeal, notwithstanding its
defective nature, was properly before the court a quo.
WAS THE APPEAL PROPERLY BEFORE
THE COURT A QUO?
In the bail statement filed by
her in accordance with the requirements of Rule 6, the appellant
stated that the Magistrates' Court erred in refusing to hear her
bail application. It was contended further that the appeal before the
High Court was an appeal in the wider sense and that as a consequence
the High Court was empowered to hear the application on the merits.
In opposition, the respondent
raised two points in limine. The first preliminary point raised by
the State was to the effect that there was no proper appeal before
the High Court. It was contended that Rule 6 under which the
appellant had approached the court only related to a situation where
bail had been refused or in relation to the recognizance relating to
bail. The rule, it was submitted did not apply to situations where
the magistrate had declined jurisdiction as was the case in the
present.
The second point raised was that
the admission of the certificate by the magistrate pursuant to the
provisions of section 32(3b) of the Criminal Procedure and Evidence
Act ousted the jurisdiction of the court to admit an accused person
to bail during the lifespan of the certificate and that as a
consequence the High Court just like the Acting Chief Magistrate in
the court a quo had no jurisdiction to entertain the bail
application.
The court a quo dismissed both
preliminary points and proceeded to hear the appellant on the merits
of the bail application. Thereafter, the appellant went into the
merits of the bail application and made submissions in support
thereof and the bail conditions she proposed.
The court a quo also determined
the issue, whether or not section 32(3b) and (3c) are not in
conformity with the Constitution and it was held that they were not.
The court a quo held that the Magistrates Court erred when it refused
to determine the bail application and as such its consequent order
for the 21 day detention of the appellant should be set aside.
On the merits, the appellant
stated that she had been travelling in and out of the country on
State business notwithstanding these allegations being levelled
against her. She offered RTGS3,000 as bail deposit and to surrender
title deeds for a property, her two passports, non-interference with
witnesses as well as reporting to a local police station every once a
week.
The court a quo also heard
evidence from the investigating officer as to the reasons by the
State for opposing the grant of bail. He told the court that the
appellant is a politician, member of parliament and Cabinet minister
and that therefore she was a very powerful individual in society.
The investigating officer further
stated that she should be held in custody.
The court a quo, held that the
issue for determination in the present circumstances was whether the
appellant was likely to abscond and avoid standing trial.
In dealing with this question the
court had regard to the fact that the appellant was well travelled
and had a ten year visa to the United Kingdom. The court found that
in light of the case that was building against her, it was highly
likely that the appellant would abscond court. The court a quo took
cognisance of the amount of money involved in the present case and
held that there was a likelihood of absconding. In view of these
factors taken cumulatively the court a quo dismissed the appeal.
An appeal against the refusal of
bail or the giving of recognizance is provided for under section 121
of the Act. That section provides:
“121
Appeals against decisions regarding bail
(1) Subject to this section,
where a judge or magistrate has admitted or refused to admit a person
to bail—
(a) the Prosecutor-General or the
public prosecutor, within forty-eight hours of the decision; or
(b) the person concerned, at any
time; may appeal against the admission to or refusal to bail or the
amount fixed as bail or any conditions imposed in connection with
bail.
(2) An appeal in terms of
subsection (1) against a decision of —
(a) a judge of the High Court,
shall be made to a judge of the Supreme Court;
(b) a magistrate, shall be made
to a judge of the High Court.
(3) Where a judge or magistrate
has admitted a person to bail, and an appeal is noted by the
Prosecutor- General or public prosecutor under subsection (1), the
decision to admit to bail remains in force unless, on the application
of the Prosecutor-General or public prosecutor, the judge or
magistrate is satisfied that there is a reasonable possibility that
the interests of justice may be defeated by the release of the
accused on bail before the decision on appeal, in which event the
judge or magistrate may suspend his or her decision to admit the
person to bail and order the continued detention of the person for a
specified period or until the appeal is determined, whichever is the
shorter period.
(4) An appeal in terms of
subsection (1) by the person admitted to bail or refused admission to
bail shall not suspend the decision appealed against.
(5) A judge who hears an appeal
in terms of this section may make such order relating to bail or any
condition in connection therewith as he considers should have been
made by the judge or magistrate whose decision is the subject of the
appeal.
(8) There shall be no appeal to a
judge of the Supreme Court from a decision or order of a judge of the
High Court in terms of paragraph (b) of subsection (2), unless the
decision or order relates to the admission or refusal of admission to
bail of a person charged with any offence referred to in -
(a) paragraph 10 of the Third
Schedule; or
(b) the Ninth Schedule in respect
of which the Prosecutor-General has issued a certificate referred to
in subsection (3b) of section thirty-two; in which event subsections
(3) to (7) shall apply to such appeal.”
Of particular importance in this
inquiry are the provisions of sections (1)(b) and (4) which make it
clear that an appeal is against the refusal or the grant of bail.
In this case, the magistrate
before whom the appellant appeared on initial remand did not make a
determination on the issue of bail. He did not refuse bail. Instead,
he declined jurisdiction to hear the application based on the
certificate produced in terms of section 32(3b). Thus, as submitted
by the State there could not be an appeal before the High Court
premised on section 121 of the Act because there was no decision to
appeal against.
It is settled law that an appeal
must always be premised on the determination of the court a quo, it
being a logical supposition that the grounds thereof would seek to
impugn the decision being appealed against. Grounds of appeal ought
not to be divorced from the decision appealed against, otherwise the
appeal is deemed irregular.
In casu, the determination of the
Magistrate's Court was centred specifically on the validity of the
certificate of the Prosecutor General and its effect as to the
jurisdictional limits to determine the question of bail. As a result,
the appeal by the appellant to the High Court ought to have raised
issues that were limited to the validity of that certificate and the
refusal of jurisdiction consequent thereto.
Clearly this was not the case
with the appeal brought before the High Court as is evident from the
appeal noted purportedly in terms of Rule 6 of the Bail Rules, which
is applicable to the refusal of bail, or the challenge to
recognizance set by a magistrate when affording an accused person
bail.
The learned magistrate did not
consider issues relating to bail. He made a specific finding that the
certificate was valid and that during its lifetime the jurisdiction
of a court to admit the appellant to bail was ousted by virtue of its
acceptance. That judgment is extant and has not been set aside. Its
effect in my view was to disable the High Court from hearing the
application, for want of a better word, brought by the appellant in
reaction to the determination by the magistrate.
The next issue is the contention
by the State that the High Court, like the Magistrates Court, did not
have jurisdiction once the certificate issued in terms of section
32(3b) was accepted by the magistrate under the section in question.
The proceedings before the
Magistrates Court arose when the State sought to have the appellant
placed on remand consequent to the charges of criminal abuse of
office levelled against her in terms of section 174(1)(a) of the
Criminal Code. After presenting the charges the respondent produced a
certificate from the Prosecutor General in terms of section 32(3b) of
the Criminal Procedure and Evidence Act. Thereafter the respondent
applied that the appellant be remanded in custody for 21 days. The
appellant opposed the production of the certificate to the court on
the basis that section 32(3b) was ultra vires section 50(1) of the
Constitution. The magistrate rejected the argument by the appellant
and went on to say:
“The court has no hesitation to
find all the requirements necessary for the production of the
Prosecutor General's certificate produced in terms of section
32(3b) have been met. The effect of the certificate is to oust this
and every other court's jurisdiction in determining issues relating
to the accused person's admission to bail during its life span. The
court holds that the certificate is valid and effective. I therefore
order the detention of the accused person as prayed for in the
Prosecutor General's certificate.”
Based on this determination, the
appellant launched an appeal to the High Court. It is the correctness
of the appeal that must be explored.
The Acting Chief Magistrate
concluded that the production of the certificate has the effect of
ousting the jurisdiction of the Courts in determining issues relating
to the accused person's admission to bail during its pendency. On
the basis of that reasoning the High Court's jurisdiction to
determine the appellant's matter was ousted. Consequently,
everything that the High Court did would be contrary to the law and
null. The provisions upon which the Acting Chief Magistrate relied
and on which the State premised its preliminary challenge to the
jurisdiction of the court a quo read as follows:
“(3b) Where the person arrested
without warrant is charged with any offence referred to in the Ninth
Schedule and there is produced to the judge or magistrate before whom
the person is brought in terms of this section —
(a) a certificate issued by or on
behalf of the Prosecutor-General stating that, in the
Prosecutor-General's opinion;
(i) the offence in question
involves significant prejudice or significant potential prejudice to
the economy or other national interest of Zimbabwe; and
(ii) the further detention of the
person arrested for a period of up to twenty-one days is necessary
for any one or more of the following reasons -
A. the complexity of the case; or
B. the difficulty of obtaining
evidence relating to the offence in question; or
C. the likelihood that the person
arrested will conceal or destroy the evidence relating to the offence
in question or interfere with the investigation of the offence or
both; and
(b) the following, where the
arrest is made in the circumstances referred to in paragraph (b) of
subsection (1) of section twenty-five —
(i) proof that the arresting
officer was an officer of or above the rank of assistant inspector at
the time of the arrest, or that the arresting officer made the arrest
with the prior leave of such an officer; and
(ii) where the alleged offence
was disclosed through an anonymous complaint, a copy of the complaint
as recorded in accordance with subparagraph (ii) of the proviso to
paragraph (b) of subsection (1) of section twenty-five; the judge or
the magistrate shall, if satisfied that there is a reasonable
suspicion that the person committed the offence, order that person's
detention or issue a warrant for his or her further detention for a
period of twenty-one days or the lesser period specified in the
certificate.
(3c) A person referred to in
subsection (3a) or (3b) shall, unless the charge or charges against
him or her are earlier withdrawn, remain in detention for twenty-one
days or the lesser period specified in a certificate mentioned in
subsection (3b), as the case may be, from the date when an order or
warrant for the person's further detention was issued in terms of
the relevant subsection, and no court shall admit such person to bail
during that period. Provided that the arresting officer or other
officer in authority over him or her shall, at intervals of not more
than forty-eight hours beginning on the date when the order or
warrant for the person's further detention is issued, make a report
to the Prosecutor-General on the progress of the investigations into
the charge or charges against the person in detention, and if the
Prosecutor-General is satisfied on the basis of any such report that
the person's detention is no longer justified, the
Prosecutor-General may order the immediate and unconditional release
of the detained person.”
If regard is heard to the above
provisions, once the magistrate had accepted the certificate upon its
production and, in accordance with the provisions of section (3c) the
only way the High Court would be clothed with jurisdiction to hear
this matter would have been if the appeal was made properly, that is
to say, if the appellant had appealed against the decision of the
court to validate the Prosecutor-General's certificate and give it
full effect.
Therefore the respondent's
second preliminary point also had merit and ought to have been
upheld. The proper course to take for the appellant was to appeal
against the decision to validate the Prosecutor General's
certificate and had a decision been made in its favour, it ought to
have then prayed for the remittal of the matter to the court a quo
for a determination on the merits which is the issue of whether or
not the appellant should be granted bail. This would have been the
correct procedure to adopt. The appellant chose not to follow this
route and embarked upon an appeal not supported by law.
As matters stand, the High Court,
in my view, went outside the purview of its jurisdictional mandate
and determined a bail application that was never before the court a
quo, dealing with a supposed appeal that lacked jurisdictional
foundation. This renders the basic foundation upon which the appeal
was noted shaky. It also affects the matter before me. If there was
nothing before the court a quo, it follows that there is no appeal to
be dealt on the merits before me.
The preliminary points had merit,
and before the court could entertain the appellant, the decision of
the magistrate had to be dealt with properly on the substance.
That being so, it then becomes
evident that the appellant's appeal suffered an incurable defect
and should not have been entertained by the court a quo. The appeal
was a nullity and it is a trite position of our law that nothing can
stand on a nullity. See Mc Foy v United Africa Co. Ltd 1961 93 ALL ER
1169 (CPC). As such the court a quo ought to have upheld the
preliminary point raised by the respondent in which it contended that
the question of bail did not arise in the court a quo. The fact that
it was raised in argument by the appellant does not necessarily mean
that this was an aspect which informed the decision of the court a
quo.
THE DECLARATION BY THE COURT A
QUO THAT SECTION 32(3B) WAS ULTRA VIRES SECTION 50 OF THE
CONSTITUTION
For purposes of completeness, I
must comment on the decision of the court a quo to declare section
32(3b) and (3c) of the Criminal Procedure and Evidence Act
unconstitutional.
This was an issue that was not
brought before the court a quo for determination. An attempt to seek
a declaration as to the constitutionality of the provision through an
application to amend a draft order which sought bail was abandoned.
In the absence of a challenge as to its constitutional validity it
was not open to the court a quo to declare a provision in a statute
unconstitutional.
As far as the law is concerned
these provisions are not ultra vires the Constitution especially if
regard is had to the provisions of section 50(1) of the Constitution.
It states as follows:
“50
Rights of arrested and detained persons
(1) Any person who is arrested —
(a) must be informed at the time
of arrest of the reason for the arrest;
(b) must be permitted, without
delay —
(i) at the expense of the State,
to contact their spouse or partner, or a relative or legal
practitioner, or anyone else of their choice; and
(ii) at their own expense, to
consult in private with a legal practitioner and a medical
practitioner of their choice; and must be informed of this right
promptly;
(c) must be treated humanely and
with respect for their inherent dignity;
(d) must be released
unconditionally or on reasonable conditions, pending a charge or
trial, unless there are compelling reasons justifying their continued
detention; and
(e) must be permitted to
challenge the lawfulness of the arrest in person before a court and
must be released promptly if the arrest is unlawful.” (my emphasis)
It must be noted that the right
to liberty is not an absolute right, therefore where there are
“compelling” circumstances the Courts are at liberty to detain
the accused person.
A closer look at section 32(3a)
and (3b) would show that the Prosecutor General does not issue such a
certificate in every situation but where the situation is one that
satisfies the requirements under section 32(3b). This is what would
constitute “compelling” circumstances as stated under section
50(1)(d) of the Constitution.
Therefore, the reasoning behind
the finding of the unconstitutionality of these provisions, is with
respect irregular and without legal foundation.
In point of fact a reading of
section 117, which provides for the entitlement to bail puts paid to
the assumption by the court a quo that the provisions in the Act
regarding bail are unconstitutional. Section 117 provides in relevant
part:
“117
Entitlement to bail
(1) Subject to this section and
section 32, a person who is in custody in respect of an offence shall
be entitled to be released on bail at any time after he or she has
appeared in court on a charge and before sentence is imposed, unless
the court finds that it is in the interests of justice that he or she
should be detained in custody.
(2) The refusal to grant bail and
the detention of an accused in custody shall be in the interests of
justice where one or more of the following grounds are established—
(a) where there is a likelihood
that the accused, if he or she were released on bail, will —
(i) endanger the safety of the
public or any particular person or will commit an offence referred to
in the First Schedule; or
(ii) not stand his or her trial
or appear to receive sentence; or
(iii) attempt to influence or
intimidate witnesses or to conceal or destroy evidence; or
(iv) undermine or jeopardise the
objectives or proper functioning of the criminal justice system,
including the bail system; or
(b) where in exceptional
circumstances there is the likelihood that the release of the accused
will disturb the public order or undermine public peace or security.
(3) In considering whether the
ground referred to in—
(a) subsection (2)(a)(i) has been
established, the court shall, where applicable, take into account the
following factors, namely —
(i) the degree of violence
towards others implicit in the charge against the accused;
(ii) any threat of violence which
the accused may have made to any person;
(iii) the resentment the accused
is alleged to harbour against any person;
(iv) any disposition of the
accused to commit offences referred to in the First Schedule, as
evident from his or her past conduct;
(v) any evidence that the accused
previously committed an offence referred to in the First Schedule
while released on bail;
(vi) any other factor which in
the opinion of the court should be taken into account;
(b) subsection (2)(a)(ii) has
been established, the court shall take into account —
(i) the ties of the accused to
the place of trial;
(ii) the existence and location
of assets held by the accused;
(iii) the accused's means of
travel and his or her possession of or access to travel documents;
(iv) the nature and gravity of
the offence or the nature and gravity of the likely penalty therefor;
(v) the strength of the case for
the prosecution and the corresponding incentive of the accused to
flee;
(vi) the efficacy of the amount
or nature of the bail and enforceability of any bail conditions;
(vii) any other factor which in
the opinion of the court should be taken into account;
(c) subsection (2)(a)(iii) has
been established, the court shall take into account —
(i) whether the accused is
familiar with any witness or the evidence;
(ii) whether any witness has made
a statement;
(iii) whether the investigation
is completed;
(iv) the accused's relationship
with any witness and the extent to which the witness may be
influenced by the accused;
(v) the efficacy of the amount or
nature of the bail and enforceability of any bail conditions;
(vi) the ease with which any
evidence can be concealed or destroyed;
(vii) any other factor which in
the opinion of the court should be taken into account;
(d) subsection (2)(a)(iv) has
been established, the court shall take into account —
(i) whether the accused supplied
false information at arrest or during bail proceedings;
(ii) whether the accused is in
custody on another charge or is released on licence in terms of the
Prisons Act [Chapter 7:11];
(iii) any previous failure by the
accused to comply with bail conditions;
(iv) any other factor which in
the opinion of the court should be taken into account;
(e) subsection (2)(b) has been
established, the court shall, where applicable, take into account the
following factors, namely —
(i) whether the nature of the
offence and the circumstances under which the offence was committed
is likely to induce a sense of shock or outrage in the community
where the offence was committed;
(ii) whether the shock or outrage
of the community where the offence was committed might lead to public
disorder if the accused is released;
(iii) whether the safety of the
accused might be jeopardised by his or her release;
(iv) whether the sense of peace
and security among members of the public will be undermined or
jeopardised by the release of the accused;
(v) whether the release of the
accused will undermine or jeopardise the public confidence in the
criminal justice system;
(vi) any other factor which in
the opinion of the court should be taken into account.
(4) In considering any question
in subsection (2) the court shall decide the matter by weighing the
interests of justice against the right of the accused to his or her
personal freedom and in particular the prejudice he or she is likely
to suffer if he or she were to be detained in custody, taking into
account, where applicable, the following factors, namely —
(a) the period for which the
accused has already been in custody since his or her arrest;
(b) the probable period of
detention until the disposal or conclusion of the trial if the
accused is not released on bail;
(c) the reason for any delay in
the disposal or conclusion of the trial and any fault on the part of
the accused with regard to such delay;
(d) any impediment in the
preparation of the accused's defence or any delay in obtaining
legal representation which may be brought about by the detention of
the accused;
(e) the state of health of the
accused;
(f) any other factor which in the
opinion of the court should be taken into account.
(5) Notwithstanding the fact that
the prosecution does not oppose the granting of bail, the court has
the duty to weigh up the personal interests of the accused against
the interests of justice as contemplated in subsection (4).
(6) Notwithstanding any provision
of this Act, where an accused is charged with an offence referred to
in—
(a) Part I of the Third Schedule,
the judge or (subject to proviso (iii) to section 116) the magistrate
hearing the matter shall order that the accused be detained in
custody until he or she is dealt with in accordance with the law,
unless the accused, having been given a reasonable opportunity to do
so, adduces evidence which satisfies the judge or magistrate that
exceptional circumstances exist which in the interests of justice
permit his or her release;
(b) Part II of the Third
Schedule, the judge or (subject to proviso (iii) to section 116) the
magistrate hearing the matter shall order that the accused be
detained in custody until he or she is dealt with in accordance with
the law, unless the accused, having been given a reasonable
opportunity to do so, adduces evidence which satisfies the judge or
magistrate that the interests of justice permit his or her release.
(7) Where a person has applied
for bail in respect of an offence referred to in the Third Schedule —
(a) the Prosecutor-General; or
(b) the Minister responsible for
the administration of the Public Order and Security Act [Chapter
11:17], in respect of offence referred to in paragraph 6 of Part I of
the Third Schedule; may issue a certificate stating that it is
intended to charge the person with the offence.
(8) If the Minister responsible
for the administration of the Extradition Act [Chapter 9:08],
certifies in writing that a person who has applied for bail has been
extradited to Zimbabwe from a foreign country and that the Minister
has given an undertaking to the Government or other responsible
authority of that country —
(a) that the accused person will
not be admitted to bail while he or she is in Zimbabwe, the judge or
magistrate hearing the matter shall not admit the accused person to
bail;
(b) that the accused person will
not be admitted to bail while he or she is in Zimbabwe except on
certain conditions which the Minister shall specify in his or her
certificate, the judge or magistrate hearing the matter shall not
admit the accused person to bail except on those conditions: Provided
that the judge or magistrate may fix further conditions, not
inconsistent with the conditions specified by the Minister on the
grant of bail to the accused person.
(9) A document purporting to be a
certificate issued by a Minister or the Prosecutor-General in terms
of subsection (7) or (8) shall be admissible in any proceedings on
its production by any person as prima facie evidence of its contents.
“
As the question of the invalidity
of section 32(3b) is not an issue for determination in this appeal, I
do not intend to dwell on that aspect. I will confine my remarks to
the obvious provision of an accused person's entitlement to bail in
section 117(1) unless there are compelling reasons for his detention
in custody.
It is worth noting that the
section has made provision for almost every factor that a court
should consider in the accused's person favour in order to ensure
that detention in custody may be ordered only where compelling
reasons for such detention have been established by the State. That
this provision accords with section 50(1)(d) of the Constitution is
not in dispute.
The last issue for discussion is
the question of the validity of the certificate issued by the
Prosecutor General and accepted by the Chief Magistrate under section
32(3b).
WHETHER THE CERTIFICATE WAS
CORRECTLY SET ASIDE BY THE COURT A QUO
The appellant filed an appeal
under Rule 6 of the High Court Bail rules. The appeal itself was
defective as commented above. The determination by the Acting Chief
Magistrate on the certificate by the Prosecutor General was not
appealed against. The court a quo was invited and persuaded to set it
aside on the basis of submissions made to it by appellant's counsel
premised on the alleged constitutional invalidity of section 32(3b)
of the Act. I have already found that those remarks by the court a
quo have no legal justification.
In my view, as a result of these
comments the court a quo proceeded to set aside the certificate in
the absence of an appeal against the decision of the magistrates'
court to accept or a challenge properly mounted to have it set aside.
It was never placed before the court a quo by the appellant as an
issue for determination justifying its setting aside. It was merely
discussed as an issue for consideration during the purported bail
hearing. In my view, the court a quo was not properly seized with
this matter and the decision to set aside was a gross irregularity.
There was no legal premise before
the court a quo to interfere with the certificate.
Its acceptance by the Acting
Chief Magistrate was an exercise of his discretion in terms of the
Act which exercise was never challenged. The decision by the court a
quo to set the certificate aside without interfering with the Acting
Chief Magistrate's decision is an irregularity.
In circumstances such as these,
the Supreme Court or a judge of the Supreme Court would be called
upon to invoke review powers in terms of section 25 of the Supreme
Court Act [Chapter 7:13]. In my view, this is a proper case for the
invocation of this provision. It is couched as follows:
“25
Review powers
1. Subject to this section, the
Supreme Court and every judge of the Supreme Court shall have the
same power, jurisdiction and authority as are vested in the High
Court and judges of the High Court, respectively, to review the
proceedings and decisions of inferior courts of justice, tribunals
and administrative authorities.
2. The power, jurisdiction and
authority conferred by subsection (1) may be exercised whenever it
comes to the notice of the Supreme Court or a judge of the Supreme
Court that an irregularity has occurred in any proceedings or in the
making of any decision notwithstanding that such proceedings are, or
such decision is, not the subject of an appeal or application to the
Supreme Court.
3. Nothing in this section shall
be construed as conferring upon any person any right to institute any
review in the first instance before the Supreme Court or a judge of
the Supreme Court, and provision may be made in rules of court, and a
judge of the Supreme Court may give directions, specifying that any
class of review or any particular review shall be instituted before
or shall be referred or remitted to the High Court for
determination.”
It admits of no doubt therefore,
that in terms of section 25(2) of Supreme Court Act a judge of the
court is imbued with powers to set aside proceedings that are
irregular even if those proceedings are not the subject of an appeal
or application before the Court or the judge. I am fortified in this
view by the remarks of ZIYAMBI JA in The Chairman Zimbabwe Electoral
Commission & 2 Ors v Roy Bennet & Anor SC 48/05. The learned
Judge of Appeal said:
“Section 25(2) confers
additional jurisdiction which may be exercised when it comes to the
notice of the Supreme Court or a judge of that court that an
irregularity has occurred in proceedings not before it on appeal or
application. Thus section 25(2) deals with irregularities in respect
of which no appeal or application is before the Supreme Court and the
review is undertaken at the instance of the Supreme Court and not of
any litigant.”
In Zimasco v Marikano SC 6/14,
GARWE JA made remarks that are apposite and pertinent to this
principle at p 8 of the cyclostyled judgment to the following effect:
“In other words, the Supreme
Court has the power of review over matters coming before it for
adjudication by way of appeal or whenever it comes to the notice of
the court that an irregularity has occurred in any proceedings or in
the making of a decision and it is felt that such an irregularity
should not be allowed to stand.”
In P.G Industries v Bvekerwa SC
53/2016 this Court held that due to the irregularity in the
proceedings in the court a quo, the appeal could not be decided on
the merits. In that case the Judge of the Labour Court had failed to
provide reasons for his judgement. This Court went on to say that the
absence of reasons made the task of the court even more difficult as
the reasons for the decision by the court a quo remained locked in
the mind of the judicial officer.
In view of all the defects and
irregularities set out above the only course open to me is to set the
proceedings of the High Court aside. This includes the decision of
the court a quo setting aside the certificate issued by the
Prosecutor General resulting in its revival. The effect of the
setting aside of the decision of the court a quo in this respect is
the reinstatement of the certificate.
Counsel for the appellant was
alive to the defective nature of the proceedings before the High
Court. He indicated that he would withdraw the appeal. In my view
that is a proper attitude to adopt as the appeal would have no merit.
Accordingly, it is ordered as
follows:
1. The appeal is dismissed.
2. In the exercise of my review
powers under section 25(2) of the Supreme Court Act [Chapter 7:13],
the proceedings of the High Court brought by the appellant under Case
No HREP 10641/19 be and are hereby set aside.
3. For the avoidance of doubt,
the decision by the High Court to set aside the certificate issued by
the Prosecutor General and produced to the Acting Chief Magistrate on
26 July 2019 is hereby set aside in accordance with the provisions of
section 25(2) of the Supreme Court Act.
Chinyama and Partners, legal practitioners for the appellant
The Prosecutor General, for the State
