BAIL
APPEAL (In Chambers)
MAVANGIRA
JA:
THIS
APPLICATION
1.
On 6 January 2021 the appellant filed with the Registrar of this
Court papers titled:
“APPEAL
BY THE APPELLANT IN TERMS OF SECTION 121(1)(a) OF THE CRIMINAL
PROCEDURE AND EVIDENCE ACT [CHAPTER 9:07] AS READ WITH RULE 67 OF THE
SUPREME COURT RULES, 2018.”
2.
Attached to the cover page is an application for alteration of bail
conditions that the appellant filed in the High Court as well as the
attachments thereto, the State's responses and the appellant's
heads of argument. Also attached is a Notice of Appeal to the Supreme
Court, appealing against the judgment of the High Court in the
matter. A copy of the judgment, HH825/20, also attached.
3.
On 7 January 2011, in proceedings convened for that purpose,
timelines were agreed for the filing of papers, and heads of argument
by the parties and an order providing for the same was issued by
consent. The order also provided for the hearing of the matter on 22
January 2021, such date being accommodative of the agreed dates for
the filing of the necessary papers. Thereafter, and pursuant to the
issuance of Practice Direction 2 of 2021 on 21 January, 2021, I
directed that the registrar advise counsel for both parties that the
hearing scheduled for 22 January would no longer be held and that I
would accordingly determine the matter on the papers filed as the
parties had already filed all the papers including their respective
heads of argument.
FACTUAL
BACKGROUND
4.
The pertinent and condensed facts for the purposes of this judgment
are that the appellant, facing certain charges, was admitted to bail
on certain conditions including the condition that she surrenders her
diplomatic passport to the clerk of court at Harare Magistrates
Court. Thereafter, in different proceedings and on different charges
that were subsequently laid against her, she was admitted to bail
after successfully appealing to the High Court against refusal of
bail. The subsequent bail order was later altered by the addition of
a provision requiring her to surrender her ordinary passport to the
clerk of court at Harare Magistrates Court. She then applied for the
alteration of the bail condition and sought an order for her ordinary
passport to be released to her and that she be authorised to travel
to the Republic of South Africa for medical attention. The court a
quo dismissed her application.
POINT
IN
LIMINE
5.
The first respondent filed a Notice of Opposition and opposing
affidavit in which it raised a point in
limine.
The
import of the point in
limine
is to the effect that the appeal is fatally defective for
non-compliance with r67(1) and (5) of the Supreme Court Rules, 2018
(the Rules). It is contended that there being no written statement
filed, the appeal is fatally defective because it is the written
statement that lays the basis of the appeal. The submission is made
that for that reason the matter must be struck off the roll. It is
also contended that the appellant has failed to comply with the
peremptory requirement stipulated in subrule (5) that the written
statement and record of proceedings be served on the
Prosecutor-General and the judge whose decision is the subject matter
of the appeal.
6.
The appellant's contention in response is that the point in
limine
raised by the first respondent does not have any legal substance and
ought to be dismissed as there is substantial compliance with the
Rules.
It
is submitted that the Rules do not contain a form that the statement
contemplated in r67(1) must follow. It is further submitted that the
matters stated in paragraphs (a) to (c) of subrule (1) of r67 are all
covered and met or satisfied by the Notice of Appeal that was filed.
The fact that the said requirements “have not been presented in
a manner that the 1st
Respondent prefers”, so
the argument goes, “does not change the substance of the present
matter.”
The
appellant's stance is that she is in substantial compliance of
r67(1) because “all the documents served on the 1st
Respondent meet the requirement of r67(1) as read with r67(5).”
In
other words, the Notice of Appeal suffices as the written statement
that is required or as an adequate replacement of the same, in the
event that it is said not to be itself a “written statement.”
SECTION
121(1) OF THE CRIMINAL PROCEDURE AND EVIDENCE ACT (CHAPTER 9:07)
7.
The reference to paragraph (a) of subsection (1) of section 121 of
the Criminal Procedure and Evidence Act (Chapter 9:07) on the cover
page of the appellant's papers is wrong as the particular paragraph
relates to appeals by the Prosecutor-General or the public prosecutor
against the admission of a person to bail. It is paragraph (b) of the
same section and subsection that allows the appeal against the
refusal to admit a person to bail and by extension, an appeal against
the refusal of an application for the variation of a bail condition.
The
Notice of Appeal attached to the papers cites s121(1)(b), that being
the applicable provision in such appeals. It should in fact, in my
view, be s121(1)(b) as read with subs (2)(a).
8.
The relevant parts of the provision read:
“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)…
(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.
(the underlining and special highlighting is added).
(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.”
9.
I highlight at this juncture that this matter concerns not the
refusal of bail but relates to the refusal by the High Court of a
variation of a condition of bail.
RULE
67 AND ITS APPLICABILITY
10.
By virtue of the specially highlighted portion of the provision in
s121(1) quoted in paragraph 8 above, r67 of the Supreme Court Rules,
2018 is the only provision that is applicable in matters of the
nature of the appellant's quest before this court. It provides in
part:
“(1)
An
appeal against
the refusal of bail in
terms of section 121(1)(b) of the Criminal Procedure and Evidence Act
[Chapter 9:07] may
be noted,
at any time after the refusal of bail by the judge of the High Court,
by
filing
with a registrar a
written statement
indicating –
(a)
the reason why bail should be granted;
(b)
the proposed terms thereof; and
(c)
whether or not bail has previously been refused by a judge or
magistrate and, if it has been refused –
(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.
(2)
In
addition
to the statement in subrule (1), the appellant shall
simultaneously lodge with the registrar a record of the bail
proceedings which are the subject of the appeal:
…
(5)
As soon as possible after filing an appeal in terms of subrule (1),
the appellant's legal practitioner, where the appellant is legally
represented, or the registrar, where the appellant is not legally
represented, shall –
(a)
cause
a copy of the statement and the record
referred to in subrules (1) and (2) to
be served on the Prosecutor-General and the judge
whose decision is the subject of the appeal; and
…
Provided
that a judge may permit an application to be heard without a copy of
the judgment having been so filed, if he or she is satisfied that to
obtain such a copy would unreasonably delay the hearing of the
appeal.
(6)
Where
practicable, a judge
on whom a statement and the record has been served in terms of
subrule (5) shall
file with the registrar his or her written comments
on the appeal at least one day before the hearing of the appeal.
(7)
The Prosecutor-General shall, at least one day before the hearing,
file with the registrar and serve on the appellant a
statement detailing his or her response
to the appeal.
(8)
The registrar shall set down an appeal referred to in subrule (1),
after consultation with a representative of the Prosecutor-General
and any legal practitioner representing the appellant, for hearing by
a judge within four days after the appeal is filed:
Provided
that the four-day period may be extended by agreement between the
Prosecutor-General and the appellant or by order of a judge in terms
of rule 4.” (the underlining is added)
11.
Whilst no issue has been specifically raised about the applicability
of r67, it is important, in my view, for the avoidance of doubt or
confusion, to confirm that it is applicable in this matter.
The
fact that an appeal relating to “any
conditions imposed in connection with bail”
(per
s121(1)
(supra)
is not specifically mentioned in r67 does not, in my view, detract
from the applicability of r67 in this matter which relates to an
intention to appeal against the refusal by the court a quo
to
alter a condition of bail.
12.
Rule 67 prescribes the procedure by which an appeal provided for by
s121(1)(b) of the Criminal Procedure and Evidence Act (which the
appellant's intended appeal is) may be noted.
The
appeal is noted by filing with the registrar a
written statement
indicating the matters stated in paragraphs (a) to (c) of subrule
(1). In addition to the said statement the appellant must,
(the underlining is for emphasis) in accordance with subrule (2),
simultaneously lodge with the registrar a record of the bail
proceedings which are the subject of the appeal. After filing the
appeal the appellant shall,
(the underlining is for emphasis) in fulfilment of the requirements
of r5(a), cause a copy of the statement and the record of the bail
proceedings to be served on the Prosecutor-General and on the judge
whose decision is the subject of the appeal.
13.
A perusal of the Rules in respect of provisions made for the noting
of both criminal and civil appeals from the High Court as well as
miscellaneous appeals reveals the following common and significant
aspects;
Rule
18 in respect of criminal
appeals
provides in relevant part that an accused person wishing to appeal
against any conviction or sentence shall
note his or her appeal by lodging a
notice of appeal.
Rule
37 provides that every civil
appeal
shall
be instituted in the form of a
notice of appeal.
Rule
59 that relates to Miscellaneous Appeals and References provides that
every appeal under this Part shall
be instituted by a
notice of appeal.
14.
I will proceed to quote each of the above cited rules verbatim
in order to expose how in their similarity, they differ conspicuously
from r67 with regard to the manner or procedure by which an appeal is
noted.
R18
pertains to criminal
appeals
and provides:
“(1)
Subject to the provisions of subrule (4), an accused person wishing
to appeal against any conviction or sentence shall note his or her
appeal by lodging a
notice of appeal
with a registrar and a registrar of the High Court. Such notice shall
be in Form 3 and shall be signed by the appellant or his or her legal
representative and shall be accompanied by grounds of appeal in the
form specified in rule 19.”
…
R37(1)
provides:
“(1)
Every
civil appeal
shall be instituted in the form of a
notice of appeal
signed by the appellant or his or her legal practitioner, which shall
state –
…
(a)
– (f)
(2)
The notice of appeal shall be filed and served on a registrar, a
registrar of the High Court and the respondent in accordance with
rule 38.”
R59
which regulates miscellaneous
appeals
and references provides:
“(1)
Every appeal under this Part shall be instituted by a
notice of appeal
signed by the appellant or his or her legal representative.
(2)
The notice of appeal referred to in subrule (1) shall be directed and
delivered by the appellant to the registrar or adminis trative
officer of the tribunal, or to the officer whose decision is appealed
against, and to all other parties affected, and shall also be filed
with a registrar in accordance with rule 60.
(3)
The notice of appeal shall state –
…
(a)
– (f)
15.
What the above overview shows is that the manner of noting an appeal
as provided in r67, this being the filing of a written statement,
differs from the manner provided for the noting of all other
categories of appeals which require the lodging of a notice of
appeal.
APPEALS
GENERALLY
16.
John Reid Rowland in Criminal
Procedure in Zimbabwe
(Legal Resources Foundation, 1997) states as follows:
“'appeal',
in its ordinary sense, denotes an approach to a higher authority to
alter the decision of an inferior; but in legal practice 'appeal'
denotes a particular form of approach, which is distinguishable from
other forms of relief, such as review. Appeals may take different
forms, depending on the requirements of the statute in question.”
In
the appeals that are noted under the Rules by filing a notice of
appeal an appellant is required to set out grounds of appeal.
In
an appeal under r67 the requirement is for the filing of a written
statement indicating the reasons why bail (in this case the variation
sought) should be granted; the proposed terms thereof; whether or not
variation has previously been refused by a judge, and if it has been
refused, the grounds on which it has been, if the grounds are known
to the appellant and the date on which it was refused.
THE
WRITTEN STATEMENT
17.
A Google search on the meaning of the word “statement” yielded
the following results, among others:
“-
a communication or declaration in speech or writing, setting forth
facts, particulars etc.
-
a
definite or clear expression of something in speech or writing.
(per
www.dictionary.com)
-
A
statement is something that you say or write which gives information
in a formal or definitive way.
(per
www.collinsdictionary.com)”
18.
In an appeal governed by r67, the written statement is the document
in which an appellant sets out and establishes his or her or its case
including the justification for the granting of the relief that he or
she or it seeks.
It
is the basis and the substance of the appeal.
That,
in my view, is the document in which the appellant makes out his or
her or its case in much the same way as a litigant does in a founding
affidavit. The appellant's case is not made out in any subsequent
documents or in heads of argument.
The
written statement is the document that is required, by subrule
(5)(a), to be served on the Prosecutor-General and
on the judge whose decision is the subject of the appeal.
It
forms the genesis of the appeal procedure.
Without
that genesis there can be no progression that can properly culminate
in proceedings and a determination according to law.
It
is in the written statement that an appellant lays out his or her
appeal, identifying himself or herself, explaining all that assists
the court by informing it of all the pertinent exigencies of the
appeal. It is also an appellant's opportunity to lay all relevant
information before the court. It is a document that needs to be
compiled with the meticulousness that its purpose and nature demand.
Without it the court is disabled from relating to any intended appeal
that is made in terms of r 67.
19.
Rule 67 is specific and mandatory.
It
is pertinent to look at paragraph (a) which requires the written
statement to indicate “the reasons why bail should be granted.”
By
its nature, a notice of appeal cannot meet this requirement. A notice
of appeal is not a written statement. The regulated contents of a
notice of appeal do not meet the requirements of a written statement
as contemplated by r67.
In
an appeal in terms of r67 the court inquires into whether or not the
relief being sought should be granted.
The
appellant's stance or case must be covered in the written
statement. It is in the written statement that the grounds for
granting the variation are required to be laid or set out or
tabulated.
Grounds
of appeal as articulated in a notice of appeal are by nature
restrictive in their character and construction.
On
the other hand, a written statement, as required by the Rules,
informs the court in full of the appellant's case. It also informs
the respondent(s) fully of the case that must be met. It does not
leave the court and the respondent(s), as is the position in this
case, to wade through the notice of appeal, the record of bail
proceedings and the judgment of the court a
quo
and try to make out for themselves the appellant's case in its true
and full extent.
20.
Paragraph (c) of r67(1) requires an indication in the written
statement of whether or not bail has previously been refused by a
judge and the grounds on which it was refused if these are known to
the appellant.
This
requirement cannot possibly be adequately met in a notice of appeal
by virtue of the nature of document that it is.
The
Rules require that a notice of appeal must, amongst other things,
“set out clearly and specifically … the grounds on which the
appeal is made” (per
rule
19(1)) or to have grounds of appeal that are “set forth clearly and
concisely” (per
rule 44(1)).
An
appeal under this rule stands or falls on the written statement.
21.
In an appeal instituted by way of a notice of appeal, the appellant
will present his or her or its case in full in heads of argument. It
is in the heads of argument that the court and the respondent are
finally informed in full of the appellant's case and the respondent
then files its own heads of argument in response.
Under
r67 it is the written statement and not any other document that so
informs the court and the respondent(s) and must then be responded to
in detail by the Prosecutor-General or commented on by the judge
whose decision is the subject of the appeal.
The
filing of a notice of appeal as has been done in
casu
does not, in my view, serve the interests of justice bearing in mind
that the interests of both parties must be considered. Such
consideration can only be possible where the appeal is noted by way
of a written statement to which the respondent will file a statement
detailing his or her response.
In
any event, an appeal under r67 would, if determined on the basis of a
notice of appeal as urged by the appellant, not be determined in
accordance with the law.
NO
SERVICE ON THE PROSECUTOR-GENERAL AND ON THE JUDGE
22.
The certificate of service filed by the appellant shows that the
papers by which she purported to note her appeal were served on the
first and the second respondents but not on the judge whose decision
is the subject of the purported appeal.
No
explanation has been proffered why the judge was not served.
The
provision is mandatory.
No
justification has been laid as to how and why this court can and/or
must overlook this requirement.
In
this regard note must be taken that in terms of subrule (6), after
the serving of the statement and the record of bail proceedings on
the judge whose decision is the subject of the appeal, he or she
shall, where practicable, file with the registrar his or her written
comments on the appeal at least one day before the hearing of the
appeal.
It
goes without saying that the judge's comments are meant, where
provided, to be of assistance to the determination of the appeal.
This
is more so in view of the fact that matters of the liberty of the
individual, especially so before conviction, are sacrosanct matters
that require expeditious resolution by judicial decisions that are
well informed and based on the law.
The
crafting of the Rules in the manner discussed was meant to achieve
that objective.
Such
decisions can only be achieved when all the parties are fully and
properly heard by the court.
Critically,
the initiator of the process has the obligation to ensure that all
who must be heard by the court are brought before the court.
In
casu,
the failure to serve the judge negated that obligation.
23.
It cannot escape observation and mention that all this is
overshadowed by the fact that even those parties, to wit, the first
and the second respondents, that were purportedly served with papers
were not served with a written statement.
The
service that was effected on them can thus be described as futile and
serving no purpose.
The
fact is therefore inescapable that neither the judge nor the
Prosecutor-General were served with the requisite written statement.
The
failure to file a written statement, which is a pre-requisite for any
appeal under this rule and the filing in
lieu
thereof of a notice of appeal, disables any ventilation of any
intended appeal that an appellant desires to be placed before the
court.
24.
The judge in the court a
quo
exercised a discretion in determining the application that was before
him for the variation of a bail condition. The Rules are designed to
afford him (or her) an opportunity to make comments in the event of
an appeal being noted against his (or her) decision.
The
judge's comments may well be supportive of the appeal or may not be
so. The judge's comments are meant to be one of the cogs on the
wheel of justice in so far as appeals in terms of r67 are concerned.
The
net effect of compliance with the discussed provisions is that the
court will be enabled to dispense and serve justice. As matters
stand, there is non-compliance in fundamental respects that must of
necessity impact negatively on the matter before me.
25.
The requirement for the Prosecutor-General to, at least one day
before the hearing, file with the registrar and serve on the
appellant, a
statement detailing his or her response
to the appeal, reinforces the critical point that the written
statement is the pivotal document that enables an appellant to lay
before the court, in detail, her appeal and the merits thereof.
That
is also why the Prosecutor-General is, after being served with the
written statement and the record, required to file a statement
detailing
his or her response. The fact however, as already noted earlier in
this judgment, is that the Prosecutor-General was not served with a
written statement.
26.
The requirement for a written statement is thus not an idle
requirement in the rules. It is purposeful.
The
written statement is certainly not a document that can be in the form
of a notice of appeal and the difference is not merely cosmetic. The
requirements of what must be indicated in a written statement cannot
possibly be achieved within the confines of a notice of appeal.
It
is therefore unwarranted for the appellant to attribute the raising
of the point in
limine
to the fact that the requirements of r67(1) have
not been presented in a manner that the first respondent prefers.
The
issue is not about preferences. It is about compliance with a
purposefully crafted rule that must be obeyed in order for justice to
be dispensed.
Serious
reflection by the appellant's counsel after the raising of the
preliminary point should, in my view, have led to the careful reading
of the rule and appreciation of it, if proper attention had not been
paid to the rule before then. This ought to have resulted in the
realisation that r67 had not been complied with at all and that there
was need for timely and appropriate action that avoids persisting
with a fatally defective appeal that unnecessarily deters the court
and at the same time has the effect of delaying the determination of
the appellant's craved or intended appeal on the merits.
If
the content of r67 was paid attention to before the filing of the
papers in casu, the court is left without explanation on why a
written statement was not filed with the registrar for the purpose of
noting the intended appeal.
27.
The appellant appears to expect the court and the respondents to
create for themselves and on her behalf, after reading all the papers
that she filed attached to the cover page, the written statement by
which the appeal ought to have been noted.
Needless
to say, it is not for the court to make out a case for a litigant.
That,
if it were even possible at all, would lead to serious miscarriage of
justice, for the respondent would not know the case that the court
has conjured up on behalf of the appellant and would neither know
what to respond to as the statement made up by the court would remain
locked in the court's mind.
The
court could not perceivably produce a written statement of an appeal
that it would thereafter proceed to make a determination on.
It
would neither be perceivable that the Prosecutor-General would have
to “assemble” for himself (or herself) from the papers filed, the
written statement that ought to have been filed by the appellant and
then proceed to purport to respond to it in a statement detailing his
or her response.
Justice
does not work that way at all.
There
cannot thus be said to be any compliance with the pertinent rule in
such circumstances, let alone substantial compliance.
CONCLUSION
28.
In the absence of a written statement as stipulated, an appeal in
terms of r67 has not been noted. There is thus no appeal before this
court.
In
addition, the failure by the appellant to serve the judge with that
which she insists to be good enough to qualify as a statement would,
even
if the notice of appeal were to be found to be or to qualify as a
written statement,
amount to inexcusable non-compliance.
As
matters stand, the judge was completely “left out of the equation”,
for want of a better expression.
In
any event, the notice of appeal is not, as pointed out earlier, a
replacement of the stipulated written statement.
On
the papers before me therefore, it follows that the appellant did not
have any written statement to file with the registrar or to serve on
the judge or on any party at all. The two pronged point in
limine
must therefore be upheld.
(i)
Firstly, no written statement was filed.
(ii)
Secondly, neither the Prosecutor-General nor the judge whose decision
is the subject of the intended appeal was served with a written
statement.
In
view of these observations, the inevitable fate of this matter is
therefore that there being no appeal before me, the matter must be
struck off the roll.
29.
It is important that I highlight that I am alive to the provisions of
r4 of the Rules in terms of which a judge or the court may direct a
departure from the rules where this is required in the interests of
justice.
It
is my considered view that this is not one such case for the reasons
appearing herein.
30.
It is accordingly ordered as follows:
The
appeal be and is hereby struck off the roll.
Mtetwa
& Nyambirai,
appellant's legal practitioners
National
Prosecuting Authority,
first respondent's legal practitioners
