BAIL
APPEAL (CHAMBER APPLICATION)
MAKONI
JA: This
is an appeal against refusal of bail by the High Court handed down on
21 January 2021. The appeal is made in terms of rule 67(1) of the
Supreme Rules, 2018 (the rules) as read with s121(1)(b) of the
Criminal Procedure and
Evidence
Act [Chapter
9:07]
(the CPEA).
WHETHER
OR NOT THE APPELLANT HAS A RIGHT OF APPEAL TO THIS COURT
The
appellant anticipated, and correctly so, that an issue might arise
whether the appeal is properly before this Court.
In
his Written Statement, filed in terms of r67(1), under the heading
“Reasons Why Bail Should Be Granted” he stated his reasons in two
parts.
(i)
The first part is headed, “Why
this appeal is an appeal in terms of s121(1)(b) of the Criminal
Procedure and Evidence Act [Chapter
9:07].”
In
the Written Statement he avers that this is an unusual novel appeal
that is contemplated by s121(1)(b) of the CPEA.
The
learned judge a
quo,
in determining an appeal against the refusal of bail by a magistrate,
found that the magistrate had misdirected herself by accepting the
appellant's grounds of appeal. Instead of allowing the appeal he
proceeded to determine the bail application himself on the basis of
the record that was before the magistrate. He refused to admit the
appellant to bail.
The
appellant further avers that it is the judge a
quo
who refused to grant him bail within the contemplation of s121(1)(b)
of the CPEA.
He
further avers that the disposition of the judge dismissing the
appeal, against the refusal of bail, is an error. The correct
disposition should have read “In the result bail is dismissed.”
His only immediate course of action is to appeal in terms of
s121(1)(b) of the CPEA.
The
appellant becomes more specific in his heads of argument when he
addresses the issue under the heading, “IS
THIS MATTER PROPERLY BEFORE THE COURT? IS THERE AN APPEAL?”
As
predicted, the respondent raised a point, in
limine,
that the appellant does not have a right of audience before this
Court due to s121(8) of the CPEA.
The
relevant portions of s121 of the CPEA read:
“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 of 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)
…
(4)
…
(5)
…
(6)
…
(7)
…
(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
other words the appellant, having appealed to the High Court, had no
right to appeal again to the Supreme Court.
It
is pertinent at this stage to give the factual conspectus leading to
the filing of the present appeal.
The
appellant, who is the Human Capital Director and Acting Town Clerk of
the City of Harare, was arraigned before the Magistrates Court facing
a charge of criminal abuse of duty as a public officer as defined in
s174(1)(a) of the Criminal Law (Codification and Reform) Act [Chapter
9:23]
('the Code').
In
the alternative he was charged with theft of trust property in terms
of s113(2)(b) of the Code.
The
basis of the charges was that on 30 October 2014, the appellant in
his capacity as the Human Capital Director of the City of Harare and
in collusion with other City of Harare employees unlawfully
appropriated US$130,000 from the Traditional Beer Levy Account which
is maintained by the Council. The said amount was transferred into
the appellant's personal bank account, without ministerial
authority and to the prejudice of the City of Harare residents. The
appellant was also said to have purchased a motor vehicle (Land
Cruiser Prado) worth USD119,000 which he registered in his name. He
thereafter retained the balance.
The
appellant sought admission to bail pending his trial in the
Magistrates Court. The magistrate refused him bail for the reasons
that he was likely to abscond and to interfere with investigations
and witnesses.
Aggrieved
by that decision, the appellant noted an appeal to the High Court
(court a
quo)
in terms of s121(1) of the CPEA, against the refusal of bail.
He
contended that the magistrate improperly exercised her discretion in
finding that the appellant was likely to abscond and interfere with
witnesses when this was not supported by evidence. He further
contended she did not properly analyse his submissions.
The
court a quo
held
that the magistrate court's findings were flawed and found that she
had misdirected herself in a number of respects. Having made this
finding, the judge a
quo
stated that “…I am at large to exercise my discretion…”. He
proceeded to determine the matter and ultimately dismissed the
appeal.
Aggrieved
by the dismissal of his appeal by the court
a quo,
the appellant noted the present appeal.
Mr
Madhuku,
for the appellant, in addressing the question whether the appeal was
properly before the court, made the following submissions.
The
above question arises because of s121(8) of the CPEA. Before its
amendment the section merely reads:
“There
shall be no appeal from a decision or order of a judge in terms of
this section.”
The
decisions in S
v Dwawo
1998 (1) ZLR 536 (S) and Chiyangwa
v Attorney General & Ors
2004 (1) ZLR 57 (S) which refer to a “single appeal” or “one
chance to appeal” were made in terms s121(8) before its amendment.
These
decisions do not apply in
casu
as the section, as it currently stands, is fundamentally different
from its predecessor making the above authorities distinguishable and
inapplicable.
The
crux of the matter is that only a decision or order made in terms of
121(2)(b) of the CPEA is not appealable to a Judge of the Supreme
Court.
In
casu,
it is contended that although the judge of the court a
quo was
approached in terms of s121(2)(b) he made his decision in terms
s121(1) of the CPEA making his decision appealable.
He
concluded by submitting that the matter raises a novel issue which
calls for careful consideration.
The
novel issue arises in the following manner;
“A
judge of the High Court is approached on appeal in terms of
s121(2)(b) of the Criminal Procedure & Evidence Act [Chapter
9:07].
(ii)
The judge is asked to set aside a magistrate's decision denying
bail, with the appellant arguing that the learned magistrate
misdirected herself.
(iii)
The judge accepts the appellant's grounds of appeal by agreeing
that indeed the learned magistrate misdirected herself in denying
bail in the manner she did.
(iv)
Despite agreeing with the appellant's grounds of appeal in respect
of the misdirections of the learned magistrate, the judge still does
not allow the appeal. Instead, the judge switches
to being a court of first instance and
determines the bail application himself. He refuses bail on the basis
of his
own reasons.
(v)
The judge refuses bail, not on the basis of dismissing the grounds of
appeal, but after accepting the grounds of appeal, but after
accepting the grounds of appeal: in other words, the judge
rejects the learned magistrate's findings and substitutes his own
findings.”
The
ordinary and grammatical construction of s121 of the CPEA reveals the
following points:
(a)
Section 121(1)(b) of the CPEA gives an accused person the right to
appeal against a magistrate or judge's decision refusing to admit
him to bail. The exercise of this right of appeal is subject to
subsection 2 which provides the relevant fora to exercise that right.
If bail has been refused in the magistrates' court, one's
recourse is in the High Court in terms of s121(2) of the CPEA.
(b)
Section 121(8) of the CPEA is the limitation to that right.
It
stipulates that where the High Court has determined an appeal from
the magistrates court, no appeal shall lie to this Court.
Only
accused persons whose charges fall under para 10 of the Third
Schedule or the Ninth Schedule in respect of which the
Prosecutor-General has issued a certificate under s32(3b) can
approach the Supreme Court against the High Court's ruling on
appeal.
The
appellant sought to argue that the court a
quo,
after accepting the appellant's grounds of appeal, by finding that
the learned magistrate had misdirected herself, switched to being a
court of first instance and refused the appellant bail on the basis
of its own reasons.
Thus
its decision was made in terms of s121(2)(a) of the CPEA and is
therefore appealable. This proposition is however, not borne out by
the record of proceedings of the court a
quo.
A thorough examination of the judgement of the judge a
quo
reflects that the judge was clear in his mind what he was seized
with, which is an appeal.
At
the outset he sets out the provisions in terms which the matter was
before him. These are s121(1) of the CPEA and r6(1) of the High Court
of Zimbabwe Rules 1991.
Both
provisions deal with appeals against the refusal of bail by an
accused.
He
then proceeds to lay out the powers of an appellate court as laid
down in Barros
and Another v Chimponda 1999
(1) ZLR 58 (S) and concludes this part by stating “it is with these
principles in mind that I proceed to determine the
appeal”.
After
analysing the decision of the learned magistrate and having found
that she misdirected herself he states, “The error means I am at
large to exercise my discretion on the issue of abscondment using
the same materials as were before the court a
quo”.
Further
down when dealing with the strength of the state case he remarked “it
seems to me that one cannot say, for
purposes of this appeal...”
In
dealing with the issue of surrendering title deeds as part of the
bail conditions he stated “I raised this aspect with Mr Madhuku
at
the hearing of the appeal.
He said if the
appellate court were
minded to
allow the appeal
and were to order the surrendering of the title deed then the
applicant could do so. I
heard this matter on appeal. The title deed is not part of the
record.”
Expressing
his views regarding the issue of abscondment the judge a
quo
stated “In
short, I can only exercise my discretion based on the materials
before me. That is my understanding of the dicta that I have quoted
from the decision in Barros
and Another v Chimponda supra.”
Under
the heading “THE OTHER GROUNDS OF APPEAL” the judge a
quo
stated
“I have addressed the issue in the other grounds of appeal in the
course of disposing of the grounds of appeal on abscondment and
interference. The need for a separate treatment of the other grounds
of appeal therefore falls away.”
He
then disposes of the matter in the following manner:
“In
the result, the appeal against the refusal of bail be and is
dismissed.” (sic)
I
have taken a deliberate decision to make reference, in
extensor,
to the above instances so that there is no doubt in anyone's mind
as to what the judge a
quo
was seized with.
He
was clearly dealing with an appeal and disposed of it as such.
Nowhere
in the judgement does he create an impression that he was dealing
with the matter as a court of first instance. Whether
or not the court a
quo
improperly exercised its discretion in dismissing the appeal, having
found that the magistrate misdirected herself, does not confer upon
the appellant an additional fora of appeal to this Court which right
is not recognised in the CPEA.
In
casu,
the appellant has no right of appeal for the following reasons:
(i)
He approached the court a
quo in
terms of s121(1)(b) of the CPEA. That appeal was against the
magistrates court's refusal of bail.
(ii)
By approaching the court, a
quo,
he exercised his right in terms of s121(2)(b) therefore s121(8) of
the CPEA automatically applies.
(iii)
There is no right of appeal to the Supreme Court except under the
specified exceptions. The appellant has not shown that the crime he
was charged with falls under any of these exceptions.
To
that end, he has improperly approached this Court as he exhausted his
right of appeal upon the filing of the appeal in the court a
quo.
Mr
Madhuku
also sought to persuade the court not to have regard to the decisions
in S
v Dzawo and Chiyangwa v Attorney General supra
which refer to a “single appeal” or “one chance to appeal”.
His
basis for so arguing was that the decisions were made before the
amendment to s121(8) of the CPEA was made.
The
section as amended so the argument goes, is fundamentally different
from its predecessor making the Dzawo
and Chiyangwa
cases distinguishable and inapplicable so he contended.
I
am not persuaded by the submissions:
(i)
Firstly, Mr Madhuku
deliberately avoided to present argument distinguishing the two cases
from the present facts before me.
(ii)
Secondly and critically, the amendment did not change the crux of the
provision which is to prohibit endless appeals. All it did, after the
legislature realised there was need to cater for such matters, was to
provide exceptions to the general principle. The amendment did not
change the position of the law as enunciated in the two cases.
Both
cases state categorically that s121(8) of the CPEA ousts the right of
an accused person who has appealed to a judge of the High Court
against the bail decision of a magistrate to take the judge's
decision on appeal to the Supreme Court.
In
S
v Dzawo supra
when refusing the appellant leave to appeal, the court construed
s121(8) as follows:
“In
construing s121(8) in context, guidance may be derived as to the
intention of the legislature from the background to the passing of
the Criminal Procedure and Evidence Amendment Act 1997.
The
position which obtained before 1 October 1997, when this Act came
into operation and repealed and replaced s121, was this:
Under
s44(5) of the High Court Act, an appeal lay to the Supreme Court with
leave of either a judge of the High Court or, if he refused the
grant, a judge of the Supreme Court, against an interlocutory order
or judgment in relation to criminal proceedings before the High
Court. See S
v Aitken
1992 (2) ZLR 84 (S) at 87A-E.
In
enacting the new section 121, the lawmaker must be taken to have been
aware of the decision in Aitken's case.
The
clear inference is that an alteration to the existing procedure was
aimed at.
Subsection
(1) of s121 of the Act provides that where a judge or magistrate has
admitted, or refused to admit, a person to bail, the
Attorney-General, or the person concerned, may appeal.
That
right is made subject to:
(i)
s44(5) of the High Court Act, which specifies that leave must be
obtained where the decision is that of a judge of the High Court; and
(ii)
any restrictions contained in the other subsections.
Subsection
(2) provides that an appeal in terms of subs (1) against a decision
of a judge of the High Court shall be made to a judge of the Supreme
Court and against the decision of a magistrate to a judge of the High
Court.
Thus,
where the initial application for bail was to a judge of the High
Court, an appeal with leave lies to a judge of the Supreme Court; but
where the initial application was before a magistrate, there is an
absolute right of appeal to a judge of the High Court.
Subsection
(5) reads:
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.
The
term judge refers to both a judge of the High Court and a judge of
the Supreme Court. Subsection (8), which provides that:
There
shall be no appeal from a decision or order of a judge in terms of
this section, can only mean, in the context of the subsections
referred to, that the aggrieved person is entitled to a single
appeal.
If
the initial application was made to a magistrate, the appeal must be
to a judge of the High Court; but if made to a judge, then an appeal
lies, with the grant of leave, to a judge of the Supreme Court.
In
sum, the change brought about by the amendment to s121 has removed
the right of the person concerned who had appealed to a judge of the
High Court against the decision of a magistrate in relation to bail,
to take the judge's decision, subject to leave, on appeal to a
judge of the Supreme Court.”
(Emphasis added)
In
Chiyangwa
v The State supra
the
applicant applied to the magistrate's court for bail pending his
trial. The application was refused and the applicant was remanded in
custody. He then appealed against the refusal to grant him bail to
the High Court which allowed his appeal.
Acting
in terms of s121(3) of the CPEA, the Attorney-General, advised the
learned judge that he intended to appeal against his decision.
Irked
by that development, the appellant approached the Supreme Court on
the basis that the Attorney-General had no right of appeal against
the High Court order.
In
dealing with the issue before it of whether the Attorney-General had,
in terms of s121 of the CPEA, the right of appeal against the order
of the High Court, the court held:
“I
have no doubt in my mind that subs (8) of s121 deprives any party –
both the accused person and the Attorney-General – of any right of
appeal against any order made by a judge in terms of subs (5) of s121
of the Act.
Thus,
when a judge of the High Court hears a bail application in the first
instance he is exercising his power in terms of s121(1) and whatever
decision he makes is appealable.
However,
when he hears a bail application as an appeal judge he does so in
terms of s121(5) of the Act and any order he makes when sitting as
such is not appealable because of the provisions of subs (8) of
s121.”
See
also Attorney
General v Fundira
SC33/04.
What
is fortified in the above cases is thst the Supreme Court has no
jurisdiction to again hear an appeal which has been determined by the
High Court. In other words the accused person is only entitled to a
“single appeal” or a “one chance appeal”.
In
Nyamande
& Anor v Zuva
Petroleum,
CCZ8/15 the Court stated that where there is no right of appeal, the
appeal filed is a nullity. The present appeal suffers the same fate,
it ought to be struck off the roll.
The
appellant makes an alternative argument that if the appeal were to be
held not properly before the court, this is a proper case to invoke
s25(2) of the Supreme Court Act [Chapter
7:13]
and set aside the decision of the court a
quo.
His
basis for so seeking is that the judge a
quo
offended against a fundamental principle of the law being that an
appeal court that finds merit in the grounds of appeal by agreeing
that the court below it misdirected itself, has to allow the appeal.
It
is my considered view that dealing with this issue will be delving
into the appeal itself, through the back door, as that is the
appellant's first ground of appeal.
This
I cannot do as the appellant has exhausted his right to appeal.
Further
there is no irregularity as the judge a
quo
gave his reasons for proceeding in the manner that he did.
Whether
he was right or wrong is a debate which can only be dealt with in an
appropriate case. This position was made clear in Dzawo
supra
where the court, having found some misdirection by the High Court,
sitting as an appeal court, remarked:
“Be
this as it may, the unfortunate reality is that, although satisfied
that the applicant has been unfairly treated, this Court is powerless
to grant him the relief he deserves.”
The
court was “powerless” owing to s121(8) which ousted its
jurisdiction in the matter since the High Court had sat as an appeal
court in the matter.
Therefore,
despite its decision being wrong, the Supreme Court could not set
aside the High Court's decision since the High Court sat as the
final court of appeal per s121(8) CPEA.
The
applicant had no further recourse in the Supreme Court.
In
Lytton
Investments (Pvt) Ltd v Standard Chartered Bank Zimbabwe Ltd &
Anor CCZ11/18,
in dealing with the principle of finality of Supreme Court decisions
on non-constitutional matters the Constitutional Court held, at p23
of the judgment, that:
“What
is clear is that the purpose of the principle of finality of
decisions of the Supreme Court on all non-constitutional matters is
to bring to an end the litigation on the non constitutional matters.
A
decision of the Supreme Court on a non-constitutional matter is part
of the litigation process. The decision is therefore correct because
it is final. It is not final because it is correct. The correctness
of the decision at law is determined by the legal status of finality.
The question of the wrongness of the decision would not arise. There
cannot be a wrong decision of the Supreme Court on a
non-constitutional matter.”
The
same can be said of a decision made by a judge of the a high court in
terms
Both
parties did not pray for costs. I will therefore not make an order
for costs.
Accordingly,
it is ordered as follows;
The
matter is struck off the roll with no order as to costs.
Lovemore
Madhuku Lawyers Legal Practitioners,
appellant's legal practitioners
National
Prosecuting Authority,
respondent's legal practitioners
