Bail
CHATUKUTA
J:
This
is an application referred to by the applicant as “Court
Application for the Second Revival of Temporary Variation of Bail
Conditions in B1836/19: HH735/19” being made in terms of s126(1) of
the Criminal Procedure and Evidence Act [Chapter 9:07] (the Act).
The
application was initially not opposed.
On
3 May 2021, I directed that the parties file supplementary heads of
argument on whether or not this court has jurisdiction to determine
the application.
It
is necessary to remark at the onset that this is a novel application.
Mr
Madhuku referred to it in his oral submissions as an application sui
generis. It is a novel application because neither s126(1), nor any
other provision of the Act for that matter, provides for the ranking
of applications where more than one application is filed. Therefore
there cannot be a first, second or third application for variation of
bail conditions. This is simply an application for the alteration of
bail conditions. There is no legal basis, either, for the application
to be referred to as sui generis. The fact that an order is sought
for “the second revival of temporary variation of bail conditions”
does not bestow on it a special status.
The
application is improperly before me as I do not have the jurisdiction
to vary bail orders of the magistrates court except on appeal.
The
background to the application is that on 27 November 2017, the
applicant was denied bail by the magistrate court. He appealed
against the dismissal and was granted bail by this court on 11 April
2018 in case number HH196/18.
On
16 September 2018, he applied before the magistrate court under case
number CRB NO ACC54/19 for a variation of the bail conditions. He,
inter alia, applied for the temporary release of his passport to
enable him to travel to South Africa for medical attention. The
application was dismissed.
The
applicant appealed to this court against the dismissal under case
number B1836/17. His appeal was upheld by CHITAPI J. He was granted
an order for the variation of the bail condition. The order allowed
for the temporary release of the passport on condition that the
applicant surrendered the title deed of an immovable property
registered in the name of Nimrod Willard Chiminya. The passport was
to be returned on or before 3 December 2019.
Upon
return of the passport, the title deeds were to be released back to
the applicant. Full reasons for the court's decision were rendered
in the judgment in case number HH753-2019.
On
11 February 2020, the applicant applied before this court for
“revival of a temporary variation of the applicant's bail
conditions” seeking the release of his passport. The order was
granted by FOROMA J on 26 February 2020 on condition the applicant
surrendered the same title deeds as in HH753-2019. The passport was
to be returned on 16 March 2020. And, as in HH753-2019, the title
deeds were to be returned to the applicant following the surrender of
passport to the Clerk of Court. There are no reasons for judgment.
The
applicant is back seeking the release of his passport yet again to
enable him to go to South Africa for medical attention. He is seeking
a variation of the order granted on appeal under case number HH753-19
(B 1836/17). In lieu of the passport, the applicant offers to
surrender a title deed for yet another immovable property registered
in the name of Pomlic Investments (Pvt) Ltd.
Mr
Madhuku submitted that this court accepted jurisdiction when an order
for “revival of a temporary variation of the applicant's bail
conditions” was granted by FOROMA J. He submitted that it is
contrary to the rule of law for the same court to seek now to
question the basis of its jurisdiction involving the same parties and
the same matter.
The
submissions by Mr Madhuku are unmeritorious.
Jurisdiction
is founded on the provisions of the Act and not on the basis that
another judge assumed jurisdiction.
Mr
Madhuku also submitted that this court has jurisdiction to revive the
temporary variation as sought by the applicant in terms of s126(1) of
the Act as read with s46(2), 50(1)3(d), 70(1)(a), 76 and 176 of the
Constitution of Zimbabwe.
He
submitted that when a court sits on appeal it can grant an order on
the basis of s121(5) or its inherent jurisdiction. The context of the
application before CHITAPI J, the order he granted and the reasoning
thereof implied that the court was not proceeding in terms of s121(5)
but was exercising its inherent powers. The order under HH753-19 is
therefore a High Court order. It can be varied or altered in terms of
s126(1).
The
respondent abandoned its concession to the application.
Mr
Nyahunzvi's submissions were on the question whether or not s126(1)
provides for the temporary suspension of a bail order.
The
submissions are not relevant to the resolution of the question of
jurisdiction.
The
answer to the question for determination is found in s121 subsections
(5) and (7) of the Act and in the reasons for judgment and the order
issued by CHITAPI J. The subsections provide as follows:
“(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.
(6)…………………………….
(7)
Any order made by a judge in terms of subsection (5) shall be deemed
to be the order made in terms of the appropriate section of this Part
by the judge or magistrate whose decision was the subject of the
appeal.”
A
judge dealing with an appeal in terms of s121 is therefore empowered
in subsection (5) to make an order he considers appropriate which
should have been made by a magistrate.
The
status of that order is provided for in subsection (7). Whatever
order the judge makes is deemed to be the order of the magistrate
whose decision was the subject of an appeal.
Both
subsections are clear and unambiguous. They both relate to an appeal
filed in terms of s121.
A
reading of the judgment by CHITAPI J is specific that the judge was
considering an appeal made by the applicant in terms of s121(1).
There is nowhere in the judgment that the judge indicated or can be
assumed that he was exercising inherent jurisdiction. The order shows
that the judge was mindful of subsection (7). Paragraph (a) of the
order reads:
“(a)
The order of the magistrate made on 18 September, 2019 dismissing the
appellant's application for a temporary release of his passport
held as a bail condition in case No. CRB 11633/17 as read with case
No CRBs 12182/17, 12251-53/17, 2254/18 and 9388/19 is set aside and
substituted with the following order.”
The
judge set aside the order of the magistrate and substituted it with
the new order. The order is couched in clear and unambiguous
peremptory terms. The order became the order of the magistrates
court.
The
judge ordered the surrender of the title deed to the immovable
property to the Clerk of Court and not to the Registrar of the High
Court.
The
applicant was aware that the order was an order of the magistrate
court. He duly complied with the order by surrendering the title deed
to the Clerk of Court. He retrieved his passport from the Clerk of
Court. Upon his return he surrendered the passport back to the Clerk
of Court and retrieved the title deeds.
It
is therefore inexplicable why the applicant has been approaching this
court for a variation of an order of a magistrate. He can only
approach this court on appeal in the event that he is dissatisfied
with the decision of the lower court as he did in case number
HH753-19.
The
applicant referred to various provisions of the Constitution on the
rights of an accused person.
The
constitutional provisions are of no relevance to the determination of
the question of jurisdiction.
It
seems they were referred to so as to give “flavour” to the
otherwise unmerited submissions so that the submissions would be high
sounding. I therefore find it not necessary to be detained by making
any reference to the provisions, suffice to remark that this court is
not denying the applicant his right to protection of the
Constitution. It is simply pronouncing that the application for the
realization of those rights has been made at the wrong forum.
It
is this court's finding that this court does not have jurisdiction
to entertain the application. The application is improperly before
the court. It was ill-conceived and amounts to an abuse of court
process.
Applicants
in general and the present applicant in particular, are strongly
discouraged from forum shopping and in the process abusing court
process.
The
application is accordingly struck off the roll.
Lovemore
Madhuku Lawyers, appellant's legal practitioners
National
Prosecuting Authority, respondent's legal practitioners
