Application
for Bail Pending Appeal
BHUNU
JA:
The
applicant approaches this Court in terms of s123(1)(a)(i) of the
Criminal Procedure and Evidence Act [Chapter
9:07]
with an application for bail pending appeal.
He
initially approached the High Court with the same application. The
court a quo
declined jurisdiction and deferred the application for determination
by this Court.
Factual
background
The
applicant is the owner and pastor of a Christian church. He is a
convict serving a 20-year term of imprisonment. He was convicted in
the Regional Magistrates Court on 4 counts of rape as defined in s65
of the Criminal Procedure and Evidence Act and 1 count of
contravening s26 of the Censorship and Entertainments Control Act
[Chapter
10:04].
The
Regional Magistrates' Court sentenced him to 50 years'
imprisonment of which 10 years were suspended for a period of 5 years
on the usual conditions of good behaviour.
He
appealed to a panel of two judges of the court a
quo
against both conviction and sentence with some measure of success.
The appeal against conviction was found to be without merit and
dismissed. He was however partially successful in respect of the
sentence which was reduced to an effective 20-year imprisonment.
Aggrieved
by the dismissal of his appeal against conviction he noted an appeal
to this Court with leave of the court a
quo.
Pending
the determination of his appeal to this Court, the appellant applied
to a single judge of the court a
quo
for bail pending appeal. The learned judge a
quo
declined jurisdiction arguing that sitting as a single judge he was
ill-suited to review a judgment of two judges of the same court. In
his reasons for judgment at p4 of the judgment he reasoned that:
“In
my interpretation, the default position is that where an applicant
has noted an appeal to the Supreme Court against conviction and
sentence on trial by the High court or has been sentenced by the High
court bail pending appeal should be made to a judge of the Supreme
Court. Although the provision speaks to a judge of the Supreme Court
or the High Court, the default position is that the Supreme Court
judge is the first point of call failing which a High Court judge may
determine the application. Even if I am wrong in my interpretation, a
situation may arise as in the instant case where I am asked to
determine prospects of success on appeal where the High Court on
appeal exhausted its jurisdiction. In my respectful view, it is only
jurisprudentially proper that a Supreme court judge should be the one
to determine the bail pending appeal where the appeal relates to a
judgment of the High Court granted on appeal. I must come to the
conclusion that the interests of justice and procedural and
substantive fairness dictates that I defer to a judge of the Supreme
Court to hear the bail application in terms of s123(1)(a)(i) of the
Criminal Procedure and Evidence Act.”
On
the basis of such reasoning the learned judge a
quo
issued the following order:
“Consequently,
the application for bail pending appeal is struck off the roll. The
applicant if advised may direct the application for determination by
a judge of the Supreme Court.”
Analysis
of the facts and the law
With
all due respect, the learned judge misconstrued what was required of
him in respect of the application before him. He was not being asked
to review the judgment of the two-judge panel a
quo.
He
was simply being asked to determine the applicant's suitability for
bail pending appeal without determining the merits of the appeal.
The
requirements of an application of this nature are well known. All
that he was required to do was to assess the applicant's prospects
of success and the likelihood of prejudicing the ends of justice
bearing in mind that the applicant is a convict who has lost the
presumption of innocence. In the case of Kilpin
v S
this Court held that the principles governing the granting of bail
after conviction are different from those governing the granting of
bail before conviction. After conviction the presumption of innocence
falls away.
In
Williams
v S
the court however went on to hold that:
“Even
after conviction the courts should lean in favour of liberty if this
would not endanger the interests of justice. The prospects of success
on appeal must be balanced against the interests of the
administration of justice.”
In
determining whether or not the learned judge a
quo
had the necessary jurisdiction to hear and determine the application
for bail pending appeal against an appeal judgment of the court a
quo,
it is necessary to traverse and interrogate the jurisdiction of the
High Court.
An
application for bail is essentially a civil matter founded on a
criminal case.
Section
13 of the High Court Act [Chapter
7:06]
confers on the court a
quo
unlimited original jurisdiction over all persons and civil matters in
Zimbabwe. Beyond that, it is trite that the High Court has unlimited
inherent jurisdiction over both civil and criminal matters save where
its jurisdiction is specifically limited by statute. Over and above
its inherent jurisdiction s171 of the Constitution clothes the High
Court with unlimited original jurisdiction over all civil and
criminal matters.
The
meaning and import of inherent jurisdiction has been the subject of
courts and scholarly interpretation.
In
Martin
Sibanda and Anor v Benson Chinemhute and Anor
MAKARAU
J as she then was described the concept in graphic imagery as a
building open to all citizenry with all its doors and windows open.
In
Dardale
Investments (Private) Ltd v Econet Wireless Private) Limited
DUBE J
weighed in with a simple but comprehensive definition of the concept
of inherent jurisdiction when she said:
“Inherent
power is unwritten power which superior courts are endowed with.
Inherent power gives the court wide ranging and all-embracing powers
to deal with any matter that may be placed before them. This means
that a court of inherent jurisdiction has default powers which it can
exercise in the absence of express power and can deal with all areas
of law and all procedural matters involving the administration of
justice.”
The
learned author Jerold Taitz
describes inherent jurisdiction as the unwritten power without which
the court is unable to function with justice and good reason as a
superior court modelled on the lines of an English Superior Court.
It
is therefore plain, that clothed with inherent jurisdiction the High
Court in the absence of any statutory prohibition has the necessary
jurisdiction to hear and determine an application for bail pending
appeal against an appeal judgment of that court.
Statutory
jurisdiction of the High Court to determine bail pending appeal
Apart
from its inherent jurisdiction the court a
quo
is granted specific statutory power to hear and determine
applications for bail pending appeal under s123(1)(a)(i) of the
Criminal Procedure and Evidence Act. The section provides as follows:
“Power
to admit to bail pending appeal or review
(1)
Subject to this section, a person may be admitted to bail or have
his conditions of bail altered—
(a)
in the case of a person who has been convicted and sentenced or
sentenced by the High Court and who applies for bail —
(i)
pending the determination by the Supreme Court of his appeal; or
(ii)
pending the determination of an application for leave to appeal or
for an extension of time within which to apply for such leave; by a
judge of the Supreme Court or the High Court;”
As
can be seen, the above section grants the relevant courts the power
to grant bail pending appeal without excluding or qualifying the High
Court's power to grant bail pending appeal. What this means is that
it is at large to exercise its unlimited inherent and statutory
jurisdiction to hear and determine any application for bail pending
appeal without any let or hindrance.
The
learned judge a
quo
therefore misinterpreted the section to mean that the applicant
should first approach the Supreme Court before approaching the High
Court.
That
interpretation of the law is clearly untenable and illogical as it
turns the hierarchy of the courts upside down. This is for the simple
reason that in terms of s171 as read with s169 of the Constitution
the High Court is primarily a court of first instance whereas the
Supreme Court is basically an appellate court.
Matters
naturally flow from the High Court to the Supreme Court and
ultimately to the Constitutional Court.
Doing
otherwise as suggested by the learned judge a
quo
will be contrary to law and against common sense and logic for one
does not climb a tree from the top but from the bottom going up.
Likewise,
cases must start from the lower courts going to the higher courts.
The
learned judge a
quo
was therefore duty bound to complete the application before him
without abdicating his responsibility.
In
any case, there is no law which permits the learned judge to defer
uncompleted bail matters before him for adjudication by this Court as
if it was a court of first instance. The deferment was therefore
grossly irregular, unprocedural and contrary to law.
Disposition
That
being the case, the learned judge misdirected himself and fell into
grave error. His order deferring the application to this Court cannot
stand on account of serious irregularity. Having said that it will be
necessary to invoke the provisions of s25(2) of the Supreme Court Act
[Chapter
7:13]
and set aside the order of the court a
quo.
The
section confers jurisdiction on this Court to intervene on review to
correct such irregularities whenever they come to this Court's
attention.
In
the result it is ordered that:
1.
The court a
quo's
order declining jurisdiction and deferring the application for bail
pending appeal to this Court be and is hereby set aside.
2.
The matter be and is hereby remitted to the court a
quo
for determination of the application for bail pending appeal.
The
applicant appeared in person
The
Prosecutor General's Office,
the respondent's legal practitioners
1.
1978
ZLR 282 (A)
2.
1980 ZLR 466 (A)
3.
HH131/14
