Application
for Bail Pending Review
CHITAPI
J:
The
above two applications have been consolidated only for purposes of
preparing one judgment that disposes of both applications.
The
motivation for the consolidation is based upon the considerations
that both applicants are co-accused in case No. Harare Magistrates
court CRB 4105 – 4113/15 wherein they were arraigned for trial with
six other co-accused. They are also co-applicants with their
co-accused in case No. HC4098/19 wherein they seek a review of the
criminal proceedings.
The
applicants and their co-accused were charged with three offences.
These are;
“Count
1:
Attempt to escape from lawful custody (as defined in section 189(6)
as read with section 185(1)(b)(4) of the Criminal Law Codification
and Reform Act, [Chapter 9:23].
Count
2:
Incitement in aggravating circumstances in relation to malicious
damage to property or negligently causing serious damage to property
(as defined in section 187(i)(b) as read with sections140 and
143(a)(i)(ii) or (b) (of the Criminal Law (Codification and Reform
Act, [Chapter 9:23]. Alternatively; Conspiracy in aggravating
circumstances in relation to malicious damage to property or
negligently causing serious damage to property (as defined in section
188(1)(b) as read with section 143(a)(i)(ii) or b (of the Criminal
Law Codification and Reform Act, [Chapter 9:23].
Count
3:
Incitement to assault or resist a peace officer as defined in section
187(10)(b) as read with section 176 (of the Criminal Law Codification
ad Reform Act, [Chapter 9:23]. Alternatively: Conspiracy to assault
or resist a peace officer as defined in section 188(1)(b) as read
with section 143(a)(i)(ii) or (b) of the Criminal Law Codification
and Reform Act, [Chapter 9:23.]”
The
brief background to the charges was that the applicants and their
co-accused were convicts and inmates at Chikurubi Maximum Security
Prison and they remain so. It was alleged that on 13 February, 2015
the inmates with applicant Robert Martin Gumbura as leaader incited
other inmates to protest the quality of food which they were being
fed on at the prison.
He
allegedly incited the prisoners to protest by singing and hitting
cell bars which they did the whole night.
A
month later on 13 March, 2015 the applicants and their co-accused
revived the food protests leading to inmates being disorderly and in
the process damaging property resulting in prison officers firing
warning shots in an endeavor to restore order.
Some
officers were injured in the process.
It
was also alleged that the applicant and co-accused attempted to
escape from prison. Some prisoners were shot and some died.
When
the applicants and the co-accused appeared before the magistrates
court for trial, they pleaded not guilty on 3 September, 2015 and
trial commenced. The trial progressed in fits and starts owing to
logistics and challenges of conducting a trial with several accused
persons. One accused would fall ill or be indisposed and trial would
stall.
The
trial progressed until the state closed its case.
The
applicants and the co-accused applied for their discharge at the
close of the state case.
The
application failed.
They
were dissatisfied with the dismissal of the application. They filed
an application for review of the decision to dismiss their discharge
application. That applications was argued before me on 22 January
2020. I reserved judgment and though judgment has delayed owing to a
heavy workload and voluminous records to be received, the same should
be available inside this first term.
The
applicants have applied for bail pending the determination of the
review application.
In
the case of applicant Robert Martin Gumbura, he attached the record
of the magistrates court proceedings and a transcript of submissions
in argument presented before me in the application for review.
The
application by applicant Blessing Makomborero Chiduke did not have a
record attached to it.
I
should mention that Chiduke appeared before CHINAMORA J in bail court
on 9 February, 2021. His record was referred to me because I already
had heard a similar application by Gumbura on 4 February, 2021 and
had reserved judgment thereon.
On
receiving the record for Chiduke and noticing that his application
was circumstantially similar to Gumbura's I resolved to deal with
the application in chambers in terms of the Chief Justice's
direction which allows for such a course.
I
was also comfortable to deal with the application on the papers
without calling upon the applicant to appear before me because there
are no factual matters in contention. The prayers sought by the
applicants are in any event to be answered on a question of law.
The
question to be answered is whether or not I have competent or valid
applications before me. I must answer the question on whether or not
it is permissible to grant bail pending the determination of the
review application.
The
applicants' applications were instituted as a court application for
review in terms of Order 33 rule 256 of the High Court Rules 1971.
Rule 256 provides as follows:
“256.
Review proceedings by notice of motion
Save
where any law provided, proceedings to bring under review the
decision or proceedings of any inferior court or of any tribunal,
board or officer performing judicial quasi judicial or administrative
functions, shall be by way of court application directed and
delivered by the party seeking to review such decision or proceedings
to the magistrate, presiding officer or chairman of the court,
tribunal or board or to the officer as the case may be and to all
interested parties.”
Rule
256 derives from the general power of review which is reposed in the
High Court by section 26 of the High Court Act, [Chapter 7:06] which
provides as follows:
“26
Powers to review proceedings and decisions
Subject
to this Act, and any other law the High Court shall have power to
review all proceedings and decisions of all inferior courts of
justice, tribunals and administrative authorities within Zimbabwe.”
Sections
27, 28 and 29 respectively provide for the grounds of review powers
of the court upon a review of civil proceedings and last powers of
the court on review of criminal proceedings.
The
observation which requires emphasis is that Part V of the High Court
Act which provides for the High Court's power of review does not
deal with nor refer to the liberty status of the applicant pending
criminal review instituted by the accused person.
It
is trite that the institution of review proceedings does not suspend
the proceedings whose reveiw is sought.
Where
a review of proceedings is sought in the course of the trial, the
trial proceeds unless a stay of proceedings pending review is granted
by the court.
It
is for the record noted that the continuation of the trial of the
applicants and their co-accused stands stayed pending review.
In
regard to whether or not it is open to the applicants in this case to
apply for bail pending review, the starting point is therefore to
acknowledge that the High Court Act in so far as it provides for
powers, procedures and orders which can be made on review, does not
provide that bail may be applied for pending review.
If
such an application may be made, then it would have to be by
reference to some other statute or law.
Applicant
Gumbura based his application on the provisions of s123(2) of the
Criminal Procedure and Evidence Act, [Chapter 9:07].
The
reference to subs (2) of s123 aforesaid is an obvious error because
that subs simply provides that the provisions of s117 and 117A shall
mutatis mutandis apply to applications made in terms of s123.
Section
123(1)(a) and (b) is relevant to the determination I must make in
regard to applicant Gumbura. The provisions thereof read -
“Power
to admit to bail pending appeal or review
1.
Subject to this section, a person may be admitted to bail or have his
bail conditions 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 or High Court;
(b)
In the case of a person who has been convicted or sentenced by a
magistrates court and who applies for bail -
(i)
Where the record of a case is required or permitted, in terms of
section 57 or 58 of the Magistrate Court Act [Chapter 7:10] to be
transmitted for review; pending the determination of the review; or
(ii)
Pending the determination by the High Court of his appeal: or
(iii)
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 High Court or by any magistrate within whose area of
jurisdiction he is in custody.”
The
provisions of s123 therefore do not apply to an accused who is in the
shoes of the two applicants who are not yet convicted and sentenced.
The
applicant Gumbura's application, to the extent that he bases it on
the provisions of s123 of the Criminal Procedure and Evidence Act is
not provided for and therefore an incompetent application. It must be
struck off the roll.
The
applicant, Chiduke's application somewhat seats on a different
footing.
He
has headed it an appeal against the denial of bail pending trial.
The
applicants' trial is not pending. It commenced.
Bail
pending trial is applied for by an accused whose trial is yet to
commence.
The
proceedings of the applicants' trial are on review at the instance
of the applicant and his co-accused.
The
application by the applicant Chiduke which purports to be an appeal
must be struck off the roll.
It
is noted that the provisions of 121(1)(b) of the Criminal Procedure
and Evidence Act provides that accused whose bail has been refused by
a magistrate or Judge may at any time appeal to the High Court or
Supreme Court Judge as the case may be against the refusal or in
relation to any bail condition.
Technically
speaking the applicant herein can therefore note an appeal against
the refusal by the magistrate to admit him to bail. However the
appeal would have to be based on the record of proceedings as at the
date of the decision appealed against. At that stage the applicant
had not yet been tried.
That
position has been overtaken by events. Applicant can only now apply
for bail in the course of trial. Different considerations will apply
because the prospects of conviction or acquittal have to be
considered.
The
applicants appeal is therefore academic.
There
is yet another reason why the appeal or application of Chiduke is
incompetent.
It
does not comply with rule 6(1)(f) of the High Court Bail Rules 1991
which provides that “where the appeal is brought against the
refusal by a magistrate to grant bail,” the appeal should
additionally provide details of;
“(i)
The grounds on which it (bail) was refused if the grounds are known
to the applicant; and
(ii)
The date on which it was refused.”
The
applicant Chiduke did not provide a copy of the bail judgment
appealed against nor the transcript. The appeal cannot be determined
in the air. The appeal is therefore not in order. The applicant filed
the appeal precipitately before putting his house in order. There is
no valid appeal before the court for reasons I have alluded to and
the purported application must be struck off the roll.
The
two applications are therefore disposed as follows: IT IS ORDERED
THAT:
(a)
Both applications case Nos. B157/21 and B136/21 are each struck off
roll.
National
Prosecuting Authority, respondents counsel
