MAWADZE J: This is an appeal against
refusal of bail pending appeal.
The appellant was arraigned before the Provisional Magistrate Harare on 11
December 2013 and charged with contravening s 23(1) of the Maintenance Act [Cap
5:09] (hereafter this Act). The charge preferred against the applicant was
couched as follows:-
“In that on 31st March 2011 and
Harare Civil Court, the accused was ordered by the Magistrate to pay US$800-00
per month as maintenance fee for his four children. The accused person then
failed to pay maintenance and is in total arrears of US$6 660-00”.
Although the State outline is not drafted in a detailed manner it captures the
material facts upon which the charge is premised. The complainant in the
maintenance matter is one Michelle Lisa Crawford who was married to the
appellant but the parties are now divorced. Apparently four children were born
out of this marriage. It is unclear if the maintenance order was granted before
or after the divorce. It is common cause that on 31 March 2011 the appellant
was ordered by the Magistrate Civil Court to pay US$800 per month as
maintenance for the four children. The appellant has since accumulated arrears
to the tune of US$6 660-00. The details of how the maintenance arrears are
calculated are not given. Be that as it may the graveman of the offence
is that the appellant did not comply with the maintenance order and is in
arrears of US$6 660-00 as at the time of his prosecution.
The appellant who was not represented in the court a quo pleaded
guilty to the charge and was duly convicted. The following sentence was
imposed:-
“12 months imprisonment which is wholly
suspended on condition accused pays the full arrears of $6 660-00 to the
applicant Michelle Lisa Crawford through the Clerk of Court Harare by
31/1/14”.
In view of the subsequent application for bail pending appeal by the appellant
to the court a quo, the grounds of appeal and submissions made
by Mr Harvey for the appellant before this court during the appeal hearing it
is prudent to capture the short but precise proceedings as recorded in the
court a quo.
“CHARGE PUT
I understand and admit
271(2)(B)
FACTS AGREED
I understand and agree.
ESSENTIAL ELEMENTS
Q.
So it is correct that on 31/03/11 at Harare Civil Court you were ordered to pay
$800-00 per month as maintenance for your 4 minor children
A.
Yes
Q.
Correct that you defaulted in paying maintenance that you are now in arrears of
$6 660-00
A.
Yes
Q.
You know it was unlawful
A.
Yes
Q.
Any defence
A.
No
BY COURT
Guilty as
charged
NO RECORD
MITIGATION
Aged 41.
Divorced with 4 children. Not employed. I have $50 on person. No valuable
assets”.
After this
inquiry into mitigation brief reasons were then given. The following factors
were considered by the court a quo
in assessing the sentence:
(i)
then appellant was a first offender
(ii)
that appellant showed contrition by pleading guilty to the charge
(iii)
that it is aggravating that appellant had accumulated arrears in the sum of $6
600-00.
(iv)
the need to keep first offenders out of prison
(v)
the need to induce the appellant to pay the arrears for the sake of the four
children.
On 16 December,
2013, five days later, the appellant noted an appeal with this court
against both the conviction and sentence.
The grounds of appeal which inform the application made in the court a
quo for bail pending appeal and the submissions made before the court in
support of the appeal can be summarised as follows:-
(a)
that the appellant pleaded not guilty to the charge as he had no means to pay
maintenance and therefore he had a valid defence to the charge.
(b)
that the court a quo failed to enter a plea of not guilty tendered.
(c)
that appellant is challenging how the amount of $6 600 was arrived at.
(d)
that appellant's answers to the effect that he knew that his conduct was
unlawful and that he had no defence to the charge should not be taken as the
correct position.
(e)
that the nature of the mitigation given by the appellant in the court a quo
should have resulted in the court a quo altering the plea of guilty to
one of not guilty.
(f)
that the sentence imposed induces a sense of shock because the appellant is
unable to pay the arrears of $6 600-00 by the due date given which is 31/01/14
and that the term of imprisonment is draconian.
On 20 December
2013 the appellant now represented by Mr Harvey who had filed a
notice of appeal with this court made an
application for bail pending appeal before the court a quo. The
submissions made by Mr Harvey at p 17 of the record of proceedings are
difficult to appreciate. All one can ultimately discern is that the appellant
made an application for bail pending appeal based on the grounds of appeal I
alluded to. The appellant was unsuccessful. In dismissing the application for
bail pending appeal the court a quo reasoned that the proceedings were
in terms of s 271(2)(b) of Criminal Procedure and Evidence Act [Cap 9:07]
and that the appellant had admitted to the essential elements of the offence.
The court a quo did find that that there was therefore no basis for
the appellant's review or appeal. The court a quo further stated that
if appellant had no means to comply with the maintenance order he should have
applied for the downward variation of the maintenance order as provided for in
s 8 of the Act. On that basis the application was dismissed.
It is this decision which has irked the appellant hence the appeal to this
court.
The law which guided the court a quo in dealing with the application
for bail pending appeal is settled as can be discerned from the plethora of
authorities in our jurisdiction. In a nutshell the court should consider the
following factors:-
(i)
reasonable prospects of success on appeal
(ii)
the likelihood or otherwise of abscondment
(iii)
the balance between the right of individual to liberty and the proper
administration of justice
(iv)
the potential length of delay before the appeal is heard
(v)
any other factors which the court deems necessary in assessing the suitability
of the application for bail pending appeal. See S v Dzawo
1998(1) ZLR 530, Katewera & Anor v S HH 96/13.
In an appeal of
this nature it is the magistrate's decision in the court a quo to deny
appellant's bail pending the prosecution
of his appeal which should be attacked. The case of S v Malujwa 2003
(1) ZLR 275 (H) is illustrative. It was said that;
“In appeals of this nature the approach to
be adopted is looking at whether magistrate misdirected himself when he refused
bail. The appeal should be directed at the judgement of the court a quo.
It is the judgement of the court a quo that the appeal must attack.”
It is clear that for the appellant to succeed in an appeal of this nature, it
should be shown that the magistrate committed an irregularity or a misdirection
or exercised his discretion so unreasonably or in an improper manner to such an
extent that the decision cannot be upheld. See S v Ruturi HH
23/03.
I find no misdirection or any irregularity in the manner the courta quo
dismissed the application for bail pending appeal. In fact having fully
considered the facts of this matter I have no doubt in my mind that this appeal
is not only doomed to fail but is totally misplaced to such an extent that it
amounts to an abuse of the court process. The appellant's conduct in making
such frivolous applications and appeals simply reinforces the view that he is
unwilling to subject himself to the orders of this court. To say the appeal
lacks merit is simply an understatement.
I am disturbed that appellant is prepared to lie and mislead this court on how
the proceedings were held in this courta quo solely for purposes of
justifying this frivolous appeal. The record of proceedings is clear that the
proceedings were held in terms of s 271 (2) (b) of the Criminal Procedure and
Evidence Act [Cap 9:07] which procedure is designed to ensure that an
accused's plea guilty to the charge is a clear and unambiguous admission of the
charge preferred and the essential elements of their charge.
This was a simple matter which appellant could not have possibly failed to
appreciate. Appellant was well aware that a maintenance order of US$ 800-00 had
be awarded as against him in 2011 in respect of his 4 children. The
appellant cannot possibly purport not to know that he did not fully comply with
the order. The appellant is therefore aware of the arrears. It is
disingenuous for appellant to try and argue that he was not aware of the duty
just like any other law abiding citizen of the country to obey the law
especially a clear and explicit court order. The record of proceedings
clearly shows that specific questions relevant to the essential elements of the
offence of non- compliance within the provisions of s 23 (1) of the Act were
put to appellant and he gave clear, specific and unambiguous answers. It is
foolhardy for the appellant to believe he can now woodwink this court by
ascribing different meaning to clear answers he gave in a language he fully
understands. The court a quo was therefore correct to dismiss the
application for bail pending appeal as it was premised on falsehoods and
totally lacked merit.
I find no misdirection in the court a quo's decision to dismiss this
application for bail pending appeal. The appeal therefore lacks merit.
All I can advise the appellant is that he cannot escape the clear obligation to
comply with court orders. A maintenance order was made against him and that
order is extant. Appellant has no choice but to comply with the order. It was
well within his rights to appeal against the maintenance order when it was made
if he had cause to do so. He did not. Further, the appellant could still have
sought its discharge or the downward variation of the maintenance order
in terms of s 8 of the Act if at all he was unable to comply with the order. He
did not save for the feeble counter claim made when his ex-wife sought an
upward variation of the same order. It seems that even after his arrest and
conviction appellant does not appreciate or chooses not to realise the gravity
of the situation. While lack of means may be a defence to a charge of
contravening s 23(1) of the Act at as outlined in s 24 (1) of the Act the
appellant did not raise that defence. He cannot successfully do so now.
The penalty provided for non-compliance with the maintenance order in
contravention of s 23 (1) of this Act is very harsh as it does not provide for
an option of a fine but custodial term not exceeding one year. This clearly
shows the intention of the legislature on the nature of sentences to be imposed
for non-compliance with maintenance orders. This court is the upper guardian of
all minor children and the appellant's conduct of failing to comply with a
maintenance order designed to protect the welfare of and cater for his
children's needs is viewed seriously by this court. I find no misdirection in
the sentence imposed. In fact the appellant should have utilised the
opportunity given until 31 January 2014 to pay off the arrears or at least to seek
an extension of the due date. Instead the appellant shows his determination not
to comply with the maintenance order by persuing a frivolous application for
bail pending appeal and subsequently a hopeless appeal against the court a
quo's decision to refuse to grant bail. The appeal should be dismissed for
want of merit.
In in result it is ordered that the appeal be and is hereby dismissed.
Granger & Harvey, appellant's legal practitioners
National
Prosecution Authority, respondent's legal
practitioners.
