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HH63-21 - ROBERT GUMBURA B157/21 and BLESSING CHIDUKE B136/21 vs THE STATE

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Bail-viz bail pending review.
Procedural Law-viz consolidation of matters.
Attempting to Commit an Offence- viz attempting to escape from lawful custody re section 189 of the Criminal Law (Codification and Reform) Act [Chapter 9:23].
Attempting to Commit an Offence-viz attempting to escape from lawful custody re section 185 of the Criminal Law (Codification and Reform) Act [Chapter 9:23].
Incitement to Commit an Offence-viz malicious damage to property re section 187 of the Criminal Law (Codification and Reform) Act [Chapter 9:23].
Incitement to Commit an Offence-viz malicious damage to property re section 140 of the Criminal Law (Codification and Reform) Act [Chapter 9:23].
Incitement to Commit an Offence-viz resisting a peace officer re section 187 of the Criminal Law (Codification and Reform) Act [Chapter 9:23].
Incitement to Commit an Offence-viz assaulting a peace officer re section 176 of the Criminal Law (Codification and Reform) Act [Chapter 9:23].
Conspiracy-viz conspiracy to commit re section 188 of the Criminal Law (Codification and Reform) Act [Chapter 9:23].
Conspiracy-viz conspiracy to commit re section 143 of the Criminal Law (Codification and Reform) Act [Chapter 9:23].
Indictment-viz multiple accused persons re joint trial.
Procedural Law-viz review proceedings re record of proceedings.
Bail-viz bail pending review re record of proceedings.
Procedural Law-viz review re Rule 256 of the High Court Rules.
Procedural Law-viz review re review powers iro section 26 of the High Court Act [Chapter 7:06].
Procedural Law-viz review re review jurisdiction iro section 26 of the High Court Act [Chapter 7:06].
Procedural Law-viz review re grounds of review iro section 27 of the High Court Act [Chapter 7:06].
Procedural Law-viz review re grounds for review iro section 27 of the High Court Act [Chapter 7:06].
Procedural Law-viz review re review powers in civil proceedings iro section 28 of the High Court Act [Chapter 7:06].
Procedural Law-viz review re review powers in criminal proceedings iro section 29 of the High Court Act [Chapter 7:06].
Procedural Law-viz rules of construction re vague provisions iro intention of the legislature.
Procedural Law-viz rules of interpretation re ambiguous provisions iro legislative intent.
Procedural Law-viz review re unterminated proceedings.
Procedural Law-viz review re incomplete proceedings.
Procedural Law-viz cause of action re legal basis for invoking the jurisdiction of the court.
Bail-viz bail pending review re section 123 of the Criminal Procedure and Evidence Act [Chapter 9:07].
Procedural Law-viz final orders re procedural irregularities iro discretion of the court to strike a matter from the roll.
Bail-viz bail appeal re section 121 of the Criminal Procedure and Evidence Act [Chapter 9:07].
Bail-viz bail appeal re Rule 6 of the High Court Bail Rules.

Court Management re: Consolidation of Matters, Joinder of Actions, Fragmantation of Disputes and the Consolidation Order


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 CRB4105–4113/15 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.

Indictment or Charge re: Multiple or Co-Accused, Multiple Charges and Differing Pleas iro Joint or Separate Trials


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 CRB4105–4113/15 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 and 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 the applicant, Robert Martin Gumbura, as leader, 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.

Review re: Suspension of Orders Pending Review


It is trite that the institution of review proceedings does not suspend the proceedings whose review 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.

Review re: Unterminated or Incomplete Proceedings, Stay of Proceedings Pendente Lite and the Doctrine of Ripeness


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 CRB4105–4113/15 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 and 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 the applicant, Robert Martin Gumbura, as leader, 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 application 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 Blessing Makomborero 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 Blessing Makomborero 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 review 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.

Bail re: Bail Pending Trial iro Approach, Constitutional Right to Bail & Denial of Bail in the Interests of Justice


Bail pending trial is applied for by an accused whose trial is yet to commence.

Bail re: Bail Appeal and Leave to Appeal iro Approach


It is noted that the provisions of section 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....,.

The appeal would have to be based on the record of proceedings as at the date of the decision appealed against....,.

There is yet another reason why the appeal or application of Blessing Makomborero 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.”

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.

Attempting to Commit or Incitement to Commit an Offence & the Element of Realisation of a Real Risk or Possibility


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 CRB4105–4113/15 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 and 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 the applicant, Robert Martin Gumbura, as leader, 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 application 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.

Accessory, Accomplice, Common Purpose, Conspiracy to Commit, Co-perpetrators and Complicity re: Approach


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 CRB4105–4113/15 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 and 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 the applicant, Robert Martin Gumbura, as leader, 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 application 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.

Bail re: Bail Pending Appeal, Review, Reinstatement of an Appeal and Interlocutory Proceedings iro Approach


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 CRB4105–4113/15 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 and 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 the applicant, Robert Martin Gumbura, as leader, 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 application 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 Blessing Makomborero 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 Blessing Makomborero 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 section 123(2) of the Criminal Procedure and Evidence Act [Chapter 9:07].

The reference to subsection (2) of section 123 of the Criminal Procedure and Evidence Act aforesaid is an obvious error because that sub-section simply provides that the provisions of section 117 and 117A shall mutatis mutandis apply to applications made in terms of section 123 of the Criminal Procedure and Evidence Act.

Section 123(1)(a) and (b) of the Criminal Procedure and Evidence Act 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 section 123 of the Criminal Procedure and Evidence Act therefore do not apply to an accused who is in the shoes of the two applicants who are not yet convicted and sentenced.

Applicant Gumbura's application, to the extent that he bases it on the provisions of section 123 of the Criminal Procedure and Evidence Act is not provided for and therefore an incompetent application. It must be struck off the roll.

Applicant, Chiduke's application somewhat sits 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 applicant Chiduke, which purports to be an appeal, must be struck off the roll.

It is noted that the provisions of section 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 Chiduke 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 Blessing Makomborero 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.”

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.

Review re: Terminated or Complete Proceedings iro Approach, Review Jurisdiction, Powers, Grounds & Record of Proceedings


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 CRB4105–4113/15 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 and 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 the applicant, Robert Martin Gumbura, as leader, 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 application 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 Blessing Makomborero 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 Blessing Makomborero 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 section 123(2) of the Criminal Procedure and Evidence Act [Chapter 9:07].

The reference to subsection (2) of section 123 of the Criminal Procedure and Evidence Act aforesaid is an obvious error because that sub-section simply provides that the provisions of section 117 and 117A shall mutatis mutandis apply to applications made in terms of section 123 of the Criminal Procedure and Evidence Act.

Section 123(1)(a) and (b) of the Criminal Procedure and Evidence Act 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 section 123 of the Criminal Procedure and Evidence Act therefore do not apply to an accused who is in the shoes of the two applicants who are not yet convicted and sentenced.

Applicant Gumbura's application, to the extent that he bases it on the provisions of section 123 of the Criminal Procedure and Evidence Act is not provided for and therefore an incompetent application. It must be struck off the roll.

Applicant, Chiduke's application somewhat sits 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 applicant Chiduke, which purports to be an appeal, must be struck off the roll.

It is noted that the provisions of section 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 Chiduke 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 Blessing Makomborero 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.”

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.

Rules of Construction or Interpretation re: Approach, Inconsistencies Between Statutes & Ambiguous Provisions


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 CRB4105–4113/15 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 and 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 the applicant, Robert Martin Gumbura, as leader, 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 application 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 Blessing Makomborero 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 Blessing Makomborero 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 section 123(2) of the Criminal Procedure and Evidence Act [Chapter 9:07].

The reference to subsection (2) of section 123 of the Criminal Procedure and Evidence Act aforesaid is an obvious error because that sub-section simply provides that the provisions of section 117 and 117A shall mutatis mutandis apply to applications made in terms of section 123 of the Criminal Procedure and Evidence Act.

Section 123(1)(a) and (b) of the Criminal Procedure and Evidence Act 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 section 123 of the Criminal Procedure and Evidence Act therefore do not apply to an accused who is in the shoes of the two applicants who are not yet convicted and sentenced.

Applicant Gumbura's application, to the extent that he bases it on the provisions of section 123 of the Criminal Procedure and Evidence Act is not provided for and therefore an incompetent application. It must be struck off the roll.

Applicant, Chiduke's application somewhat sits 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 applicant Chiduke, which purports to be an appeal, must be struck off the roll.

It is noted that the provisions of section 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 Chiduke 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 Blessing Makomborero 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.”

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.

Final Orders re: Approach, Variation, Misdirections, Dismissal For Want of Prosecution and Effect of Procedural Irregularities


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 CRB4105–4113/15 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 and 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 the applicant, Robert Martin Gumbura, as leader, 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 application 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 Blessing Makomborero 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 Blessing Makomborero 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 section 123(2) of the Criminal Procedure and Evidence Act [Chapter 9:07].

The reference to subsection (2) of section 123 of the Criminal Procedure and Evidence Act aforesaid is an obvious error because that sub-section simply provides that the provisions of section 117 and 117A shall mutatis mutandis apply to applications made in terms of section 123 of the Criminal Procedure and Evidence Act.

Section 123(1)(a) and (b) of the Criminal Procedure and Evidence Act 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 section 123 of the Criminal Procedure and Evidence Act therefore do not apply to an accused who is in the shoes of the two applicants who are not yet convicted and sentenced.

Applicant Gumbura's application, to the extent that he bases it on the provisions of section 123 of the Criminal Procedure and Evidence Act is not provided for and therefore an incompetent application. It must be struck off the roll.

Applicant, Chiduke's application somewhat sits 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 applicant Chiduke, which purports to be an appeal, must be struck off the roll.

It is noted that the provisions of section 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 Chiduke 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 Blessing Makomborero 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.”

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.

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

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