The applicants, who are all members
of the Movement for Democratic Change-Tsvangirai (MDC-T), face charges of
insurgency, banditry sabotage or terrorism under section 23(1)(a)(i)(ii) of the
Criminal Law (Codification and Reform) Act [Chapter 9:23], or, alternatively,
aggravated malicious damage to property in terms of section 143 of the Criminal
Law (Codification and Reform) Act [Chapter 9:23].
On 4 May 2009, the applicants were
indicted for trial in the High Court in terms of section 66 of the Criminal
Procedure and Evidence Act [Chapter 9:07]. The lower court then correctly
proceeded to commit the applicants to prison as required by subsection (2) of section
66 of the Criminal Procedure and Evidence Act [Chapter 9:07].
On 9 April 2009, prior to their
being indicted for trial, this court had granted the applicants bail. The
respondent, however, appealed against this court's decision to grant the
applicants bail and the appeal is still pending in the Supreme Court.
On 17 April 2009, the same date
when the respondent was granted leave to appeal against this court's order of 9
April 2009, the applicants were released from custody on the basis of the
reason that the respondent had not filed its appeal within seven (7) days as
stipulated in section 121 of the Criminal Procedure and Evidence Act [Chapter
9:07]. The respondent, however, contested the release of the applicants and
caused their re-arrest on 22 April 2009.
Following their indictment, the
applicants now approach this court for fresh bail on the basis of changed
circumstances.
In response to the application, the
respondent has raised a point in limine arguing that pending the determination
of the appeal against bail filed in the Supreme Court by the respondent on 17
April 2009, the applicants cannot bring a fresh application for bail. The
applicants, it is argued, are therefore not properly before the court.
Furthermore, the respondent argues
that as far as the issue of bail is concerned, the applicants do not fall under
the ambit of section 66 of the Criminal Procedure and Evidence Act [Chapter
9:07]. This, the respondent submits, is because following the appeal to the
Supreme Court, this court's Order of 9 April 2009, which granted the applicants
bail, was automatically suspended. That being the case, argues the respondent,
the applicants were in lawful custody at the time of their indictment. There
was, therefore, in the view of the respondent, no need for the lower court to
issue an Order for their commitment to prison.
In response to arguments in support
of the point in limine, the applicants submit that following the release of the
applicants from custody on 17 April, 2009 the respondent has not been able to
legally reverse the act of their release. The applicants therefore submit that
at the time of their indictment they were still on bail, which bail was only
revoked upon their indictment for trial in the High Court in terms of section
66 of the Criminal Procedure and Evidence Act [Chapter 9:07]. The applicants
further submit that the new circumstances brought about by the indictments
against them necessitates that they make fresh applications for bail. The
applicants argue that even if the Supreme Court were to rule in their favour,
the operation of section 66 of the Criminal Procedure and Evidence Act [Chapter
9:07] would not avail them the benefit of the bail granted by this court on 9
April 2009. That bail, having been granted prior to indictment, would not
escape automatic cancellation/revocation under subsection (2) of section 66 of
the Criminal Procedure and Evidence Act [Chapter 9:07].
It is, in my view, quite clear that
the point in limine arises out of different interpretations being given to section
66 of the Criminal Procedure and Evidence Act [Chapter 9:07]. The relevant
subsections, namely subsections (1) and (2), provide as follows:
“(1) If the Attorney-General is of
the opinion that any person is under reasonable suspicion of having committed
an offence for which the person may be tried in the High Court, the
Attorney-General shall cause written notice to be served on -
(a) A magistrate for the province within which the
person concerned resides or for the time bring is present, or
(b) Any magistrate before whom the
trial of the offence could be held in respect of the offence concerned,
informing the magistrate of his or her decision to indict the person concerned
for trial before the High Court and of the offence for which the person is to
be tried.
(2) On receipt of a notice in terms of subs (1), the
magistrate shall cause the person the person concerned to be brought before him
or her and, notwithstanding any other provision of this Act, shall forthwith
commit the person for trial before the High Court and grant a warrant to commit
him or her to prison, there to be detained till brought to trial before the
High Court for the offence specified in the warrant or till admitted to bail or
liberated in the course of law.” …,.
The language in the above
provisions is quite clear, and, in my view, leads to no ambiguity.
My clear understanding of the above
provisions is that, in terms section 66(2) of the Criminal Procedure and
Evidence Act [Chapter 9:07], even if the applicants were on bail prior to their
indictment on 4 May 2009, such bail fell away as a result of the indictment i.e
bail was revoked. That would place the applicants in the same position as one
who had been denied bail. The respondent has correctly conceded that the
invocation of section 66(2) of the Criminal Procedure and Evidence Act [Chapter
9:07] automatically cancels any existing bail. Furthermore, section 66(2) of
the Criminal Procedure and Evidence Act [Chapter 9:07] also compels the
magistrate to grant a warrant for his/her committal to prison till brought to
trial. Even if the person is already in custody/prison the magistrate is, in my
view, under a legal obligation to pronounce that the indicted person shall
remain in prison till brought to trial before the High Court. This, it was
submitted and not disputed, is what actually happened in casu.
The wording in section 66(2) of the
Criminal Procedure and Evidence Act [Chapter 9:07] – “till admitted to bail or
liberated in the course of law” can only be taken advantage of by an indicted
person in the court before which that person has been indicted. In this case it
is the High Court, and, indeed, the High Court can consider a fresh bail
application if the person committed to prison makes such a fresh application
for his/her liberation. In this regard, it is important to note that, subject
to the provisions of section 117 of the Criminal Procedure and Evidence Act [Chapter
9:07], the law allows for any person who is in custody to apply for bail at any
time.
It appears to me that when the
Attorney-General makes a decision in terms of section 66 of the Criminal
Procedure and Evidence Act [Chapter 9:07], a totally new situation is ushered
in. The parties accept that position. Once indicted, as already stated, any existing
bail is revoked. Accordingly, my assessment of the position is that the
anticipated ruling of the Supreme Court on bail, either way, would not affect
the mandatory operation of section 66(2) of the Criminal Procedure and Evidence
Act [Chapter 9:07]. In terms of that provision of the law, the applicants
cannot avail themselves to the pre-indictment bail unless the High Court
extends that bail. For the purposes of this application, therefore, the appeal
in the Supreme Court is rendered academic. This is so because the
pre-indictment bail has been overtaken by events. As the position stands now,
my understanding of the legal position is that the applicants, like all other
persons who are immediately committed to prison upon indictment, can only be
liberated on the basis of fresh application(s) for bail. The applicants cannot
therefore await a decision which they know, even if in their favour, will not
render them their liberty in the sense that in terms of section 66(2) of the
Criminal Procedure and Evidence Act [Chapter 9:07], the bail that is the
subject of appeal in the Supreme Court would not apply to the new situation
unless extended by the High Court. The order which granted them bail only
applied to the period prior to indictment, namely 9 April 2009 to 4 May 2009.
This position is fortified by the fact that the operation of section 66(2) of
the Criminal Procedure and Evidence Act [Chapter 9:07] would, in all cases,
lead to the revocation of any bail granted prior to indictment.
My clear understanding of the
meaning of section 66(2) of the Criminal Procedure and Evidence Act [Chapter
9:07] is that any bail granted by any court to an accused person prior to
indictment, unless extended by the High Court, ceases to operate as soon as the
accused person is indicted for trial. The accused person can, however, upon
indictment, make a fresh bail application before the High Court. Upon
application by the indicted person, it then becomes the prerogative of the High
Court, taking into account the contents of the indictment papers, to either
extend the pre-indictment bail or grant new bail or even deny bail completely.
The Criminal Procedure and Evidence Act [Chapter 9:07], in my view, envisages
this fresh application and hence the phrase “till admitted to bail or liberated
in the course of law.”
There can be no doubt, therefore,
in my view, that the very process of indictment ushers in new circumstances
which entitle an accused person, who, through the indictment papers, now knows
what awaits him/her on the trial date, to properly re-assess his/her position.
This includes his/her suitability as a candidate for bail under the changed
circumstances. To that end, the applicants in casu are exercising their legal
right to make fresh bail application(s) under the changed circumstances. The
applicants are fully aware that in terms of section 66(2) of the Criminal
Procedure and Evidence Act [Chapter 9:07], their pre-indictment bail, which is
the subject of appeal in the Supreme Court, will not in any way save them from
the strict operation of section 66(2) of the Criminal Procedure and Evidence
Act [Chapter 9:07], so as to grant them their liberty.
In casu, therefore, other than
merely relying on the question of changed circumstances as ordinarily
applicable in bail situations, the applicants are approaching the court upon
the dictates of section 66(2) of the Criminal Procedure and Evidence Act [Chapter
9:07]. The applicants can only do so through this court which is now seized
with their trial. As already pointed out, the Supreme Court's ruling, either
way, will not affect their committal to prison. They can only seek their
liberation through making a fresh application before the High Court where they
have been indicted for trial. Accordingly, I do not agree that in the circumstances
of this application, the applicants are necessarily estopped by the pending
appeal in the Supreme Court to proceed to make fresh application(s) for bail.
As I have already stated elsewhere in this ruling, that appeal, in my view, has
become of academic interest due to its having been overtaken by events.
In view of the foregoing, my
finding is that the applicants are properly before the court and can therefore
proceed to argue their case for bail.
Accordingly,
the point in limine is dismissed.
