GOWORA
JA: This
is an appeal against the dismissal by the High Court of a chamber
application made in terms of section 35 of the High Court Act [Cap
7:06].
In
the High Court the appellant sought an order upholding an appeal and
the quashing of conviction and sentence in respect of three (3) out
of eight (8) counts wherein the appellant was convicted and sentenced
by the Regional Magistrate on 18 September 2013.
The
appellant has already noted an appeal against conviction and sentence
in respect of all eight (8) counts in the High Court.
In
bail proceedings pending appeal before the High Court the State made
concessions relating to the three (3) counts in question to the
effect that the appellant had prospects of success on appeal.
Consequent
to that concession, the appellant sought relief in terms of section
35 of the High Court Act through a chamber application.
The
learned judge before whom the chamber application was placed in the
court a
quo
held that an application in terms of section 35 could only be made
where the Prosecutor General, as the Attorney General is now referred
to in the Constitution, has given notice to the Registrar of the High
Court that he does not support the conviction.
Accordingly,
the court declined to grant the application.
Section
35 provides as follows:-
“35
Concession of appeal by Attorney-General
When
an appeal in a criminal case, other than an appeal against sentence
only, has been noted to the High Court, the Attorney-General may, at
any time before the hearing of the appeal, give notice to the
Registrar of the High Court that he does not for the reasons stated
by him support the conviction, whereupon a judge of the High Court in
chambers may allow the appeal and quash the conviction without
hearing argument from the parties or their legal representatives and
without their appearing before him.”
In
casu
it is not in dispute that no such notice to the Registrar was given
by the Prosecutor General.
In
our view the submissions made by the State in bail proceedings do not
constitute the notice envisaged or contemplated in terms of section
35. That provision clearly requires a formal notice to be given by
the Prosecutor General to the Registrar of the High Court that he
does not, for reasons stated by him, support the conviction. This is
a statutory requirement which is essential to the granting of any
relief in terms of the section. Moreover any such application
presupposes that the Prosecutor General has exercised his discretion
and has applied his mind before giving the requisite notice. In the
absence of such notice the High Court cannot entertain any
application purporting to be made in terms of the said section.
Accordingly,
the applicant was out of court both before this court and the High
Court.
We
see no reason to fault the decision of the court a
quo.
In
the result we are of the unanimous view that the appeal has no merit
and should be dismissed.
Accordingly,
it is ordered that the appeal be and is hereby dismissed.
GWAUNZA
JA: I
agree
PATEL
JA: I
agree
Scanlen
& Holderness,
appellant's legal practitioners
Prosecutor
General,
respondents' legal practitioners
