No S.C. 50\2002
Application No 180\2002
ATTORNEY-GENERAL v (1) SAZINI MPOFU (2) KETHANI
COURT OF ZIMBABWE
JUNE 20, 2002
for the applicant
for the respondents
CHIDYAUSIKU CJ, in Chambers, in terms of Rule 19 of the Supreme
Court of Zimbabwe Rules
is an appeal by the Attorney-General against the grant of bail to the
respondents by the High Court, Bulawayo.
grounds of appeal appear in a notice of appeal which provides as
Learned Trial Judge did not give due weight and consideration to the
States fears that the Respondents may abscond if
Learned Trial Judge did not give due weight to the facts placed on
record pointing to the very real possibility that the Respondents
will abscond if granted bail.
is, also before me, an application headed Urgent Court Application.
That application is supported by a certificate of urgency,
founding affidavit, a condonation affidavit (sic) and a draft order.
The draft order reads as follows:-
the application is granted and for the avoidance of doubt, it is
hereby ordered that the decision liberating the Respondents,
a High Court Judge in Bulawayo, on 14 June 2002, whilst a Condonation
Application filed under SC 180/02 was still pending,
founding affidavit was deposed to by the Director of Public
Prosecutions. It reads, in part, as follows:-
the two respondents were granted bail I instructed our Bulawayo
Office to immediately note an appeal in terms of section 121
Criminal Procedure and Evidence Act [Chapter 9:07]. I also
instructed our Bulawayo Office to prepare the necessary notice
they duly did.
I received by way of fax, copies of the notice and grounds of appeal
which I assigned to our Appeals Section.
was subsequently brought to my attention that no notice of appeal had
been filed with the Supreme Court. I checked with Mr Nemadire
explained that he was under the impression that papers had been duly
filed with the Supreme Court.
thereafter instructed Mr Nemadire to rectify the anomaly. He
subsequently did so and deposed to an affidavit annexed to this
in which he explains what took place.
it be noted that the notice of appeal was filed with the Bulawayo
High Court and served on respondents Counsel on 31 May 2002,
days after bail had been granted. This shows that the
Attorney-General was serious in his intention to appeal.
condonation sought by Mr Nemadire had not been deliberated upon when
the High Court subsequently ordered the release of the respondents
the basis that no appeal had been heard within seven days of the
suspension of the order granting bail.
pray that the order of the High Court to release respondents prior to
the hearing of the application for condonation for late noting
appeal and the actual hearing of the appeal be set aside.
support of the Urgent Court Application was an affidavit from Mr
which reads as follows:-
the undersigned, MORGEN NEMADIRE,
sworn gives the Honourable Court to understand that:
appear in this matter as Counsel for the Appellant.
Notice of Grounds of Appeal have been filed after the required 7 day
limited today (12 June 2002) with this Court.
was some mix-up
between the Appellant (The Attorney-Generals two Offices (i.e.
Bulawayo and Harare):
delivered its judgment on 29 May 2002, the State Counsel then,
compiled and filed Notice and Grounds of Appeal against the judgment
on 31 May 2002.
Date Stamp on Notice and Grounds.
is most probable that State Counsel then, rest assured that Appellant
(the State), had duly notified the Court as well as provided
Grounds upon which the appeal was to be made.
It was only as
late as the 12th
of June 2002, when Appellants Counsel (in the Harare Office),
realized that the Notice and Grounds had not been duly filed with
in all, it is a result of communication breakdown between or amongst
all parties concerned, here (i.e. State Counsel, Bulawayos
Court Assistant Registrar and Respondents Counsel).
Honourable Court, condone the late filing of Notice and Grounds of
Appeal in the matter under SC 180/02.
is quite apparent from the relief sought and the supporting
affidavits that this application is a Chamber application and not a
court application. A court application is an application to this
Court usually made up of a minimum of three judges. A Chamber
application is an application to a single judge of this Court. I
will, accordingly, treat this application as a Chamber application.
It is quite apparent that both parties wish this matter to be treated
as an urgent Chamber application.
is not clear on the papers which particular Rule of this Court the
Attorney-General had failed to comply with and was now seeking
condonation. However, the issue of condonation became irrelevant
when Mr Nemadire
conceded that no leave to appeal against the admission to bail of the
respondents had been sought and granted from the learned judge
presided over this matter. The failure by the Attorney-General to
seek leave to appeal against the order granting bail is a
omission to this appeal.
proper reading of section 121 of the Criminal Procedure and Evidence
Act [Chapter 9:07] as read with section 44(5) of the High Court
[Chapter 7:06] reveals that an appeal from the High Court to this
Court against the granting or refusal to grant bail is not
right. The leave of the presiding judge is required. If such
leave is refused only then can a judge of this Court entertain
application for leave to appeal and, if such leave is granted, the
appeal itself. While there might be some doubt as to whether
refusal or granting of bail is an interlocutory order or judgment in
the usual sense it is so for the purposes of sections 121
Criminal Procedure and Evidence Act as read with section 44(5) of the
High Court Act. In the case of S
v Dzawo 1998 (1) ZLR
536 (S) this Court proceeded on the basis that such leave is
required. Indeed, the Attorney-General did not seek to
such leave is not required.
4 of the Supreme Court Rules empower a judge of this Court to condone
or authorise a departure from the Rules of this Court.
empowerment does not include the condonation of failure to comply
with a statutory requirement. The requirement that the
leave of the
court a quo
be obtained prior to this Court hearing the appeal is a statutory
requirement which I have no jurisdiction to condone. In the absence
of an application for that leave to the court a
Attorney-General has no leg to stand on.
practical effect of section 121 of the Criminal Procedure and
Evidence Act as read with section 44(5) of the High Court Act is
where the Attorney-General wishes to appeal against an admission to
bail he has to obtain the leave of the court a
quo or the leave of a
judge of this Court within seven days of the court order if the
accused person is to remain in custody beyond seven
days. This was
not done in this case.
reason of the Attorney-Generals failure to comply with the
provisions of section 121 of the Criminal Procedure and Evidence
[Chapter 9:07] as read with section 44(5) of the High Court Act this
appeal is not properly before me. The appeal, if one can
that, is accordingly dismissed.
Low & Barry, respondent's