REPORTABLE (1)

Judgment No. SC 1/04

Crim. Application No. 12/04

PHILLIP CHIYANGWA v

(1) THE STATE (2) THE ATTORNEY-GENERAL

(3) THE MINISTER OF JUSTICE, LEGAL AND PARLIAMENTARY AFFAIRS

(4) THE REGISTRAR OF THE HIGH COURT, HARARE

SUPREME COURT OF ZIMBABWE

CHIDYAUSIKU CJ, CHEDA JA & GWAUNZA JA

HARARE, JANUARY 19 & 20, 2004

H Zhou, with him L M Mhishi, for the applicant

A M Wamambo, with him C Mandimiiri, for the respondents

CHIDYAUSIKU CJ: The applicant in this case filed an urgent chamber application seeking the relief set out in the draft order, which reads as follows:

“IT IS ORDERED THAT:

1. The order granted by His Lordship MR JUSTICE KARWI on 16 January 2004, admitting the applicant to bail on certain conditions, be and is hereby declared enforceable notwithstanding notification by the second respondent of its intention to appeal and notwithstanding any subsequent appeal by the second respondent against (the) same.

2. The fourth respondent or any of his officers be and is hereby ordered to accept payment of bail from the applicant and to issue a warrant of his liberation in terms of the law.

3. (The) second respondent be ordered to pay the applicant’s costs on an attorney and client scale.”

After hearing submissions by counsel in chambers (the actual hearing was in a courtroom because of the number of people wishing to attend the hearing), I directed that the matter be argued before the Court made up of three judges. The matter was thereafter argued in Court.

The facts of this case are common cause. The only issue to be determined by this Court is the correct meaning to the ascribed to s 121 of the Criminal Procedure and Evidence Act [Chapter 9:07] (“the Act”).

The facts are these. The applicant was arrested by the police on 10 January 2004. He applied to the High Court challenging his arrest. The matter was heard by MR JUSTICE BHUNU on 11 January 2004 who granted an order for the release of the applicant forthwith. The applicant was not released for reasons that are not apparent on the record. He was instead placed on remand on 12 January 2004. He was placed on remand facing three charges, namely (a) defeating or obstructing the course of justice; (b) contempt of court; and (c) perjury.

The applicant applied to the magistrate's court for bail pending his trial. The application was refused and the applicant was remanded in custody.

The applicant then appealed against the refusal to grant him bail to the High Court. The appeal was heard by KARWI J who allowed the appeal and made the following order:

“IT IS ORDERED:

1. That the applicant be admitted to bail in the sum of $5 000 000.00 (five million dollars).

2. That the applicant should not interfere with witnesses.

3. That the applicant surrender all his travel documents.

4. That the applicant report to the police at Harare Central Police Station three times a week, on Monday, Wednesday and Friday, between the hours of 6.00 am and 6.00 pm.”

Upon the making of the above order by KARWI J the Attorney-General, purporting to act in terms of s 121(3) of the Act, advised the learned judge that he intended to appeal. This, it was argued, activated the requirement that the applicant remains in custody for seven days or until such time as the Attorney-General would have indicated that he did not wish to proceed with the appeal. This prompted the applicant to approach this Court on the basis that the Attorney-General has no right of appeal against the order of KARWI J.

I initially had reservations on whether this matter was properly before this Court. In this regard Mr Zhou made the following submissions. He submitted that the Supreme Court was a superior court which has the power, jurisdiction and authority to review the proceedings and decisions of inferior courts of justice, tribunals and administrative authorities. For this proposition he relied on s 52(2) of the Supreme Court Act [Chapter 7:13]. He further argued that the Supreme Court is endowed with inherent jurisdiction or, in the words of FLEMING J, an “undefined power which was intended when the Court was created in order to attend to basically any unlawful interference with rights” – see Chunguete v Minister of Home Affairs & Ors 1990 (2) SA 836 (WLD) at 844F.

Mr Wamambo, for the respondents, did not dispute the above proposition. Therefore, jurisdiction is not an issue.

The issue is this: Does the Attorney-General have, in terms of s 121 of the Act, the right of appeal against the order of KARWI J as he contends? Or does he not have such a right as Mr Zhou contends?

Section 121 of the Act provides as follows:

“121 (1) Subject to this section and to subsection (5) of section 44 of the High Court Act [Chapter 7:06], where a judge or magistrate has admitted or refused to admit a person to bail –

(a) the Attorney-General or his representative, within seven days of the decision; or

(b) the person concerned, at any time;

may appeal against the admission or refusal or the amount fixed as bail or any conditions imposed in connection therewith.

(2) An appeal in terms of subsection (1) against a decision of –

(a) a judge of the High Court, shall be made to a judge of the Supreme Court;

(b) a magistrate, shall be made to a judge of the High Court;

(3) A decision by a judge or magistrate to admit a person to bail shall be suspended if, immediately after the decision, the judge or magistrate is notified that the Attorney-General or his representative wishes to appeal against the decision, and the decision shall thereupon be suspended and the person shall remain in custody until –

(a) if the Attorney-General or his representative does not appeal in terms of subsection (1) –

(i) he notifies the judge or magistrate that he has decided not to pursue the appeal; or

(ii) the expiry of seven days;

whichever is the sooner; or

(b) if the Attorney-General or his representative appeals in terms of subsection (1), the appeal is determined.

(4) An appeal in terms of subsection (1) by the person admitted to bail or refused admission to bail shall not suspend the decision appealed against.

(5) A judge who hears an appeal in terms of this section may make such order relating to bail or any condition in connection therewith as he considers should have been made by the judge or magistrate whose decision is the subject of the appeal.

(6) Subsections (2) to (6) to section one hundred and sixteen shall apply, mutatis mutandis, in relation to any appeal in terms of this section.

(7) Any order made by a judge in terms of subsection (5) shall be deemed to be the order made in terms of the appropriate section of this Part by the judge or magistrate whose decision was the subject of the appeal.

(8) There shall be no appeal from a decision or order of a judge in terms of this section.

(9) This section shall apply in regard to a private prosecution as if references to the Attorney-General were references to the private party instituting the prosecution.”

On a proper reading of the above section, there is no doubt that when a magistrate or a judge hears a bail application in the first instance, there is a right of appeal by an accused person and the Attorney-General to the High Court from the magistrate’s decision and to the Supreme Court from a High Court judge’s decision. That much is common cause. It is also common cause that in such a case if it is the Attorney-General who notes the appeal in terms of s 121(3) of the Act the accused person is liable to remain in custody for seven days.

Subsection (5) of s 121 of the Act empowers a judge hearing an appeal to make such order relating to bail or any conditions in connection therewith as he considers should have been made by the judge or magistrate whose decision is the subject of the appeal.

Subsection (6) of s 121 of the Act merely incorporates the provisions of s 116 of the Act; while subs (7) provides that any order made by a judge in terms of subs (5) shall be deemed to be the order made in terms of the appropriate section of this Part by the judge or magistrate whose decision was the subject of the appeal.

Subsection (8) provides that: “There shall be no appeal from a decision or order of a judge in terms of this section” (my emphasis).

I have no doubt in my mind that subs (8) of s 121 deprives any party – both the accused person and the Attorney-General – of any right of appeal against any order made by a judge in terms of subs (5) of s 121 of the Act. Thus, when a judge of the High Court hears a bail application in the first instance he is exercising his power in terms of s 121(1) and whatever decision he makes is appealable. However, when he hears a bail application as an appeal judge he does so in terms of s 121(5) of the Act and any order he makes when sitting as such is not appealable because of the provisions of subs (8) of s 121.

This, in essence, was the contention of Mr Zhou and I find myself in agreement with him.

Mr Wamambo, for the respondents, has argued that a party to bail proceedings is allowed only one appeal. Thus, if bail proceedings start in the magistrate's court, as was the case here, and an accused who is refused bail appeals to the High Court he has exhausted his one chance of appeal and therefore cannot appeal to the Supreme Court. However, if it is the Attorney-General who loses in the High Court he is entitled to appeal to the Supreme Court because he has not as yet utilised his one chance to appeal.

I am not persuaded by this argument for a number of reasons.

That interpretation, in my view, would confer the right of appeal to one party, the Attorney-General, and deny the similar right to the other party, the accused, in the same proceedings. This would be grossly unfair and the legislature could not have intended such an unjust situation.

I also find nothing in the express and explicit language of subs (8) of s 121 of the Act that confers the right of appeal on the Attorney-General against an order made by a judge in terms of subs (5), while denying the same right to an accused person.

Mr Wamambo cited the case of S v Zawo 1998 (1) ZLR 536 (S) as authority for his proposition. I do not accept that submission. Zawo’s case supra is authority for the proposition that an accused person has the option of commencing bail proceedings in the magistrate's court or the High Court. If he chooses to start in the magistrate's court, then his right of appeal is exhausted by the one appeal to the High Court. He cannot, in the event of the decision going against him in the High Court, appeal to the Supreme Court because of subs (8) of s 121 of the Act. In Zawo’s case supra the Court did not in any way address the right of appeal of the Attorney-General, as that was not an issue in that case.

In my view, the conclusion that the Attorney-General has no right of appeal against an order of the High Court made in terms of subs (5) of s 121 of the Act is consistent with the conclusion reached by this Court in Zawo’s case supra.

In conclusion, I am satisfied that the Attorney-General cannot appeal against the order of KARWI J because of s 121(8) of the Act. His intention to appeal, communicated to the judge, is devoid of any legal force or effect and certainly does not activate the consequence envisaged in s 121(3) as contended for by the respondents.

In the result, the application succeeds and the following order is made –

“1. The order of KARWI J granted on 16 January 2004 is not appealable by either party and should therefore be complied with.

2. The second respondent shall pay the applicant’s costs on the ordinary scale.”

CHEDA JA: I agree.

GWAUNZA JA: I agree.

Dube, Manikai & Hwacha, applicant's legal practitioners

Civil Division of the Attorney-General’s Office, respondents' legal practitioners