REPORTABLE (23)

Judgment No. SC 33/04

Crim. Application No. 154/04

THE ATTORNEY-GENERAL v EMMANUEL ANESU FUNDIRA

SUPREME COURT OF ZIMBABWE

HARARE, MAY 13 & 17, 2004

F Chimbaru, for the applicant

G C Chikumbirike, for the respondent

Before: CHIDYAUSIKU  CJ, In Chambers, in terms of s 44(5) of the High Court Act [Chapter 7:06]

The facts of this case are largely common cause. The respondent is charged with contravening, firstly, s 5(1)(a)(i) of the Exchange Control Act [Chapter 22:05] (“the Act”) as read with s 11(1)(a) of the Exchange Control Regulations (“the Regulations”), Statutory Instrument 109/96, and secondly, s 5(1)(b) of the Act as read with s 5(2)(9a)(ii) of the Regulations. He was placed on remand in custody.

The respondent applied for bail in the High Court. The bail application was opposed by the Attorney-General. I am advised by both counsel that during the bail application the learned presiding judge indicated that he was inclined to grant bail and invited both counsel to work out what would be appropriate conditions for bail. After a tentative agreement on conditions for bail, the Attorney-General reconsidered his position and would not consent to bail.

The learned judge thereafter granted bail on 3 May 2004. Mr Jagada, for the Attorney-General, immediately notified the court that the Attorney-General intended to appeal against the order in terms of s 121 of the Criminal Procedure and Evidence Act [Chapter 9:05]. The Attorney-General then applied for leave to appeal, which leave was refused by the court a quo. On 5 May 2004, two days later, this application for leave to appeal was filed with the Supreme Court.

The grounds of appeal are set out in paras 4-7 of Mr Jagada’s founding affidavit and read as follows:

“4. I respectfully submit that the Honourable Court misdirected itself and failed to appreciate the following –

(i) That the respondent had sufficient funds in foreign accounts that in the event of him absconding he can afford to sustain himself in (a) foreign land and (the) police may never be able to trace him again. Thus the court failed to appreciate that the temptation to the (respondent) to abscond is … great in view of the wealth possessed by him outside the country;

(ii) That the investigations involve travelling by the police to countries such as South Africa and the United States and for (the) police to access the foreign bank accounts they need to first obtain authority whereas the respondent, if released, can simply give an instruction to his bankers without authority. Thus there is a real likelihood that he may interfere with investigations if released on bail.

5. Finally, it is respectfully submitted that the Honourable Court erred in that there were no reasons given for the admission of the (respondent) to bail. The record of proceedings does not show why the court found the (respondent) to be a suitable candidate for bail.

6. The prospects of succeeding on appeal in the Supreme Court are fairly bright in these circumstances.

7. This Honourable Court is being urged to grant the applicant the leave (to appeal).”

Mr Chikumbirike, for the respondent, did not file any opposing papers. He made oral submissions in support of his contention, set out in some detail in a letter to the registrar dated 11 May 2004. The relevant part of the letter reads as follows:

“The Attorney-General then invoked s 121 of the Criminal Procedure and Evidence Act (Act 8/1997). An application for leave to appeal was then made and it was dismissed by the learned judge. It is from this dismissal of the application for leave to appeal that the present application is before the Supreme Court. In terms of s 121, the Attorney-General or his representative can only appeal against the decision of a judge granting bail within seven (7) days of the granting of the decision. During the seven day period with which the Attorney-General can appeal, the decision granting bail shall be suspended, if immediately after the decision the judge is notified that the Attorney-General or his representative wishes to appeal against the decision. Thereafter, the decision shall remain suspended and the person who had been granted bail shall remain in custody until the expiry of seven days. Consequently, it follows that if the seven days have lapsed and no appeal has been noted, the order of the judge granting bail becomes operative and the person granted bail, the respondent in this matter, shall, upon fulfilling the conditions of the grant of bail, (Annexure ‘A’), be released from custody.

As you will note, Annexure ‘A’ was granted on 3 May 2004. The seven day period within which the Attorney-General may appeal in terms of s 121(1)(b) expired as at the close of business yesterday, 10 May 2004. The Attorney-General has therefore not complied with the provisions of s 121(1)(a). The fact of seeking leave is clear evidence that no appeal has yet been noted to this Honourable Court. Consequently I request that your office give confirmation of the fact of the Attorney-General not having complied with s 121(1)(a) so as to pave the way for the operation of the order of HLATSHWAYO J, and for the release of the respondent, who had on 3 May 2004, immediately after the granting of bail, fulfilled all the conditions for his release.

It should be emphasised that appealing against the decision refusing leave to appeal against the decision of HLATSHWAYO J’s judgment is not the same as noting an appeal, as is contemplated by s 121(1)(a). I should, however, point out that the Attorney-General has misread the law relating to appeals in relation to bail. The procedure (he) followed is predicated upon s 121(8) of Act 8/1997, discussed in the case of State v Dzawo 1998 (1) ZLR 536. In terms of that section, it was necessary to seek leave of the High Court consequent upon the provisions of s 44(5) of the High Court Act. However, the Attorney-General’s representative, in seeking leave before HLATSHWAYO J and in making this application before this Court, overlooked or is ignorant of the fact that s 121 (‘Appeal against decisions regarding bail’) of the Criminal Procedure and Evidence Act [Chapter 9:07] was amended by the repeal of subs (8) (the one upon which (he) relied) and the substitution of –

‘(8) There shall be no appeal to a judge of the Supreme Court from a decision or order of a judge of the High Court in terms of para (b) of subs (2), unless the decision or order relates to the admission or refusal to admit to bail of a person charged with any offence referred to in para 10 or 11 of the Third Schedule, in which event subss (3) to (7) shall apply to such appeal.’

(Statutory Instrument 37/2004).

The effect of this amendment is that in relation to offences referred to in para 10 or 11 of the Third Schedule, there is an automatic right of appeal for which no leave of a judge of the High Court is required before the noting of such appeal is noted by either the Attorney-General or the (respondent).

In this matter, the respondent, Emmanuel Anesu Fundira, was charged with contravening s 5(1) (a) and (b) of the Exchange Control Act as read with para 11 (a) and (b) of subs (1) of s 11 of the Exchange Control Regulations (Statutory Instrument) 109/1996. As is clearly shown by Annexure ‘B’, the request for remand, which was Annexure ‘C’ to his application before HLATSHWAYO J to be admitted to bail before the High Court, the offences with which the respondent is being charged were added to the Third Schedule as para 11 by SI 37/2004. Clearly, therefore, the Attorney-General did not follow the relevant current enactment and is therefore clearly out of time in noting the appeal. The decision in State v Dzawo supra is therefore no longer applicable.

I therefore seek that your office urgently gives a direction to the registrar of the High Court that, as there is no appeal noted, … there be an instruction by the registrar’s office to the Officer-in-Charge, Harare Remand Prison, for the release of the respondent. It is not an excuse on the part of the Attorney-General that (he) overlooked or (was) ignorant of the amendment in SI 37/2004. Ignorance of the law has never been an excuse, more so when it comes from a person like the Attorney-General, who drafted and caused the gazetting of the (Statutory) Instrument. Furthermore, in any event there is not before the Supreme Court an application for leave to note an appeal out of time. Even if such leave is sought by the filing of an application, that does not detract from the fact that as of midnight yesterday, the respondent was entitled to his freedom by operation of the provisions of the Criminal Procedure and Evidence Act. Furthermore, even if such extension of time to note an appeal is granted, that does not in turn suspend the order of HLATSHWAYO J, which can only be suspended within the seven days after the notification to him of the desire to appeal, unless an appeal is noted within that time. An appeal noted outside the seven day period after, for instance, the granting of an extension is not an appeal within seven days contemplated by the Act.”

Mr Chikumbirike’s contention that the Attorney-General does not need leave of the High Court judge concerned to appeal against the granting of bail to anyone charged with an offence referred to in paras 10 or 11 of the Third Schedule cannot be correct.

Section 121(1) of the Code explicitly provides that appeals against decisions granting bail are subject to subs (5) of s 44 of the High Court Act [Chapter 7:06]. Section 44(5) of the High Court Act clearly provides for the requirement of such leave.

Mr Chikumbirike has clearly misinterpreted the amendment to subs (8) of s 121 of the Criminal Procedure and Evidence Act. The amendment to the subsection does no more than make it permissible to appeal in bail matters from the magistrate's court to the High Court and thereafter to the Supreme Court, which was not possible before the amendment. Indeed, the history of the amendment clearly demonstrates that.

In S v Dzawo 1998 (1) ZLR 536 (S) the applicant was convicted of a criminal offence in the magistrate's court. The magistrate refused the applicant’s request to be admitted to bail pending appeal against conviction and sentence. He then appealed to the High Court against the refusal to admit him to bail, but the judge dismissed the appeal. He sought leave from the judge to appeal to the Supreme Court against the judge’s refusal to admit him to bail. The judge declined to grant such leave because he decided that in terms of s 121(8) of the Criminal Procedure and Evidence Act no appeal lay against his decision to the Supreme Court. This Court upheld that decision. This Court held that where a person applies for bail in the magistrate's court and the application is refused he is only entitled to a single appeal against that decision to the High Court. Section 121(8) (before the amendment) of the Code had removed the right of the person concerned who had appealed to a judge of the High Court against a bail decision of a magistrate to take the judge’s decision, subject to leave, on appeal to a judge of the Supreme Court. On the other hand, where a person convicted in the magistrate's court makes his initial application for bail, not to the magistrate, but to a judge of the High Court an appeal still lies with leave to a judge of the Supreme Court.

Dzawo’s case supra was silent on whether or not the Attorney-General could appeal in similar circumstances. That issue was addressed in the recent case of Phillip Chiyangwa v S and Ors SC 1/04. In that case, the applicant was charged with defeating or obstructing the course of justice, contempt of court and perjury. He was placed on remand. He requested to be admitted to bail pending his trial. This was refused by the magistrate. He appealed to the High Court. The High Court granted him bail. The Attorney-General sought to appeal against the granting of bail by the High Court. This Court held that the Attorney-General could not do that because of the provisions of s 121(8). At p 6 of the cyclostyled judgment the Supreme Court had this to say:

“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.”

At p 8 of the judgment the Court concluded:

“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 my view, the amendment to subs (8) does two things –

(a) the amendment asserts the position as set out in both Dzawo’s and Chiyangwa’s cases supra, namely, that no appeal lies to the Supreme Court from an order of a High Court judge sitting as an appeal judge in a bail application; and

(b) creates an exception to the above rule in respect of persons charged with an offence referred to in paras 10 or 11 of the Third Schedule. In other words, applications for bail in respect of those offences can commence in the magistrate's court, then proceed to the High Court and thereafter to the Supreme Court.

The amendment to subs (8) does not exempt any party from the requirement to obtain leave to appeal in a bail application in terms of s 44(5) of the High Court Act.

The Attorney-General applied for leave to appeal to the judge in the court a quo and such leave was refused. He then applied for such leave from this Court within the stipulated seven days. That, in my view, is sufficient compliance with the requirements of s 121 of the Code. The submission by the respondent that no notice of appeal has been filed and therefore the respondent should be released is not tenable.

Section 121(1), which is subject to subs (5) of s 44 of the High Court Act, stipulates that leave to appeal against the granting or refusal of bail is necessary. Thus, where the Attorney-General has been refused such leave by a judge of the High Court he can only obtain such leave from a judge of the Supreme Court upon application if such leave is merited. Until such leave has been granted by a judge of the Supreme Court, a notice of appeal cannot be filed. It is quite clear from a reading of s 121 as a whole that the Attorney-General is required to apply for leave to appeal to a judge of this Court within the stipulated seven days if a High Court judge has refused such leave. Failure to apply for such leave within the seven days entitles the accused person to his release. In my view, it cannot have been the intention of the legislature to require the Attorney-General to file the notice of appeal at a time when it was legally not possible to file such a notice of appeal, by reason of awaiting the outcome of his application for leave to appeal from this Court.

On this basis, I am satisfied that an application for leave to appeal to this Court within seven days of the order of the court a quo constitutes compliance with s 121(3)(b).

Finally, I have to determine whether or not leave to appeal should be granted. Unfortunately, all I have before me is the court order without reasons for judgment. It would appear that no such reasons for judgment were given.

Mr Chikumbirike’s main submission was that the time within which the Attorney-General should have noted an appeal has lapsed and therefore the respondent should be released. He did not advance any argument that leave to appeal should be refused on the merits.

As I have said, I am not privy to the reasons why the application for leave was dismissed in the High Court.

Faced with this situation, two options seem open to me. I can either postpone this application and request the reasons for judgment for the refusal to grant leave and thereafter invite counsel to make submissions; or decide the matter on the basis of the uncontested averments by the Attorney-General that he has good prospects of success on the merits. The former entails some delay, which could be considerable before finalising this application. This is a bail application and as such needs to be disposed of on an urgent basis. The latter option would facilitate a speedy resolution of this matter. I have opted for the latter option in order to speed up the resolution of the matter.

In the result, the application is granted in terms of the draft.

Office of the Attorney-General, applicant's legal practitioners

Chikumbirike & Associates, respondent's legal practitioners