MAHLANGU v THE STATE

HIGH COURT, BULAWAYO

[Bail Application HH 145-16]

June 6 and 9, 2016

MATHONSI J

Criminal procedure  –  Bail  –  Whether bail pending reinstatement of appeal can be granted  –  Original appeal annulled by reason of non-compliance with rule 22 (4) of the Supreme Court (Magistrates Courts) (Criminal Appeals) Rules, 1979  –  Failure to pay for record of proceedings.

Having earlier been admitted to bail pending appeal, with consent of the State, applicant lost his freedom as a result of the appeal being dismissed for want of compliance with r 22 (2) of the Supreme Court (Magistrates Courts) (Criminal Appeals) Rules, 1979 (“Appeal Rules, 1979”). Subsequent to noting an application for reinstatement of appeal, applicant approached the court seeking admission to bail pending hearing of his application and if reinstatement was successful determination of the actual appeal. The State opposed the application on the sole ground that the appeal had not yet been reinstated and as such no appeal was pending.

Held, that by virtue of s 123 (1)(b)(iii) of the Criminal Procedure and Evidence Act [Chapter 9:07] a judge may admit to bail a person who has applied for leave to appeal or for an extension of time during which to appeal. Additionally r 22 (4) of the Appeal Rules, 1979 reposes upon a judge the power to grant leave to file a fresh appeal in a case where an appeal was invalidated on grounds of failure to pay for the record of proceedings. When properly construed these provisions clearly empower a court to grant bail pending reinstatement of appeal.

Legislation considered:

Criminal Procedure and Evidence Act [Chapter 9:07], s 123 (1)(b)(iii)

Supreme Court (Magistrates Courts) (Criminal Appeals) Rules, 1979 (SI 504 of 1979) r 22 (2) and (4)

TJ Tsvangirai, for the applicant

W Mabaudhi, for the respondent

MATHONSI J:

The applicant is a police detective based at CID Law and Order section in Kwekwe. He was convicted about nine years ago on 30 August 2007 of culpable homicide by the Regional Court in Gweru and sentenced to six years imprisonment of which two years imprisonment was suspended on condition of future good behavior.

The applicant noted an appeal against both conviction and sentence on 4 September 2007. After noting the appeal he launched an application for bail pending appeal on 18 September 2007 which the State conceded resulting in this Court admitting him to bail pending appeal by consent on 3 October 2007.

It is not clear what happened after that but on 20 March 2016, almost nine years later, the registrar of this Court advised on the demise of that appeal by reason of failure to pay for the transcription of the record. He wrote:

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