SAWADYE v THE STATE
HIGH COURT, HARARE
[Bail Pending Appeal HH 514-16]
May 19 and 27, June 1, 3 and 17 and August 26, 2016
CHITAPI J
Criminal procedure - Bail pending appeal - Assessment of prospects of success - Record of proceedings a pre-requisite - Earlier grant of leave to appeal or condonation of late filing of appeal does not on its own entitle an applicant to bail pending appeal.
Criminal procedure - Bail pending appeal - Constitutional right of applicant to be given copy of record of proceeding - Loss of record - Duty of prosecutor to actively assist applicant to get copy.
The applicant, a serving prisoner, was convicted and sentenced to an effective 28 years prison term in October 2005. In January 2010 he was granted condonation for late filing of appeal and he immediately filed his notice and grounds of appeal. The appeal was still pending before the High Court in May 2016 when he filed this application to be released on bail pending the determination of his appeal.
The lengthy delay in disposing the appeal was occasioned by the unavailability of the record of proceedings which was said to have gone missing and all efforts in locating it having yielded nothing.
Held, that a court is not in a position to exercise its discretion whether or not to admit an applicant to bail pending appeal without having considered the record of trial proceedings or at the very least, in the absence of the record, the judgment being appealed against. In the absence of the record of proceedings or the judgment, there would be no material or facts upon which a court may apply its mind in determining the prospects or otherwise of the proposed appeal.
Held, further, that the Constitution of Zimbabwe, 2013 in s 70 (4) and (5) respectively, grants an applicant the right to be given, within a reasonable period after judgment, a copy of the record of proceedings once he or she has paid for it and the right to have his or her appeal determined by a higher court. It is therefore the duty of the State through the responsible organs to ensure that a convicted person gets the record and the Prosecutor-General's office being an organ of the State machinery has an active role to play in this regard.
Cases cited:
R v Milne and Erleigh 1950 (4) SA 601 (W), referred to
R v Mthembu 1961 (3) SA 468 (A), referred to
R v Wolmarans and Another 1942 TPD 279, referred to
S v Benatar 1985 (2) ZLR 205 (H), referred to
S v Chizhanje 2012 (2) ZLR 489 (H), referred to
S v Dzawo 1998 (1) ZLR 536 (S), referred to
S v Labuschagne 2003 (1) ZLR 644 (S), referred to
S v S (A Juvenile) 1991 (1) ZLR 237 (H), referred to
S v Sibanda HH 80-91 (unreported), referred to
S v Zenzele 2009 (2) SACR 407 (WCC), referred to
S v Zondi 2003 (2) SACR 227 (W), referred to
Legislation considered:
Criminal Procedure and Evidence Act [Chapter 9:07], s 123
Firearms Act [Chapter 10:09]
High Court of Zimbabwe (Bail) Rules, 1991 (SI 109 of 1991), s 8
Book cited:
E, , Commentary on the Criminal Procedure Act (Juta & Co Ltd, Cape Town, 1987)
pp 30-31
Applicant in person
E Mavuto, for the respondent
CHITAPI J:
The applicant applies for bail pending appeal. He is a convicted prisoner. He was convicted by the Regional Magistrate at Mutare Court on 29 October, 2005 on three counts of armed robbery, one count of attempted murder and one count of contravening the Firearms Act [Chapter 10:09]. The applicant was sentenced to various terms of imprisonment totalling 40 years. Parts of the sentences were suspended on conditions of good behaviour and restitution with the result that the applicant remained with 28 years to serve. The criminal record book (CRB) number for the applicant's trial is RMU 456/03.
Although this application was filed on 17 May 2016, its determination has delayed because the application is not in order, as shall become apparent in my judgment. Bail applications being matters which affect the liberty of the individual are treated as urgent whether the applicant has been convicted and seeks bail pending review or appeal or has made an application pending the commencement or completion of a trial. Section 8 of the High Court of Zimbabwe (Bail) Rules, 1991 (SI 109 of 1991) ("the Bail Rules") underlines that bail applications once filed should be processed by the Registrar with "utmost urgency" and placed before a judge of this Court for determination. Although the Bail Rules do not specifically apply to bail pending appeal or review after conviction nor give a time line by which the judge should determine a bail application placed before him in such matters, it follows upon a purposive interpretation of s 8 of the Bail Rules as aforesaid that the urgency of bail applications runs through the whole process of filing to determination1.
The application before me is filed in terms of s 123 of the Criminal Procedure and Evidence Act [Chapter 9:07]. The provisions of that section allow a convicted prisoner to apply for bail in the following instances:
(i) pending the determination of his appeal by the appeal court
(ii) pending the determination of an application for leave to appeal
(iii) pending the determination of an application for extension of time within which to appeal
It will be noted that bail in terms of s 123 of the Criminal Procedure and Evidence Act may only be applied for, granted or refused as the case may be pending the determination by a higher court of the matters stated in (i)-(iii) or review. A matter can only be said to be pending determination if it is pending or has been filed and awaits a decision on it. Before a bail application can be entertained in terms of s 123 of the Criminal Procedure and Evidence Act, the applicant must have first filed his appeal (obviously timeously) or filed or made an application for leave to appeal or filed an application for extension of time or a decision on the review of proceedings wherein he was convicted and sentenced must still be pending the review decision thereon.
When the applicant filed this application, he indicated therein that he could not attach the record of his trial proceedings because the records authorities at Mutare Magistrates Court were "frantically" trying to locate the record. The applicant attached copy of a letter dated 13 April 2013 from the Acting Chief Magistrates' office addressed to the applicants' legal practitioners and copied to the Provincial Magistrate, Manicaland Province. The Acting Chief Magistrate indicated in the said letter that the record of the applicants' trial could not be located and that "frantic efforts" were in the process to try and locate it. The Acting Chief Magistrate in the same letter invited the applicants' legal practitioner to attend at the former's offices to discuss the way forward. Apparently, there is no indication as to whether the invitation was acted upon and if so, the result of the meeting.
The applicant averred that because the record could not be located, he was seeking to be admitted to bail and to quote his words he stated "so please may you kindly place my application before the bail court, maybe I can be granted bail until my record is located and the same time until my appeal is heard". A bail application pending appeal is underpinned upon the applicant being able to demonstrate that he has prospects of success on appeal. The other considerations like risk of abscondment and delay in the hearing of the appeal though relevant are secondary. In the case of the applicant, he attached to his application a copy of his application for condonation of late noting of appeal which was granted by Musakwa J on 11 January 2010. He also attached copy of his notice and grounds of appeal filed on 26 January, 2010. The appeal was given reference number CA 130/10 and is accordingly pending before the High Court, Harare since then.
There is no provision in the law for a court to admit a convicted prisoner to bail pending the location of his lost record or indeed pending a reconstruction of such record. It is also not possible for a court to exercise its discretion whether or not to admit an appellant to bail pending appeal without having considered the record of the proceedings being appealed against or at the very least, in the absence of the record of proceedings, the judgment being appealed against. In the absence of the record of proceedings or the judgment appealed against, there would be no material or facts which a court can bring its mind to bear upon in deciding on the prospects or otherwise of the proposed appeal. Since bail applications by their nature involve a judicial exercise of discretion which must be judiciously exercised, there has to be material placed before the court from which the court can make conclusions of fact or law or both and be in a position to exercise a judicial discretion whether to grant or refuse the bail application. In casu the applicant did not file any material from which the court could make a determination on whether or not to release the applicant on bail pending appeal (not pending the location of a lost record). The judgment of the convicting court did not form part of the applicant's application either.
Admittedly, Musakwa J had granted the applicant condonation of the late noting of appeal. I considered that in granting condonation of the late noting of appeal the learned judge would have considered the question of the applicant's prospects of success on appeal. However, without being referred to what material was placed before him so that I acquaint myself with it, it would not be proper to consider the issue of prospects of success as having been determined so as to be binding on me. In any event, it is settled law that the fact that an appellant has been granted leave to appeal or condonation of the late noting of appeal which leave pre-supposes the existence of prospects of success on appeal does not on its own entitle the appellant to bail pending appeal - see R v Milne and Erleigh 1950 (4) SA 601 (W) at 603; R v Mthembu 1961 (3) SA 468 (A). This is so because there are further considerations involved with respect to the grant or refusal of bail pending appeal - see S v Dzawo 1998 (1) ZLR 536 (S); S v Labuschagne SC 21-03 (unreported); S v Benatar 1985 (2) ZLR 205 (H). The Supreme Court in S v Labuschagne (supra) in holding that the mere fact that leave to appeal has been granted does not translate to an automatic entitlement by the appellant to seek release on bail reasoned that the appellant seeking bail pending appeal would have to satisfy the court that the interests of justice would not be endangered by his release on bail.
The State, in response to the bail application was content to simply submit that it could not file a response because the applicant did not provide or file the record of proceedings wherein he was convicted. I was not satisfied that such a response was promotive of justice dispensation. The applicant is in custody. It was not alleged that he was at fault or complicit in the loss of the record. His means to access the record and indeed to cause the preparation of a copy of the record to be availed were next to nil without the active assistance of the State represented by the Prosecutor-General's office. It is trite that an accused or appellant would not be entitled to be discharged on account of a lost or incomplete record - see E , F Commentary on the Criminal Procedure Act (Juta & Co Ltd, Cape Town, 1987) pages 30-31. Where the record is incomplete, destroyed or lost, both the State and the accused have a duty to try to reconstruct the record - see S v Zondi 2003 (2) SACR 227 (W) at 245C-D. The clerk of court would equally have a duty to certify the record as lost and to obtain sworn depositions from witnesses who gave evidence at the trial as to the evidence they gave. The accused would equally be required to provide a sworn deposition as to the evidence he gave. Thereafter, the presiding magistrate would in consultation with the State and accused's representative or the accused certify the reconstructed record - see S v Zenzele 2009 (2) SACR 407 (WCC); S v Chizhanje 2012 (2) ZLR 489 (H); S v S (A Juvenile) 1991 (1) ZLR 237 (H); R v Wolmarans and Another 1942 TPD 279; S v Sibanda HH 80-91 (unreported).
I advised the State representative that I would not allow him to sit back and do nothing about the lost record. The applicant has a right under s 70 (4) and (5) of the Constitution of Zimbabwe, 2013 to be given, within a reasonable period after his trial, a copy of the record of proceedings once he has paid for it and also to appeal and to have his appeal determined by a higher court. It is the duty of the State through the responsible organs to ensure that the convicted person gets the record. The Prosecutor-General's office is an organ of the State machinery and has an active role to play in the reconstruction of the record in criminal cases. It was for this reason that I considered it improper to simply allow the State to throw the buck at the applicant to avail the record of proceedings when he was not the custodian of the record. The duty to avail a court record should be that of the State through its functionaries as it is the custodian. The obligation reposed on the applicant would be to pay for the copy of the record to be availed.
There is no doubt that the applicants' appeal has been pending since 2009 following his conviction in 2005 following a trial which commenced on 27 November, 2003. The matter remains pending in the courts for 13 years. It is necessary that this matter be brought to finality. The applicant's appeal remains pending in this Court for the past six years because the record of proceeding could not be found. A little effort in seeking to remedy the issue of the record on the part of the State should have cured the mishap of the lost record. I say so because the State was represented in the application for condonation of the late noting of appeal before Musakwa J. The State could only have responded to the application after considering the transcribed record. With reports going back to 2011 from the Chief Magistrates office that the record was lost or could not be found, efforts at reconstruction should have been commenced long back.
National Prosecuting Authority, for the State