HIGH COURT OF ZIMBABWE
HARARE, 28 January 2021
O Shava, for the appellant
A Muziwi, for the respondent
FOROMA J: At the initial hearing of this matter and as a result of Mr Muziwi for the State raising argument in support of the point in limine after the defence counsel had addressed the court on the merit it was agreed that the court peruses the record in B2178/20 in order to appreciate the dispute which resulted in applicant’s appeal being stuck off the roll to enable the Court to determine whether appellant had returned to Court on the same defective papers.
On perusing B2178 I confirmed that indeed the appellant’s matter had been struck off the roll because applicant’s appeal was fatally defective. This was an ex tompore order by the court which did not provide detailed reasons.
Accordingly, I could not get assistance from the said record to determine the point in limine that respondent raised in casu.
Assuming in favour of respondent that the reasons for the applicant’s application being struck off the roll are as contended for by Mr Muziwi, the way forward is to consider whether appellant’s papers per B89/21 are a proper appeal to this Court.
Para 6 of the appellant’s appeal against refusal of bail pending trial reads as follows:
6- This is an appeal against the refusal to admit the appellant to bail pending trial by a magistrate sitting at Harare magistrates Court on the 10th December 2020. The appeal is premised on the following ground
- The Court a quo erred in denying appellant bail when the State had failed to establish compelling reasons for his continued detention, in particular when no evidence was placed on record to prove that appellant was a flight risk or would abscond if released on bail.”
It is trite that no appeal lies against the refusal of bail to an appellant per se. this has been stated in various previous decisions eg. In Barros and Anor v Clein Ponda 1999 (1) ZLR 59, S v Mulunjwa 2003 (1) ZLR 275 H. In order for an appellant to succeed in an appeal against refusal of bail an appellant must show that the Court a quo in denying the appellant bail committed a misdirection or an irregularity. The Court a quo cannot have its decision regularly and judiciously arrived at simply impugned because another tribunal faced with the same set of facts could have come up with a different decision namely one granting appellant bail pending trial. This is because the grant of bail is a matter of the exercise of discretion by the Court. Thus substituting one Court’s discretion with another without impugning the discretion sought to be substituted would be an improper and unjustified attack of the use of the Court’s discretion by the Court seeking to substitute its own without any jurisprudential support.
In casu and as quoted above the basis for assailing the Court a quo’s decision to deny the appellant bail is not indicated in the ground of appeal. Mere suggestion that the Court a quo made an error in denying appellant bail without giving the cause of the error makes the ground of appeal fatally defective. For instance, before the appeal Court can proceed to consider the appeal it ought to be convinced that the complaint by appellant is legally sustainable if proven. It is therefore essential when framing the ground of appeal against refusal of bail to aver a mis discretion or an irregularity as the basis of the challenge of the decision of the Court a quo as it is such misdirection or irregularity the appellant must prove for the appeal to succeed. This protects the appeal Court and saves the time that may be wasted in ploughing through a record and submissions where without a hint there may or may not be contained or established any misdirection or irregularity. For the reason that applicant does not suggest the nature of the error complained about the Court should be spared the agony of determining the real cause of compliant by declaring at the outset that the ground of appeal is fatally defective. I find appellant’s ground of appeal to be fatally defective and accordingly dismiss the appeal.
Shava Law Chambers, applicant’s legal practitioners
National Prosecuting Authority, respondent’s legal practitioners