Court name
Supreme Court of Zimbabwe
Case number
SC 39 of 2004
Civil Appeal 126 of 2002

S and Others v Chiyangwa (12/04) (SC 39 of 2004, Civil Appeal 126 of 2002) [2004] ZWSC 1 (19 January 2004);

Law report citations
Media neutral citation
[2004] ZWSC 1













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