NDOU J: On
23 March 2011 this court granted the respondents bail pending trial. The applicant seeks to protest that judgment
in the Supreme Court. This is an
application for leave to appeal in terms of section 44 of the High Court Act
[Chapter 7:06]. The basis of the appeal
is that this court did not give due weight to the state's fears that the
respondents are likely to pursue their agenda of removing the government
through unconstitutional means. The fear
is founded on the premise that:
“(i) Thousands
of fliers are said to be awaiting distribution by the security department of
Mthwakazi Liberation Front.
(ii) These
fliers have not been recovered by the police.
(iii) The
respondents once released on bail, are likely to cause them to be distributed
to members of the public and therefore continue to pursue their agenda of
removing the government through unconstitutional means.
(iv) The
3rd respondent has a pending case of a similar nature i.e.
contravening section 19(1) (c) of Public Order and Security Act [Chapter 11:17],
Regional Court CRB 71-2/04 and High Court Bulawayo No. 3373/04 wherein he
circulated the 114 page document “wherein he was advocating for the creation of
the “province of Matabeleland by the Ndebele speaking people fighting with
spears and arrows against the government and the Shona speaking people”.
This court is said to have
misdirected itself in dismissing the totality of the messages in the fliers as
not being treasonous and therefore insinuating that the case was not
serious. In judgment HB-53-11 this court
dealt in detail with these issues and I do not wish to repeat them. It is trite that the approach to adopt when
considering an application for leave to appeal should not be based on whether
an appeal is arguable or not, but on its prospect of success. In other words the test to be applied when
considering an application for leave to appeal is whether the applicant has a
reasonable prospect of success on appeal- R
v Baloi 1949(1) SA 523 (AD) and S v Mutasa
1988 (2) ZLR 4 (SC) at 8D-9B. I will now
consider whether the applicant has a reasonable prospect of success on
appeal. For a start this court should
guard against passing a vote of confidence in its judgment. The issue is whether there is reasonable
prospect of the Supreme Court arriving at a different judgment from the same
facts. This is an appeal against the
granting of bail by this court. It is
trite that in this regard that the power of the Supreme Court to interfere with
a decision of this court in a bail application is rather limited. It may only interfere where the High Court
committed an irregularity or misdirection, or where the manner in which it
exercised its discretion was so unreasonable as to vitiate the decision made – S v Ncube
2001 (2) ZLR 556 (S). This court will
now apply these principles to the facts of this case.
The applicant is relying on
misdirection. The charge is indeed
treason, a serious offence. The question
is whether the Supreme Court may reasonably arrive at a decision that the
respondents may commit similar offence i.e. inciting members of the public to
revolt and remove government by unconstitutional means. I will consider the issues raised by the
applicant in this application in turn.
First, there is no evidence to show
the existence of “thousands of fliers”.
The police say they have not recovered them so it is not clear how they
arrived at the number. The applicant's
allegation and fear in this regard is not based on cogent facts. The police searched the respondents' places
of work and abode at the time of arrest.
They recovered some fliers. It is
not clear why they believe there are thousands more concealed somewhere. Second, the issue of a pending similar case
is only applicable to the 3rd respondent. There is no nexus between the 1st
and 2nd respondents and this conduct by the 3rd
respondent.
As far as the 1st and 2nd respondents
are concerned there are no reasonable prospects of success on appeal. As regards the 3rd respondent,
because of the question of the charge under POSA there is a reasonable prospect
of the Supreme Court arriving at a different judgment. There is merit in distinguishing his case
from that of the other two respondents.
Accordingly, it is ordered that
leave to appeal in terms of section 44 of the High Court [Chapter 7:06] against
the judgment granting respondents bail on 24 March 2011 be and is hereby
refused against 1st and 2nd respondents but granted
against 3rd respondent only.
Criminal Division, Attorney General's
Office, applicant's
legal practitioners
Cheda & Partners, R. Ndlovu & Partners,
Phulu & Ncube, respondents' legal practitioners
