This
matter was placed before me in chambers as an application for condonation and
extension of time within which to appeal from a decision of a judge of the High
Court. The decision refused leave to appeal to that court from a decision
of a magistrate discharging the respondents of a criminal charge at the close
of the case for the prosecution.
The
question arose as to whether there was any provision granting the Attorney
General the right to appeal.
The
decision on the question raised is that there is no statutory provision giving
a right of appeal from a decision of an intermediate Court of Appeal like the
High Court refusing leave to appeal to it from a decision of a subordinate
tribunal.
The
decision on the question is by a single judge sitting in chambers. It
became necessary to enter into the question for the purposes of determining
whether or not the proceeding in chambers was a proper application for
condonation and extension of time within which to appeal as claimed by the
Attorney General. The question whether there is a right to appeal should
ordinarily be decided by the Supreme Court constituted by a minimum of three
judges.
On
14 December 2009, a magistrate, acting in terms of ections 198(3) of the
Criminal Procedure and Evidence Act [Chapter 9:07], found the respondents not
guilty of the crime of contempt of court in contravention of section 182(1) of
the Criminal Law (Codification and Reform) Act [Chapter 9:23] with which they
had been charged. The magistrate had found, at the close of the case for
the prosecution, that there was no evidence on which a reasonable court acting
carefully, might properly convict the respondents of the offence charged or any
other offence of which they might be convicted on the same charge.
The
allegations against the respondents were that they acted in common purpose, and
unlawfully caused three accused persons to be released on bail with knowledge
of an order of a judge of the High Court prohibiting the release of the
accused. It was alleged that each or both of them intentionally impaired the
dignity, reputation or authority of the court.
The
first respondent is the legal practitioner who represented the three accused
persons in an application for bail before a judge of the High Court. Bail
was granted on 9 April 2009. The representative of the Attorney General
invoked the provisions of section 121(3) of the Criminal Procedure and Evidence
Act [Chapter 9:07] by notifying the judge, immediately after the decision
admitting the accused persons to bail, that he wished to appeal to a judge of
the Supreme Court against the decision.
Section
121(3) of the Criminal Procedure and Evidence Act [Chapter 9:07] provides that
once the notification of the wish to appeal is given to the judge, immediately
after the decision admitting an accused to bail, the decision is suspended for
a period of seven days. The Attorney General, or his representative, is
required to obtain leave to appeal from a judge of the High Court, or, if a
judge of that court refuses to grant leave, from a judge of the Supreme Court,
within the period of seven days. If leave to appeal is granted and the notice
of appeal filed within the seven days, the person admitted to bail remains in
custody until the appeal is determined. It is important to appreciate the fact
that, under section 121(a) of the Criminal Procedure and Evidence Act [Chapter
9:07], the Attorney General, or his representative, is not obliged to exercise
the right to appeal within seven days of the decision admitting an accused
person to bail being suspended. He or she should do so if he or she wants to
benefit from the effect of the suspension in terms of section 121(3) of the
Criminal Procedure and Evidence Act [Chapter 9:07].
The
Attorney General applied to a judge of the High Court for leave to appeal on 14
April 2009. The application was on a certificate of urgency because he
appreciated that the appeal to a judge of the Supreme Court had to be lodged
within seven days of the decision admitting the accused persons to
bail. No explanation was given for the decision not to apply for leave to
appeal soon after invocation of the provisions of section 121(3) of the
Criminal Procedure and Evidence Act [Chapter 9:07] on 9 April 2009. The
judge, who was not the judge who admitted the accused persons to bail, granted
leave to appeal on 17 April 2009. The first respondent went to the Supreme
Court that day and verified that no notice of appeal had been filed. Acting on
the basis, that leave to appeal had been granted after the expiry of seven days
and that no notice of appeal had been filed at the Supreme Court, the first
respondent approached the office of the Registrar of the High Court asking that
orders admitting the accused persons to bail be prepared.
The
second respondent was the clerk to the judge who granted leave to
appeal. She got the orders, which had already been signed, and handed them
to the first respondent. On the authority of the orders, bail was paid at
the Magistrates Court on behalf of the accused persons. They were released
from custody on 17 April 2009.
At
the trial of the respondents, the State witnesses accepted the respondents'
contention that the seven days expired on 16 April 2009. The prosecution
had alleged, in the charge, that the order granting leave to appeal
specifically directed that the order by which the accused persons were admitted
to bail was to be suspended until the appeal was determined. The copy of
the judgment showed that the learned judge simply confined himself to granting
leave to appeal. The learned judge must have been aware of the fact that his
powers were limited to granting leave to appeal only. The question whether
or not the accused persons remained in custody pending determination of the
appeal was pre-determined by the legislature in terms of section 121(3)(b)
of the Criminal Procedure and Evidence Act [Chapter 9:07]. The learned
judge must have understood that he could not alter that legal position by leave
to appeal granted at any time after the expiry of the seven days prescribed
under section 121(1)(a) of the Criminal Procedure and Evidence Act [Chapter
9:07].
A
judge who grants leave to appeal timeously does not have to order that the
accused person should remain in custody until the appeal is determined. He
or she does not have to order that the decision admitting an accused person to
bail is suspended by the granting of leave to appeal. The law itself makes
provision for the imposition of that disability on the accused person under section
121(3) of the Criminal Procedure and Evidence Act [Chapter 9:07].
The
learned magistrate was alive to the fact that contempt of court is a specific
intent offence. She was aware of the fact that section 121 of the Criminal
Procedure and Evidence Act [Chapter 9:07] required leave to appeal to be
granted within seven days after the date an accused is admitted to
bail. She took into account the concession by the State witness, who is a
prosecutor, that the period of seven days expired on 16 April 2009 without
leave to appeal having been granted. She also took into account the fact
that a wrong interpretation of the law could not justify a finding of intention
to impair the dignity, reputation or authority of the court.
The
learned magistrate found, on the facts, that in waiting until the expiry of the
period of seven days and acting to have the accused persons released from
custody on bail on 17 April 2009, the respondents could not be found by a
reasonable court, acting carefully on the evidence, to have had the intention
to impair the dignity, reputation or authority of the judge who granted leave
to appeal on 17 April. There was, according to her, no evidence to prove
intention as an essential element of the offence. She made the pertinent
observation of the fact that what was in issue, was whether or not, the time
limits prescribed by the relevant statute had been complied with, for the State
to have benefitted from the effect of section 121 of the Criminal Procedure and
Evidence Act [Chapter 9:07]. The learned magistrate even made the finding
that the notice of appeal to a judge of the Supreme Court had not been filed.
Applying
to the facts the principles of law enunciated in the cases of Attorney General v Bvuma & Anor 1987 (2) ZLR 96 (S); Attorney General v Mzizi 1991 (2) ZLR 321 (S); Attorney General v Tarwirei 1997 (2) ZLR 75 (S); and State v Tsvangirai and Others 2003 (2) ZLR 88 (H), the
learned magistrate concluded, at the close of the case for the prosecution,
that there was no evidence that the respondents committed the offence charged,
or any offence of which they might be convicted thereon, and returned a verdict
of not guilty.
Section
198(4)(b) of the Criminal Procedure and Evidence Act [Chapter 9:07] gives the
Attorney General, a conditional right to appeal to the High Court if he is
dissatisfied with a decision of a magistrate finding an accused not guilty of
an offence charged at the close of the case for the prosecution. He or she
must first obtain leave to appeal from a judge of that court. Leave may be
granted or refused. The effect of the restriction is that a right of
appeal is not available unless leave to appeal is granted.
The
application for leave to appeal was made to a judge of the High Court eight
months after the decision of the Magistrates Court. On 28 October 2010, a
judge of the High Court refused leave to appeal on the ground that there were
no prospects of success on appeal.
The
Attorney General was not immediately perturbed by the decision.
Eleven
months after the decision by the learned judge denying leave to appeal, the
laggard representative of the Attorney General made what is called an
application for condonation and extension of time within which to appeal
against the decision of the judge of the High Court.
Counsel for the applicant suggested
that the jurisdiction for entertaining the application was to be found under Rule
19(1) of the Rules of the Supreme Court 1964.
Counsel
for the respondents argued that the Rule applied to cases in which the High
Court would have exercised jurisdiction and a right to appeal to the Supreme
Court lay with leave of a judge of that court, or, if refused, with leave of a
judge of the Supreme Court.
Rule
19(1) of the Rules of the Supreme Court 1964 provides that:
“(1)
A person who has been refused leave to appeal by a judge of the High Court may,
within ten days of the date when leave to appeal was refused, or within fifteen
days of conviction, whichever is the later date, apply to a judge for leave to
appeal.”
Rule
19(1) of the Supreme Court 1964 falls under Part IV of the Rules which provides,
under Rule 16, that provisions of that Part shall apply to “criminal appeals
from the High Court.”
Rule
16 limits the application of Rule 19(1) of the Supreme Court 1964 to the
application for leave to appeal in respect of appeals from decisions of the
High Court in criminal matters, where that court would have been exercising its
own jurisdiction. Rule 19(1) is clearly concerned with refusal of leave to
appeal against a conviction by the High Court. The right to appeal in
respect to which leave must be applied for is given to the person convicted of
a criminal offence by the High Court. Refusal of leave to appeal to the
High Court cannot be said to be a decision in a criminal matter before the High
Court. The refusal of leave has the effect of preventing the proceeding
coming into existence in the High Court.
Rule
19(1) of the Rules of the Supreme Court cannot provide justification for the
purported application for condonation and extension of time within which to
appeal against refusal by a judge of the High Court to grant leave to the
Attorney General to appeal to that court against a decision of a Magistrates
Court in terms of section 198(3) of the Criminal Procedure and Evidence Act [Chapter
9:07].
It
is necessary to consider the meaning of the terms of the provisions of section 198(4)(b)
of the Criminal Procedure and Evidence Act [Chapter 9:07] and take into account
the purpose of the section.
The
consideration leaves no doubt in the mind that giving a right to appeal from a
decision of a judge of the High Court refusing leave to appeal to that court
from a decision of a Magistrates Court made in terms of section 198(3) of the
Criminal Procedure and Evidence Act [Chapter 9:07], would defeat the whole
object of giving a judge of the High Court the power to decide on the merits
whether to grant or refuse leave to appeal to that court.
When
a right to appeal is given, subject to the condition that leave to appeal be
granted, it is clear that the intention of the legislature is that some
tribunal must have the power to decide, whether the right to appeal should be
given or not. The object is to protect the process of the appellate court
from frivolous and unnecessary appeals by means of an exercise of a screening
power. A right to appeal may be given by statute, or conditionally, as a
result of a grant of leave to appeal. Where the granting of leave is the
chosen method of acquiring a right to appeal, unless leave is granted the right
does not arise.
The
legislature gave, in terms of section 198(4)(b) of the Criminal Procedure and
Evidence Act [Chapter 9:07], the power to consent to or refuse the right to
appeal against a decision of the Magistrates Court under section 198(3) of the
Criminal Procedure and Evidence Act [Chapter 9:07] to a judge of the High Court. No
other tribunal has that power. The matter was entrusted and intended to be
entrusted to his or her discretion. It is for the judge of the High Court
alone, in the exercise of his or her jurisdiction, to look at the merits of the
application for leave to appeal to that court and decide in the proper exercise
of discretion to grant or refuse leave to appeal. In this case, the
decision itself, refusing leave, was well within the judge's discretion and the
reason that the appeal lacked all merit a wholly proper basis for the decision.
Once
a decision has been made in terms of a provision to that effect, refusing leave
to appeal to a court, that should end the matter and there is no appeal from
that court. The clear intention of the legislature, which the Supreme
Court must respect, is that the decision of a judge of the High Court refusing
leave to appeal to that court in the exercise of jurisdiction must be
final. No legislative enactment provides for an appeal against a decision
of a tribunal entrusted with the power to grant or refuse leave to appeal.
What
is ordinarily provided for is an application for leave to appeal to the court
that has the jurisdiction to hear and determine the appeal, if leave is refused
by the court against whose decision the appeal is to lie. It is always a
judge of the court to which the appeal lies who has the last say on the
matter. In this case, it was a judge of the High Court who had the first
and last say on the issue of leave to appeal. An application is not an appeal. It
is, therefore, a principle in our legal system that no right of appeal lies to
an ultimate Court of Appeal against a decision of an intermediate Court of
Appeal refusing leave to appeal to it in the exercise of its jurisdiction on
the merits.
The
rationale for not providing for a right of appeal against refusal of leave to
appeal is obvious.
The
object of giving the tribunal power to grant or refuse leave to appeal is to
enable it to control what the court should hear and, ipso facto,
prevent frivolous and unnecessary appeals that would taint the
process of the intermediate appellate court. That object would be defeated
if the Supreme Court would also enter the question whether, on the merits, the
case was fit for appeal to the intermediate appellate court. The
introduction of the “filter” requiring leave would be pointless. There
would, in fact, be two appeals in every case in which in the ordinary course of
things there would be one.
The
intention is that there should be one decision to grant or refuse leave in
respect of one right of appeal. If a right to appeal against the refusal
of leave were given, there would be nothing to stop a party against whom leave
to appeal has been granted also appealing against the decision granting leave. This
would be the case because there is no provision in any enactment to the effect
that no appeal would lie from a decision of a judge of the High Court granting
leave to appeal. The Supreme Court would find itself having to again
entertain the same question, whether the intermediate court of appeal should
have granted or refused leave to appeal. That would reduce the provisions
of section 198(4) of the Criminal Procedure and Evidence Act [Chapter 9:07] to
an absurdity.
It
is considerations of judicial comity which should operate in this aspect.
The
principles to be applied in the determination of the question whether an appeal
lies against a decision of an intermediate court of appeal refusing leave to
appeal to it, were enunciated by LORD HALSBURY LC as far back as 1891 in Lane v Esdaile (1891) AC 210…,. The decision has been
hailed as the “foundation stone” (to borrow the words of BAYDA CJS in Morgan v Saskatchewan (1991) 82 D.L.R. (4th) 443….,.)
for these principles.
The
application of the principles has the effect of eliminating a potential source
of delay in the finalization of litigation. The decision has been followed
in other English common law jurisdictions.
The
principles were expressly adopted by the Supreme Court of Canada in Canadian Utilities Ltd v Deputy M.N.R. for Customs & Excise (1964) 41 D.L.R. (2d) 429
and Ernewein v M.E.I. (1980) 103 D.L.R. (3d) I. The judgments of the
English Court of Appeal in Aden Refinery Co. Ltd v Ugland
Management Co. Ltd [1986] 3 W.L.R. 949 and Richards v Richards [1989] 3 W.L.R. 748 confirm that the
principles enunciated in Lane v Esdaile (1891)
AC 210 are still the law in England.
In
Canadian Utilities Ltd v Deputy M.N.R. for Customs & Excise (1964) 41 D.L.R. (2d) 429
CARTWRIGHT J…, said:
“It
appears to me to have been consistently held in our Courts and in the Courts of
England that where a statute grants a right of appeal conditionally upon leave
to appeal being granted by a specified tribunal there is no appeal from the
decision of that tribunal to refuse leave, provided that the tribunal has not
mistakenly declined jurisdiction but has reached a decision on the merits of
the application.”
In
Ernewein v M.E.I.
(1980) 103 D.L.R. (3d) I, LASKIN
CJC, writing for the majority…, said:
“The
scheme of appellate review by intermediate appellate Courts, whose decisions,
in turn, are appealable here, distinguishes between cases where the appeal to
them is as of right and where the appeal cannot come on to be heard unless
leave to appeal is previously obtained. In the one set of cases, the
intermediate appellate Court cannot refuse to hear the appeals but in the other
set it is empowered to screen out those cases which it decides not to hear on
any of the issues sought to be brought forward for hearing on the
merits. In my view, an ultimate appellate Court, like the Supreme Court of
Canada, should respect this differentiation prescribed for Courts below and
should recognize that the legislative policy which supports the differentiation
is to leave it to the intermediate appellate Court to decide, where leave to
appeal is a precondition of an appeal to it on the merits, whether it will
entertain it. If it decides that it will not, that should end the matter
so far as any further appeal here is concerned unless there is more commanding
language than is found in ss 31(3) and 41(1) to warrant this Court's
interference with what is a discretionary determination to refuse to allow an
appeal to proceed.”
At
page 8, the learned Chief Justice of Canada makes the observation that:
“The
logic of LORD HALSBURY'S observation that if a refusal to give leave to appeal
is appealable so must be the granting of leave is unassailable. Indeed,
what it points up is an obliteration of the distinction in the operation of an
intermediate appellate Court between cases which it chooses to hear on the
merits and those in which it either refuses to grant leave or those in which,
leave having been granted, an appeal is sought to be taken further from the
refusal or grant, as the case may be.”
In
Richards v Richards [1989] 3 W.L.R. 748…, LORD DONALDSON OF
LYMINGTON M.R. said:
“In
my judgment, what Lane v Esdaile decided, and all that it decided, was that
where it is provided that an appeal shall lie by leave of a particular court or
courts, neither the grant nor refusal of leave is an appealable decision.”
In
re Housing of the Working Classes Act 1890 Ex parte Stevenson
(1892) 1QB 609…, LORD ESHER M.R. said:
“Wherever
power is given to a legal authority to grant or refuse leave to appeal, the
decision of that authority is, from the very nature of the thing, final and
conclusive and without appeal, unless an appeal from it is expressly given.”
Applying
the principles in the determination of the question raised by this application,
it is clear that there is no legislative enactment which gives the Attorney
General a right of appeal to the Supreme Court from the refusal by a judge of
the High Court of leave to appeal to that Court from a decision of a magistrate
finding an accused not guilty of a criminal offence at the close of the case
for the prosecution. The effect of a refusal by a judge of the High Court
of leave to appeal to that court renders the decision by the Magistrates Court
final. There was no legal basis for the purported application for condonation
and extension of time within which to appeal.
A
party cannot seek condonation for non-compliance with a rule that does not
exist or one the party is under no duty to obey by reason of his or her
peculiar circumstances. There cannot be an extension of time within which
to appeal where there is no right to appeal.
It
is a principle of law that procedures should be used for the purposes for which
they were created.
The
matter is struck off the roll with costs.
