Bail
Application
MATHONSI
J: The
applicant is a police detective based at CID Law and Order section in
Kwekwe. He was convicted about 9 years ago on 30 August 2007 of
culpable homicide by the Regional Court in Gweru and sentenced to 6
years imprisonment of which 2 years imprisonment was suspended on
condition of future good behavior.
The
applicant noted an appeal against both conviction and sentence on 4
September 2007. After noting the appeal he launched an application
for bail pending appeal on 18 September 2007 which the State conceded
resulting in this court admitting him to bail pending appeal by
consent on 3 October 2007.
It
is not clear what happened after that but on 20 March 2016, almost 9
years later, the Registrar of this court advised on the demise of
that appeal by reason of failure to pay for the transcription of the
record. He wrote:
“You
noted an appeal against conviction/sentence. Despite noting the
appeal you have failed or neglected to pay for the preparation of the
record in terms of Rule 22(2) of the Supreme Court (Magistrates
Court) (Criminal Appeals) Rules.
The
appeal is accordingly deemed abandoned and is hereby dismissed as
failure to comply with Rule 22(2) of the above mentioned rules has
invalidated the noting of the appeal in terms of Rule 22(4).”
With
that the record was returned to the Magistrates Court in Gweru for
execution of the sentence.
The
applicant says he never saw the letter from the Registrar until he
was arrested pursuant to a warrant of arrest issued on 26 April 2016.
He was picked up thereafter and is currently detained at Whawha
Prison in Gweru having commenced serving his sentence.
On
6 May 2016 the applicant filed an application for reinstatement of
the appeal against conviction and sentence which application is yet
to be determined. There is a story in that application told by both
the applicant and his legal practitioner, Josiniah Maupa as to how
the prosecution of the appeal failed including the sickness and the
eventual death of Maupa's personal assistant assigned the
responsibility of conveying the file to another law firm of the
applicant's choice in terms of his instructions, which is really
not the subject of the present inquiry. For our purposes, it is noted
that an application for reinstatement of the appeal has been noted
and that prior to the dismissal of the appeal in terms of the appeal
rules, the State had conceded that it had prospects of success.
The
applicant has now come to court seeking his admission to bail pending
the hearing of his application for reinstatement of the appeal and
the subsequent appeal if the application is successful.
Now
the State has swung round to oppose the application. The only ground
for opposition is that the application for reinstatement has not been
determined and as such the application is incompetent given that
there is no appeal pending.
What
happened is that a police raid at House number 48 Simon Mazorodze
Road Athlone, Gweru by a squad of four police detectives from CID
Kwekwe on 8 January 2004 at about 1300hours, went horribly wrong. The
police officers were looking for a dangerous armed robber who was
known to be armed with three guns including a machine gun. When
raiding the house the officers had corked their weapons in readiness.
During
the course of the operation, the applicant was assigned to guard some
of the occupants of the house gathered by the swimming pool who
included the 12 year old victim, as a search of the house was being
conducted. He had his service pistol under his armpit when it
accidentally discharged fatally wounding the 12 year old boy. He was
charged with culpable homicide, convicted and sentenced aforesaid.
It is that conviction and sentence which he is contesting in the
appeal court.
The
main State witness was Angela Ncube, the wife of the suspected armed
robber who confirmed that her husband was on the run. Although
emotionally charged that witness confirmed the facts I have outlined
above. In my view, even if the conviction is upheld, it would be
extremely difficult to justify the sentence that was imposed for what
was clearly an unfortunate shooting by a police officer in the bona
fide
execution of his duties. There is no doubt therefore that the appeal
has bright prospects of success.
I
have to decide however whether an application for bail pending the
reinstatement of an appeal dismissed in terms of rule 22(4) of the
Supreme Court (Magistrates Court) (Criminal Appeals) Rules, 1979 is
competent.
Mr
Mabaudhi
who is advancing the argument that it is incompetent, has not
directed me to any authority to that effect.
In
terms of rules 22(2) and (4);
“2.
The applicant shall, at the time of the noting of an appeal in terms
of subrule (1) or within such period thereof, not exceeding five
days, as the clerk of the court may allow, deposit with the clerk of
the court the costs as estimated by the clerk of the court of one
certified copy of the record in the case concerned;
Provided
the clerk of the court may, in lieu of such deposit, accept a written
undertaking by the appellant or his legal representative for the
payment of such cost immediately after it has been determined.
3.----.
4.
Any failure to comply with the provisions of subrule (2) or (3) or
any undertaking made in terms of the proviso to subrule (2) shall
invalidate the noting of an appeal.
Provided
that a judge of the Supreme Court may give leave for a fresh appeal
to be noted.”
It
is not clear how the applicant lost his appeal but what is clear is
that it was invalidated in terms of the foregoing rules, which rules
allow a judge to give leave for a fresh appeal to be noted. The
applicant has already made an approach to the court in that regard
and a decision is yet to be made.
Section
123(1)(b)(iii) of the Criminal Procedure and Evidence Act [Chapter
9:07] provides:
“Subject
to this section, a person may be admitted to bail or have his
conditions of bail altered in the case of a person who has been
convicted by a magistrates court and who applies for bail pending the
determination of an application for leave to appeal or for an
extension of time within which to apply for such leave; by a judge of
the High Court or by any magistrate within whose jurisdiction he is
in custody.”
So
a judge may admit to bail a person who has applied for leave to
appeal or for an extension of time during which to appeal.
I
have already said that rule 22(4) reposes upon a judge the power to
grant leave to file a fresh appeal in the case of an appeal that has
been invalidated by failure to pay for the record of proceedings. It
must follow therefore that such an application for leave or for
reinstatement whichever way one decides to call it, falls squarely
within the ambit of section 123(1)(b)(iii) of the Criminal Procedure
and Evidence Act, as being one of the instances where bail can be
granted.
The
approach taken by the State that it is incompetent to seek bail
pending leave to reinstate an appeal is not only simplistic, it also
overlooks the clear provisions of the Act. I conclude therefore that
it is indeed competent to make such a bail application and that I am
empowered to grant it.
As
that was the only basis for opposing bail, it follows that the
applicant has made a case for the relief that he seeks. In fact there
is merit in the application because there are prospects of success on
appeal.
The
courts would not want to appear to impede police officers in the
execution of their duties by assessing their conduct with a
magnifying glass of high power. The business of policing a society
infested with dangerous criminals that Zimbabwe has become, is
already onerous as it is without the courts complicating it.
Mistakes
do happen all the time, and must be penalized as mistakes. At the
same time I am sure the courts would want to strike a balance that
will ensure that police officers are able to discharge their duties
without the shackles of armchair critics.
In
the result, it is ordered that:
1.
The applicant be and is hereby admitted to bail pending the outcome
of the application for reinstatement of the appeal against conviction
and sentence, and if the application is successful, the determination
of the appeal itself, on the following conditions.
(a)
He deposits an amount of US$100-00 with the registrar of the High
Court, Bulawayo.
(b)
He continues to reside at ZRP Main Camp, Kwekwe until both the
application for reinstatement of appeal and the subsequent appeal are
finalized.
Dube-Tachiona
& Tsvangirai,
applicant's legal practitioners
National
Prosecuting Authority,
respondent's legal practitioners
