Bail Pending Appeal (Zimbabwe)

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Cases in Magistrates Court

Where a person has been convicted of any of the offences specified in the Third Schedule, a magistrate may only admit a person to bail or alter his bail conditions if the Attorney-General has given his consent. Proviso (iii) to s 123(1) CPEA. The specified offences are:

The specified offences in Part 1 of the Third Schedule are:

  • murder where it was committed in certain specified circumstances such as where it was premeditated;
  • rape or aggravated indecent assault where it was committed in certain specified circumstances such as multiple rape of a victim;
  • robbery where it was committed in certain specified circumstances such as where firearms were used;
  • assault or indecent assault of a child under 16 involving the infliction of grievous bodily harm;
  • kidnapping or unlawful detention involving the infliction of grievous bodily harm ;
  • contravening the following sections of CLCA: 20 (treason); 21 (concealing treason); 22 (subverting constitutional government); 23 (insurgency, banditry, sabotage or terrorism); 24 (recruiting or training insurgents, bandits, saboteurs or terrorists); 25 (training as insurgent, bandit, saboteur or terrorist); 26 (supplying weapons to insurgents, bandits, saboteurs or terrorists); 27 (possessing weapons for insurgency, banditry, sabotage or terrorism) or 29 (harbouring, concealing or failing to report insurgent, bandit, saboteur or terrorist);
  • An offence in Part II of the Third Schedule where the accused has previously been convicted of any offence specified in the Third Schedule or has allegedly committed such offence whilst on bail in respect of an offence in the Third Schedule.

The offences specified in Part II to the Third Schedule are:

  • treason;
  • murder in circumstances other than those specified in Part I;
  • attempted murder involving the infliction of grievous bodily harm;
  • malicious damage to property involving arson or conspiracy, incitement or attempt to commit this offence;
  • theft of a motor vehicle or conspiracy, incitement or attempt to commit this offence;
  • any offence relating to dealing in or smuggling of ammunition, firearms, explosives or armaments or the possession of an automatic or semi-automatic firearm, explosives or armaments or conspiracy, incitement or attempt to commit this offence;
  • any offence where the Attorney-General has notified the magistrate of his intention to indict the case direct to the High Court.

Where a person who has been convicted for an offence, other than one of these specified ones, applies for bail, the magistrate who has convicted him has the discretion to grant bail pending the appeal.

Cases in High Court

The High Court can grant bail pending appeal to the Supreme Court where it has convicted and sentenced X or has sentenced him after the case has been referred to it for sentence: s 123(1)(a) CPEA.

If a person, who has been convicted of one of the offences specified in the Eighth Schedule, applies to the High Court for bail pending appeal, the Minister of Home Affairs is entitled to certify that, in his opinion, public security will be prejudiced if X is admitted to bail. The certificate must specify the grounds upon which the Minister has formed his opinion that public security will be so prejudiced. Wherever possible, a copy of this certificate must be served on the person applying for bail before his application for bail is heard: s 123(2), (2a), (2b), (2c) and (2d) [112(2), (2a), (2b)] CPEA.

The effect of this certification is to cast the onus on the person applying for bail pending appeal to satisfy the court that, despite what is stated in the certificate, he should be granted bail; bail may only be granted by the judge if this onus is discharged.

Criteria

The main factors which are weighed in the balance are the interrelated factors of the prospects on appeal and whether the granting of bail will jeopardize the interests of the administration of justice.

In Kilpin 1978 RLR 282 (A) the appeal court pointed out that the principles governing the granting of bail after conviction were different to those governing the granting of bail before conviction. Where the person has not yet been convicted he is still presumed innocent and the courts will lean in favour of granting him liberty before he is tried. On the other hand, where he has already been convicted, the presumption of innocence falls away. There are certain cases where bail pending appeal should not be granted, such as where the person has been convicted of an offence which almost invariably attracts a lengthy prison term and there are no reasonable prospects of an appeal against the lengthy prison term succeeding. The trial magistrate had thus been wrong simply to extend bail granted before trial to the post-trial stage where the person had pleaded guilty to such an offence.

In Williams 1980 ZLR 466 (A) the appeal court said that even after conviction the court should lean in favour of liberty if this would not endanger the interests of the administration of justice. The prospects of success on appeal must be balanced against the interests of the administration of justice. The less the chance of success on appeal the greater the chance there was of the convicted person absconding. But it was putting it too highly to say that bail should only be granted where there was a reasonable prospect of the appeal succeeding. On the other hand, in serious cases even where there was a reasonable prospect of success on appeal bail should sometimes be refused, notwithstanding that there is little danger of the convicted person absconding.

Where the evidence of guilt is overwhelming, there is no reasonable prospect of a successful appeal against conviction; but if there is room for a difference of opinion regarding conviction there would be a reasonable prospect on appeal. In Labuschagne S-21-03 the court that the mere fact that leave to appeal has been granted does not, per se, entitle a convicted person to be allowed out on bail. The onus of establishing that justice will not be endangered and that there is a reasonable prospect of success is upon the applicant. It is improper to allow people convicted of serious crimes to be walking in the streets instead of serving their sentences when the prospects of success are non-existent. Society would lose faith in the system and revolt. See also Benatar 1985 (2) ZLR 205 (H).

In deciding whether the administration of justice will be prejudiced if bail is granted the court will take into account the seriousness of the offence, the seriousness of the penalty imposed, whether the appeal is against conviction or only against sentence and the prospects of success on appeal. With a serious offence which normally attracts a substantial prison sentence, there will be a pronounced risk that the convicted person will flee from justice if released, especially if he has no reasonable chance of successfully appealing against conviction. There will be a very great risk of flight if X is only appealing against sentence and where the most he can hope for is that the prison sentence will be subject to some minor adjustment. Even where there is a reasonable prospect of success on appeal against such a conviction, the convicted person may not be inclined to take the chance of the appeal succeeding, but may take flight instead if he is released pending appeal. With less serious offences not attracting drastic penalties the position will be radically different.

In assessing the prospects of success on appeal the magistrate is obviously placed in a somewhat difficult position as, to a certain extent, he is being asked to come to a decision on the reliability of his conviction and/or sentence. He must try to assess this as objectively as possible.

It is however not sufficient to show reasonable prospects of success in of the appeal to be entitled to bail. In Manyange HH-1-03 the applicant was convicted of theft a motor vehicle. He applied for bail pending appeal. The State did not oppose the application, considering that the applicant had an arguable case. The Court held that in an application for bail pending appeal the presumption of innocence is inoperative, as the applicant is a convicted and sentenced offender. For his application to succeed, the applicant must show that there are positive reasons why bail should be granted. In the absence of positive grounds, bail should be denied. The mere fact that there are reasonable prospects of success on appeal or that the applicant has a reasonably arguable case does not entitle him to bail. He must show that in addition to his prospects of success on appeal, the interests of justice will not be endangered if he is granted bail. This the applicant had failed to do, and bail would be refused.

Further applications for bail

Even if bail has been refused by a court, a further application for bail can be made at subsequent remand proceedings if this application is based on new or different facts from the previous application: s 116 (1)(c) proviso (ii)].

The passage of time since the last application for bail can be a new fact arising after the last application. See Murambiwa S-62-92 and Aitken (2) S-168-92. The fact that the police have had sufficient time since the last application to investigate the case but have not been able to strengthen their case will be a factor which must be considered in the further application for bail. See Murambiwa and Aitken (2). In Stouyannides S-170-92 the court pointed out that where a considerable period of time has elapsed, the Attorney-General acts at his peril if he fails to put before the court specific facts strengthening the case over the period of time which has elapsed. This was confirmed Barros & Ors HH-110-02 where the judge held that a postponement of a trial is a change in circumstances entitling a court to reconsider the question of bail. Whether bail should in fact be granted will depend on the circumstances of the case in question, the length of the postponement and the nature of the charges.

If X previously had no money for bail but now has raised some, his lawyer can inform the court of this and request that bail now be granted.

Appeal against refusal of bail by High Court

In A-G v Mpofu & Anor S-50-02 the Supreme Court ruled that where a party wishes to appeal against an order of a judge of the High Court refusing bail, the leave of the judge must be sought. If leave is refused, a judge of the Supreme Court may entertain an application for leave to appeal. This is a statutory requirement, and failure to comply with it may not be condoned. See also Aitken 1992 (2) ZLR 84 (S).

Where a person convicted in the magistrates court makes his initial application for bail, not to the magistrate but to a judge of the High Court, an appeal still lies with leave to a judge of the Supreme Court: Dzawo1998 (1) ZLR 536 (S)

In Ncube 2001 (2) ZLR 556 (S) it was pointed out that the power of the Supreme Court to interfere with a decision of the High Court in a bail application is rather limited. It may only interfere where the judge a quo committed an irregularity or misdirection, or where the manner in which he exercised his discretion was so unreasonable as to vitiate the decision made.

Single Appeal against decision of bail by Magistrates

Where a person applies for bail in the magistrates court and the application is refused he is only entitled to a single appeal against this decision to the High Court. Section 121(8) of the Criminal Procedure and Evidence Act had removed the right of the person concerned who had appealed to a judge of the High Court against the bail decision of a magistrate to take the judge's decision, subject to leave, on appeal to a judge of the Supreme Court.

In Chiyangwa v AG & Ors S-1-04 it was held that there is only one appeal against the grant or refusal of bail by a judge or magistrate, no matter which party appeals. If a magistrate refuses bail and a judge of the High Court grants bail on appeal by the accused, that is the end of the matter. The Attorney-General has no right of appeal to the Supreme Court. See also AG v Lotriet & Ors 2001 (2) ZLR 168 (H)

However, an exception arises in respect of currency offences, as in the case of Attorney-General v Fundira S-33-04. In that case, the respondent, who was charged with currency offences, had been granted bail in the High Court. The Attorney-General immediately announced his intention of appealing and applied for leave to appeal. The judge refused leave, and within two days the Attorney-General applied to the Supreme Court for leave to appeal. The respondent argued that as the Attorney-General had not noted an appeal within 7 days, there was no appeal before the court and the respondent should be released. It was held no appeal lies to the Supreme Court from an order of a High Court judge sitting as an appeal judge in a bail application. However, there is an exception in respect of persons charged with currency offences: applications for bail in respect of those offences can commence in the magistrate's court, then proceed to the High Court and thereafter to the Supreme Court. No party is relieved of the requirement to obtain leave to appeal in a bail application, where the appeal is against the decision of a judge of the High Court. The Attorney-General's application, within 7 days, for leave to appeal constituted compliance with s 121 of the Criminal Procedure and Evidence Act. It cannot have been the intention of the legislature to require the Attorney-General to file the notice of appeal at a time when it was legally not possible to file such a notice of appeal, by reason of awaiting the outcome of his application for leave to appeal.

Where bail has been granted by a magistrate, and the state appeals, the High Court cannot substitute its own discretion for that of the magistrate in the absence of misdirection or irregularity: A-G v Rutu

Release from Police custody on Police Bail

One way to try to secure the immediate release of a client without having to wait for him to be brought to court is to seek to persuade the police to grant police bail. The police have the power to admit a person to bail without going through the courts in circumstances.

Who may grant police bail?

Only an assistant inspector or a person of higher rank or a policeman of any rank who is in charge of a police station may grant such bail.

When can police bail be granted?

In terms of s 132 CPEA police bail may be granted at times when a judicial officer is not available (e.g. in the evening or on a Sunday or a holiday). Such bail may only be granted for an offence which is not one of those specified in the Fifth Schedule.

The offences for which bail may not be granted by the police are:

  • Murder;
  • Rape or aggravated indecent assault;
  • Robbery;
  • Assault in which a dangerous injury is inflicted;
  • Malicious damage to property committed in aggravating circumstances;
  • Unlawful entry into premises committed in aggravating circumstances;
  • Theft, making off without payment, receiving stolen property, fraud or forgery if the amount or value involved exceeds $500 000
  • Any offence under any enactment relating to unlawful possession or dealing in precious metal or precious stones;
  • Contravening ss 20, 21, 22, 23, 24, 25, 26, 27 or 29 of the CLCA;
  • Any conspiracy, incitement or attempt to commit any of the above offences.

Amount of police bail

Bail may be granted in an amount which the officer granting it fixes.

The police may, in certain circumstances, be prepared to release the client under an assurance from his lawyer that the client will appear in court as specified by the police.

It is very helpful for the lawyer to take steps before going to see his client which will facilitate the release of his client from custody. If possible he should obtain from the spouse or relatives of the client the client's passport and national identity card and should take these with him when he goes to see his client in police custody. The identity card will verify the client's identity if the police are still doubtful that the client has given the correct identity particulars to them. By taking the client's passport, the lawyer is in a position to tender the surrender of the client's passport to try to facilitate his release. If the client's spouse or relatives are prepared to hand over cash for bail the lawyer should take this cash with him when he negotiates with the police for release of his client on bail. It is also useful for the lawyer to ascertain if there are any persons of substance who are prepared to stand surety for his client. If there is such an available surety this may help to persuade the police to release the client. If the police refuse to release the client, the lawyer, when he applies for bail in court, should obviously know how much his client can raise for bail, either himself or through friends and relatives. When possible, he should have willing sureties available.

As regards juveniles (i.e. persons under the age of eighteen years) there is a special provision in s 135 CPEA. Where the juvenile has committed a crime other than treason, murder or rape and the police would have the power to grant police bail to him, the police may instead:

  • release him without bail and warn him to appear in court at a specified time and place;
  • release him to the care of a person in whose custody he is and warn the custodian to make sure that the juvenile is to court at a specified time and place;
  • place him in a place of safety as defined in s 2 of the Children's Protection and Adoption Act, pending his appearance in court or until he is otherwise dealt with by the law.

(A judge or magistrate also has these same powers)

Where the police have arrested a person on the basis of an arrest warrant which has authorised his arrest on suspicion that he has committed a crime, he can still be released on police bail if the crime involved is one in respect of which police bail may be issued under s 132 CPEA. In terms of s 33(3) CPEA, an arrest warrant remains in effect until it is cancelled by the person who issued it or until it is executed. Thus after the warrant has been executed by arrest of the person named, the police have the normal powers to grant bail in such cases. Where, however, a warrant of arrest has been issued in order to bring a person before the court because he has failed to obey a summons or because he has breached bail conditions, then only the court which issued the warrant can revoke the warrant.

Where the client is facing grave charges and the case against him appears to be strong and thus the police had reasonable grounds for arresting the client and holding him for the period specified by law, it is poor strategy for the lawyer to adopt an aggressive approach to the police in an effort to try to secure his client's release from custody. Threats to take legal action against the police in these circumstances will hardly be helpful. The police will resist such efforts to force them to release the client and the behaviour of the lawyer will simply alienate and antagonise the police. The client's interests are far better served by seeking to engender a co-operative climate so that the lawyer can obtain full details of the case against his client so that he can prepare the defence case on the basis of full information.


See Zimbabwe Criminal Defense Manual