Lazarous Katewera v The State

### Preamble
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HH 672-18
B 1069/18
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LAZAROUS KATEWERA

versus

THE STATE

HIGH COURT OF ZIMBABWE

CHITAPI J

HARARE, 17 October, 2018

Bail Pending Appeal

Applicant in person

E. Nyazamba, for the respondent

CHITAPI J: The applicant applies for bail pending appeal. He was convicted on 8 counts of unlawful entry in aggravating circumstances as defined in s 131 (1) as read with s 131 (2) of the Criminal Law Codification & Reform Act, [Chapter 9:23]. The applicant was alleged to have acted with his 3 accomplices and broken into several residences where they stole property between the period 6 October, 2013 to 6 March, 2014. The applicant was sentenced to various terms of imprisonment by count with some counts made to run concurrently and in some counts with portions of imprisonment terms being suspended on conditions of good behaviour. The applicant is serving an effective 13 years imprisonment for all the counts. The applicant was sentenced on 14 December, 2014. The record of proceedings was referred to this court on automatic review in terms of s 57 of the Magistrates Court Act, [Chapter 7:10]. On 3 March, 2015 Tsanga J certified the proceedings as being in accordance with real and substantial justice.

The applicant and another co-accused Tendai Katewere were out of time in noting an appeal. They made application for condonation of failure to note their appeals timeously. I granted the applicant and his co-accused an extension to file their intended appeals out of time. I granted the application on 3 November 2017 under case No. Con 22/17.

The applicant and his co-accused noted their appeal on 23 November, 2017 within the extended time limit which I had granted. The appeal is pending under case No CA 742/17. On 25 July, 2018, the applicant filed this application for bail pending appeal. He attached a copy of the magistrate’s written record of proceedings. Unfortunately the magistrates’ hand writing is not very legible. The application suffered still born set downs on 31 July, 2018, 2 August, 2018, 6 August, 2018, 7 August, 2018, 10 August, 2018, 17 August 2018, 21 August, 2018 and 22 August, 2018. On all these dates the result endorsed on record is “S/R” meaning “State Response”. In other words the application was being postponed because the State prosecutor still had to file the State’s response. On 22 August, 2018 the application was postponed to 31 August, 2018 and the result slip endorsed by Ndewere J “for transcript of record.” In the interim the State’s response had been filed on 21 August, 2018 in which bail was opposed. On 31 August, 2018 the application was postponed to 7 September, 2018 with the presiding judge endorsing on the result slip. “Although SR has been filed, the record hasn’t been transcribed-Applicant indicates that Mr Nyazamba was asked to avail a transcribed record.” On 7 September, 2018 Mushore J presiding in bail court postponed the application to 11 September, 2018 at the instance of the applicant who requested that the application be postponed to that date.

On 11 September, 2018, I was now assigned to the bail court. I postponed the application to 12 September, 2018 because State counsel was not available. On 12 September, 2018, the applicant filed a written reply to the State’s response. I however could not deal with the application because I could not make out the magistrate’s handwriting much as I tried to strain my eyes. I must commend my sister Tsanga J for having been able to plough through the poor handwriting. I would however caution that the fact that Tsanga J was able to make out the handwriting should not be used as an excuse by the magistrate concerned to not improve on the handwriting so that it is easily readable. I then directed the Registrar to investigate why a transcript was not available despite requests having been made. I postponed the application to 24 September, 2018. Kudya J who stood in for me as I was attending a family bereavement postponed the application to 25 September, 2018. The transcript was finally availed and the application was argued on 28 September, 2018 following further postponements on 25 and 26 September, 2018.

I have detailed the path that this application traversed because it appears to me that revisions and improvements are necessary to be made to administrative measures which impact on the delays in having bail applications being delayed in their finalizations. In terms of Rule 8 of the High Court Bail Rules, the Registrar is enjoined to set down any bail application received by the Registrar’s office with “utmost urgency”. Implicit in the rule therefore is that the court or judge should treat and deal with bail application as a matter of urgency. Bail is an entitlement of a person who is in custody and subsequently appears in court. Such entitlement is given under s 117 of the Criminal procedure and Evidence Act, [Chapter 9:07]. Bail will only be denied if the court determines that it is in the interest of justice that the accused be held in custody. After conviction and sentence as in casu, bail ceases to be an entitlement but remains a right which the convict can pursues subject to the convict satisfying the court on a balance of probabilities that it is in the interests of justice to release such convict on bail. Whilst an un-convicted person is protected from continued detention under s 50 (b) of the Constitution, there is no similar protection granted to a convict after conviction and sentence. The fact that there is no specific provision in the constitution that entitles a convict to bail, the application should not be dealt with urgently. The application still remains a liberty issue and as much the wheels of justice should be sufficiently oiled to move with speed and dispose of such bail application speedily.

To dispose of a bail application pending appeal filed in July, 2018 in October, 2018, that is 4 months later speaks to some deep seated problems within the administrative set up and mechanisms for bringing such application to speedy finality. In this case, the issue causing the delay has been that of the non-availability of a transcribed record. From an administrative point of view, one must ask whether there are problems with availment of transcribed records timeously and if so, what can be done to improve the situation? Is a complete transcribed record a necessity in every case where a court is considering an application for bail pending appeal? I think not, because in my view, the reasons for judgment can be adequate to gauge prospects of success on appeal.  Perhaps, the rules should clearly spell out that in a bail application pending appeal, the applicant should provide the reasons for judgment. If this is provided for, then transcripts would only be required to be prepared for bail pending appeal purposes as an exception where the bail judge for good cause considers that a full transcript of proceedings should be filed for consideration in determining whether or not to grant bail pending appeal.  I note that as the rules presently stand, rule 5 (1) (e) of the High Court Bail rules does not speak to the requirements of the filing of any transcript by the applicant. Rule 5 (4) (b) speaks to the filing of a written comment by the magistrate who has presided or is presiding over a trial wherein bail is applied for.  From an administrative and procedural point of view, it is important to review what is happening on the ground. I have yet to come across a written comment by the magistrate as envisaged in r (5) (4) in an application for bail after conviction or during the course of a trial. One must ask whether it is possible to obtain such comments and if not what should happen. Does one revisit the rules and make it peremptory that the magistrate should comment on the bail application? There is in my view a lot of shortcomings which need addressing for the smooth disposition of bail applications pending appeal or the completion of a trial.

Reverting to the application on the merits, I have had the benefit of reading through the transcribed record of proceedings and the trial court’s judgment. I am not persuaded that the appeal enjoys outright prospects of success. I should express myself clearly that although I granted the applicant leave to appeal out of time and that in such applications prospects of success are a relevant consideration, it does not follow that bail pending appeal must necessarily be granted. I had the benefit of reading the judgment when I granted the leave to appeal out of time. I was of the view that the applicant was making valid attacks on the judgment when he challenged the admissibility of indications. Whether or not indications ought to have been admitted is a matter of  law or mixed fact and law. It appeared to be proper to allow that applicant be given an opportunity to argue the point. I also formed the view that the applicant could argue on sentence and that the sentence could be interfered with on appeal albeit slightly.

From the record, there was no evidence led against this particular witness to link him to the offences like possession of any stolen items. The indications which the trial court relied upon were not produced before the court and are not on record. I also considered the issue of indications from a different angle. The angle was to consider the evidence of the various complainants as regards what indications they witnessed the applicant making. The record shows one witness who testified that applicant and two of his co-accused came for and made indications. The details of how the indications were made, what the applicant in particular indicated was not solicited from the witness. The investigating officer’s evidence was just generalized and as to recoveries made there was no property that he recovered from the applicant. It was also accepted that the applicant stayed with the 1st accused his brother. This alone did not make him guilty of whatever offence his brother could have committed. The State counsel conceded that the evidence of indications was badly handled by the prosecutor and I daresay by the court. Indications are in the nature of confessions. Rules governing their admissibility must be strictly adhered to which was not done. The prospects of success of the applicant’s appeal therefore remain high.

There is need to consider the likelihood of abscondment. The State counsel did not suggest that the applicant is a flight risk. The applicant from the trial papers was said to be resident at 2425 Kubatana Street, Epworth. In the application, he has offered to stay at St Killian’s Mission, Rusape at Manana Village, Chief Makoni. I am inclined to admit grant the application provided that the applicant provides verifiable information on his place of abode pending appeal.

National Prosecuting Authority, respondent’s legal practitioners