S v Dikatholo (HB 83 of 2006) [2006] ZWBHC 83 (16 August 2006)
The court cannot make findings on whether the Regional Magistrate misdirected herself in refusing bail pending appeal because the record of proceedings is not available and the application does not attack the bail application findings.
Source-derived case information.
- Citation
- [2006] ZWBHC 83
- Parties
- Applicant: Kesegofetse Dikatholo; Respondent: The State
- Court
- Bulawayo High Court
- Jurisdiction
- Zimbabwe
- Case Number
- HB 83 of 2006
- Procedural Posture
- Criminal / Bail Pending Appeal
- Outcome
- Application struck from the roll
- Legal Topics
- Bail Pending Appeal, Fraud, Conviction, Sentence
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Kesegofetse Dikatholo
Applicant
The State
Respondent
Procedural Posture
Criminal / Bail Pending Appeal
Legal Issues
- 1 Whether the Regional Magistrate misdirected herself in refusing bail pending appeal
Ratio Decidendi
The court cannot make findings on whether the Regional Magistrate misdirected herself in refusing bail pending appeal because the record of proceedings is not available and the application does not attack the bail application findings.
Court Disposition
Application struck from the roll
Orders
- Application struck from the roll
Full Case Text
Judgment text and source record
1 paragraphs
Judgment No. 83/06 Case No. HCB 120/06 KESEGOFETSE DIKATHOLO Versus THE STATE IN THE HIGH COURT OF ZIMBABWE NDOU J BULAWAYO 17 AUGUST 2006 S S Mlaudzi, for applicant T Mkwananzi, with Dube, for the respondent Bail Pending Appeal NDOU J: The applicant seeks bail pending appeal against both conviction and sentence. The salient facts are that the applicant was convicted by a Regional Magistrate of fraud in that he received from the complainant BP110 000,00 after misrepresentation to him that he was selling a Mercedes Benz motor vehicle when in truth he had no such a vehicle. He was sentenced to seven (7) years imprisonment of which 2 years was suspended on conditions of good behaviour and restitution. After sentence the applicant made an unsuccessful application for bail. He now appeals against the Regional Magistrate’s refusal to grant him bail pending appeal. In such an application the approach is whether the Regional Magistrate misdirected herself when refusing the applicant bail pending appeal. In other words, the appeal should be directed at the Regional Magistrate’s judgment and finding in the bail application – S v Malunjwa HB3403. This issue was raised as a point in limine by Mr Mkwananzi, for the respondent. The applicant seeks my indulgence in this regard. Looking at the body of the application, it is clear that the applicant does not attack the Regional Magistrate’s findings in the bail application. Instead, he directed his appeal against HB 83/06 the Regional Magistrate’s alleged misdirections in respect of the conviction and the sentence. I would have considered the indulgence sought if I had the record of proceedings of the bail application before the Regional Magistrate. I, unfortunately, do not have such proceedings. In the circumstances, it is not possible for me to make findings on whether the regional Magistrate misdirected herself when refusing the applicant bail pending appeal. Accordingly, I strike the application from the roll. Samp Mlaudzi & Partners, applicant’s legal practitioners Criminal Division and the AttorneyGeneral’s Office, respondent’s legal practitioners