Attorney General v Madamombe & Anor (HH 141 of 2004) [2004] ZWHHC 141 (30 June 2004)

HH 141­2004 CRB 4245/04 THE ATTORNEY GENERAL versus CANAAN MADAMOMBE and JUDITH TSAMBA N. O. HIGH COURT OF ZIMBABWE UCHENA J HARARE Criminal Review UCHENA J: The applicant in this case is the Attorney-General. He applies for the review of the 2nd respondent’s decision to release the 1st respondent on bail inspite of her having been notified in terms of section 121(3) that the Attorney General wished to appeal against her granting the 1st respondent bail. On the 14th April 2004 the first respondent applied for bail before the 2nd respondent. The second respondent granted the 1st respondent‘s application. The Attorney General’s representative notified the magistrate of the Attorney General’s intention to appeal. Inspite of this notification the magistrate authorised the 1st respondent to pay bail and be released as no appeal had been noted. The applicant’s counsel submitted this application on the 17th June 2004. The applicant did not strictly comply with the rules of court for a review application. However as this involves a criminal matter I will review the case in terms of section 29(4) of the High Court Act [Chapter 7:06]. Section 121(3) of the Criminal Procedure and Evidence Act [Chapter 9:07] as amended by section 2 of the Criminal Procedure and Evidence Amendment Act No. 8 of 1997 provides as follows: “A decision by a judge or magistrate to admit a person to bail shall be suspended if immediately after the decision the judge or magistrate is notified that the Attorney General or his representative wishes to appeal against the decision, and the decision shall thereupon be suspended, and the person shall remain in custody until a) b) If the Attorney General or his representative does not appeal in terms of subsection (1) – i) he notifies the judge or magistrate that he has decided not to persue the appeal; or the expiry of seven days whichever is the sooner; or ii) If the Attorney General or his representative appeals in terms of subsection (1) the appeal is determined.” (emphasis added) HH 141­2004 CRB 4245/04 My understanding of the provisions of section 121(3) is as follows: The magistrate’s or judge’s decision to grant bail is suspended if the Attorney General or his representative soon after the decision to grant bail is announced notifies the magistrate or judge of his intention to appeal against the granting of bail. The magistrate in this case allowed the 1st respondent to pay bail and be released because the Attorney General had not yet appealed. That was a misconception of the provisions of section 121(3) which specifically states that “the decision shall thereupon be suspended and the person shall remain in custody until …….” This means once the Attorney General announces his intention to appeal the accused person cannot be released on bail until one of the following occurs: 1. The Attorney General abandons the appeal and notifies the judge or magistrate that he no longer intends to pursue the appeal or The period of seven days expires without any appeal being noted or If the Attorney General notes the appeal, the appeal has been 2. 3. determined. It should be noted that what suspends the decision to admit a person to bail is the notification of the Attorney General’s intention to appeal and not the appeal itself. Therefore the magistrate in this case misdirected herself when she ordered the 1st respondent to pay bail inspite of her having been notified of the Attorney-General’s intention to appeal against her decision. The magistrate’s order that the 1st respondent pay bail inspite of the Attorney General’s notice to appeal has to be set aside. The Attorney-General’s Office did not act timeously. The decision to be reviewed is that authorising the 1st respondent to pay bail inspite of the notice of intention to appeal. The decision to grant bail is not subject to this review. The seven days within which the Attorney General should have decided whether or not to appeal have lapsed. The applicant does not in his application indicate whether or not he has appealed. It is not clear what will happen on the setting aside of the magistrate’s order but that must be left to the operation of the law as provided by section 121(3)(a) and (b). The magistrate’s decision authorising the 1st respondent to pay bail inspite of her being notified of the Attorney General’s intention to appeal is set aside. Mavangira J, agrees:………………………. HH 141­2004 CRB 4245/04