S v AITKEN 1992 (2) ZLR 84 (S)

Flynote

Criminal procedure — bail — appeal against refusal by High Court to grant bail — proper construction of s 44(5a) of the Criminal Procedure and Evidence Act [Chapter 59]

Interpretation of statutes — intention of legislature — approach to be adopted where legislature did not intend to use word to bear the meaning that it properly bears

Headnote

The word "interlocutory" in s 44(5a) of the High Court of Zimbabwe Amendment Act 1989 could not possibly have been intended to have its normal limited and technical meaning. It should therefore be given its widest possible meaning. It is to be construed to refer to any order made incidental to any stage between the inception and the conclusion of litigation, upon any incidental matters which does not finally determine the original dispute. This includes pre-trial orders, such as a decision relating to bail.

Previously there was an automatic right of appeal to the Supreme Court against a High Court decision regarding bail, but any appeal against conviction or sentence required leave to appeal. The amendment repealed the clause giving that automatic right of appeal against bail. The intention was not to remove a right of appeal against bail altogether, but to rationalise the right of appeal by requiring leave in all cases. The right given to appeal with leave against interlocutory orders therefore also included the right to appeal, with leave, against a refusal of bail.

The appeal court went on to say that even if it was wrong in ascribing this meaning to the word "interlocutory" it had to give effect to the intention

Gubbay JA

of the legislature. Where the legislature could not possibly have intended the word to signify what the word properly signifies, the court will modify its meaning and give it the meaning that the legislature intended. It will not allow the intention of the legislature to be nullified by the draftsman's unskilfulness or ignorance of the law.