DHLAMINI & ANOR v CO-MINISTERS OF HOME AFFAIRS & ORS 2010 (2) ZLR 25 (H)

Flynote

Criminal procedure - bail - appeal - by Attorney-General against grant of- appeal from High Court - seven day period within which to note appeal - does not include Saturdays, Sundays and public holidays

Headnote

The applicants were granted bail by the High Court; the Attorney-General immediately announced his intention of appealing against the grant of bail, and in terms of s 121(3) of the Criminal Procedure and Evidence Act [Chapter 9:07] (CP&EA), the release of the applicants was precluded for a period of seven days. Shortly afterwards, the Easter weekend intervened. As enjoined by s 121(1) of the Act, as read with s 44(5) of the High Court Act [Chapter 7:06], the Attorney-General filed an application for leave to appeal. This application was granted by the High Court 3 days later, and the appeal against the grant of bail was then filed with the Supreme Court on the same day. The issue then arose as to whether, in reckoning the seven day period referred to in s 121, weekends and public holidays were to be included or excluded.

Held, that s 44(5) of the High Court Act provides that, where a judge has made an interlocutory order or given an interlocutory judgment in relation to any criminal proceedings, the accused person or the Attorney-General may appeal to the Supreme Court against that interlocutory order or judgment. However, any such appeal is "subject to rules of court" and requires "the leave of a judge of the High Court". While it is very doubtful that the admission of a person to bail can properly be perceived as an interlocutory order or judgment, the refusal or grant of bail must be regarded as an interlocutory order or judgment "for the purposes of" s 121 of the CP&EA as read with s 44(5) of the High Court Act,

and the practical effect of these provisions is that where the Attorney- General wishes to appeal against an admission to bail he has to obtain the leave of a judge. The "rules of court" referred to in s 44(5) of the High Court Act must be construed as being the rules governing appeals against interlocutory orders and judgments in criminal proceedings as distinguished from the rules governing bail applications and bail appeals. In other words, the reference to "rules of court" in s 44(5) of the High Court Act has no direct bearing on the interpretation and application of s 121 of the CP&EA.

Held, further, that neither the CP&EA nor the Interpretation Act [Chapter 1:01] contain express guidance or assistance on how to compute the seven day period. Rule 6 of the Supreme Court of Zimbabwe (Bail) Rules 1991 (SI 290 of 1991) restates the stipulation that an appeal from the High Court against the grant of bail must be filed within seven days and then prescribes the specific procedure to be followed in noting such an appeal. Rule 3, in dealing with the reckoning of time, provides that a Saturday, Sunday or public holiday shall not be reckoned as part of such period. By contrast, r 3 of the High Court of Zimbabwe (Bail) Rules D 1991 (SI 109 of 1991) explicitly includes Saturdays, Sundays and public holidays as part of the seven day period for filing an appeal to the High Court. The Supreme Court (Bail) Rules were lawfully and procedurally enacted in terms of s 34 of the Supreme Court Act [Chapter 7:13]. To the extent that they are intra vires and consistent with that Act, they must be duly applied "for regulating all matters in relation to the proceedings of the Supreme Court" and "in relation to criminal cases, for carrying the criminal law, practice and procedure into effect". Rule 3 does not conflict with anything contained in s 121 of the CP&EA. Accordingly, the seven day period stipulated in s 121 must be reckoned as excluding Saturdays, Sundays and public holidays.