S v SAWADYE 2016 (2) ZLR 249 (H)

Flynote

Criminal procedure: " c bail " pending appeal " necessary to have record of proceedings of trial court and reasons for judgment " where record of proceedings cannot be found, it needs to be reconstructed by the State and appellant " duty of court to promote justice dispensation and ensure justice system was not brought into disrepute

Criminal procedure: " record " trial record lost " how to be reconstructed

Headnote

The applicant had been convicted of armed robbery, attempted murder and a firearms offence in October 2005 and sentenced to an effective term of 28 years' imprisonment. He successfully applied for condonation of late noting of appeal in January 2010 and in the same month filed grounds of appeal. Over six years later, in May 2016, he applied for bail pending appeal. He filed this application without including the necessary judgment from his criminal trial and record of proceedings. This was because the responsible court authorities had for all that period been unable to locate the judgment or record of proceedings " despite saying they had "frantically" tried to do so. Accordingly, at the High Court's direction further searches for the record had been urgently carried out and these resulted in the record which had been before the judge who granted condonation of late noting of appeal being found.

Held, that granting condonation of late noting of appeal did not in itself entitle an appellant to bail pending appeal as he needed to satisfy the court that the interests of justice would not be endangered by his release on bail.

Held, further, that the record of proceedings and judgment of the trial court were necessary for proper consideration of an application for bail pending appeal.

Held, further, that where the record is incomplete, destroyed or lost, the State and the accused have a duty to try to reconstruct the record, by obtaining depositions from the accused and witnesses who gave evidence at the trial as to the evidence they gave. Thereafter the presiding magistrate, in consultation with the State and accused, would certify the reconstructed record.

Held, further, that the applicant had the right in terms of s 70(4) and (5) of the Constitution to be given a copy of the record within a reasonable time, once he had paid for it, and have his appeal determined.

Held, further, that the record being found following the court's intervention did not translate into automatic resolution of the defective bail application, and the appellant elected to withdraw the application as presently framed. It was, however, the duty of the court to promote justice dispensation and ensure that the judicial system was not brought into disrepute.

Held, further, that the applicant, who was not legally represented, should be granted leave to prosecute the appeal in person.

Held, further, that the facts of the application presented a serious indictment of the criminal justice delivery system. Directions would be given to ensure that when the applicant filed a fresh application for bail pending appeal with the necessary record and judgment attached, it would be dealt with timeously.