Robert Martin Gumbura v The State

The applicant was convicted by a regional magistrate on 4 October 2017 on four counts of rape and sentenced to 50 years imprisonment (with 10 years suspended, effective 40 years). He appealed to the High Court (CA 110/14), which on 5 August 2020 dismissed the appeal against conviction but reduced the sentence to 25 years (with 5 years suspended, effective 20 years). The applicant then sought leave to appeal to the Supreme Court, which was granted by Mushore J on 23 October 2020 in respect of conviction only (CON 319/20). The applicant noted his appeal to the Supreme Court on 5 November 2020 (SC 476/20) and filed an application for bail pending appeal on 6 November 2020 (B1892/20). He had also earlier filed an application for bail pending condonation (B1725/20) which was overtaken by events.

• Whether a High Court judge has jurisdiction to determine a bail pending appeal application where the appeal is against a High Court judgment on appeal
• Whether bail pending appeal to the Supreme Court should be determined by a Supreme Court judge rather than a High Court judge
• The proper procedure for determining prospects of success on appeal when a single High Court judge would have to review a High Court appeal judgment
• The interpretation and application of section 123(1)(a) of the Criminal Procedure and Evidence Act regarding bail pending appeal

The application for bail pending appeal (B1892/20) was struck off the roll. The court indicated that the applicant, if so advised, may direct the application for determination by a judge of the Supreme Court. The earlier application for bail pending condonation (B1725/20) had been overtaken by events.

Where an appeal has been noted to the Supreme Court against a High Court judgment on appeal, a bail pending appeal application should properly be determined by a judge of the Supreme Court rather than a High Court judge, as it would be procedurally improper for a single High Court judge to have to review and pronounce on the correctness of a High Court appeal judgment in order to assess prospects of success. Section 123(1)(a) of the Criminal Procedure and Evidence Act establishes that a Supreme Court judge is the first point of call (default position) for bail pending appeal to the Supreme Court, with High Court judges having residual jurisdiction.

Chitapi J made several important obiter observations: (1) He corrected an error in Mushore J's earlier order regarding where the notice of appeal should be filed, clarifying that it should be filed with the Registrar of the High Court (not Supreme Court) with a copy to the Supreme Court Registrar, in accordance with Rule 18(3) of the Supreme Court Rules. (2) He noted that section 44(4) of the High Court Act does not provide for ancillary or consequential orders upon granting leave to appeal to the Supreme Court. (3) He respectfully suggested that the law regarding leave to appeal should be revisited to provide clarity on procedure, noting it appears illogical that a single judge should review an appeal court decision and qualify the judgment. (4) He commented on the need to clear confusion within the applicant's misunderstanding of procedure to assert his liberty rights.

This case is significant in South African and Zimbabwean jurisprudence for clarifying the proper forum for bail pending appeal applications where the appeal is to the Supreme Court against a High Court appeal judgment. It highlights important procedural questions about judicial hierarchy and the appropriateness of a single judge reviewing collegial appeal court decisions. The judgment identifies gaps in existing legislation regarding leave to appeal procedures and suggests the need for legislative reform to clarify these procedural issues. It also provides guidance on the interpretation of section 123(1)(a) of the Criminal Procedure and Evidence Act regarding the default jurisdiction for bail pending appeal applications.