Tawanda Sibanda v The State

The applicant was convicted and sentenced by the Harare Regional Court on 18 September 2013 on counts 7, 8 and 10. He noted an appeal against conviction and sentence with the High Court. Pending determination of the appeal, the applicant applied for bail under case number B 907/13, which was dismissed by Justice Chatukuta. During the bail hearing, Mr E. Mavuto (counsel for the respondent/State) made certain utterances to the effect that the applicant had prospects of success on appeal in respect of counts 7, 8 and 10. Based on these utterances, the applicant brought a chamber application in terms of section 35 of the High Court Act seeking an order upholding the appeal and quashing the conviction and sentence in respect of those counts, alleging that the Attorney-General had made a concession.

• Whether a chamber application in terms of section 35 of the High Court Act [Cap 7:06] can be granted based on alleged verbal concessions made by counsel during a bail hearing
• Whether section 35 of the High Court Act requires formal notice to the Registrar of the High Court from the Attorney-General before a conviction can be quashed in chambers
• Whether comments made during bail proceedings regarding prospects of success on appeal constitute a formal concession under section 35

The chamber application was dismissed.

An application in terms of section 35 of the High Court Act [Cap 7:06] can only be made where the Attorney-General has given formal notice to the Registrar of the High Court stating that he does not support the conviction. Verbal utterances made by counsel for the State during bail proceedings, suggesting that an applicant has prospects of success on appeal, do not constitute a concession under section 35 and cannot form the basis for a chamber application to quash a conviction without hearing the appeal proper.

The court observed that when a bail application is dismissed, the judge does not decide on the merits of the case but only decides whether or not there are prospects of success on appeal. The merits of the case remain the domain of the Appeal Court. The court further observed that it appeared the applicant wanted the judge in chambers to hear the case as an Appeal Court, which is not proper procedure.

This case clarifies the procedural requirements for applications under section 35 of the High Court Act [Cap 7:06] in Zimbabwe. It establishes that verbal statements made by State counsel during bail proceedings do not constitute formal concessions for purposes of section 35, and that the statutory procedure requiring formal notice to the Registrar must be strictly followed. The case also distinguishes between comments made regarding prospects of success during bail proceedings and formal concessions on the merits of an appeal.