The Attorney-General sought to appeal against the grant of bail to the two respondents by the High Court, Bulawayo on 29 May 2002. A notice and grounds of appeal were filed with the Bulawayo High Court and served on respondents' counsel on 31 May 2002, two days after bail had been granted. However, through a communication breakdown between the Attorney-General's Bulawayo and Harare offices, the notice and grounds of appeal were not filed with the Supreme Court until 12 June 2002, beyond the required seven-day period. The respondents were subsequently released on the basis that no appeal had been heard within seven days of the suspension of the bail order. The Attorney-General then brought an urgent chamber application seeking condonation for late filing and an order suspending the release of the respondents.
The appeal was dismissed on the basis that it was not properly before the Court due to the Attorney-General's failure to obtain leave to appeal from the High Court as required by statute.
An appeal from the High Court to the Supreme Court against the granting or refusal of bail is not an appeal as of right. Leave to appeal must first be obtained from the presiding judge of the High Court in terms of section 121 of the Criminal Procedure and Evidence Act read with section 44(5) of the High Court Act. If such leave is refused, then a judge of the Supreme Court may entertain an application for leave to appeal. A Supreme Court judge in chambers has no jurisdiction under Rule 4 of the Supreme Court Rules to condone failure to comply with statutory requirements for appeals, as that Rule only empowers condonation of departures from the Court's own Rules, not statutory provisions.
The Court noted that while there might be some doubt as to whether the refusal or granting of bail is an interlocutory order or judgment in the usual sense, it is treated as such for the purposes of section 121 of the Criminal Procedure and Evidence Act as read with section 44(5) of the High Court Act. The Court also observed that the application was improperly styled as an "Urgent Court Application" when it should have been a chamber application to a single judge rather than a court application to a bench of three judges, though the Court treated it as the parties intended.
This case clarifies the procedural requirements for appeals against bail decisions in Zimbabwe. It establishes that appeals against the granting or refusal of bail are not appeals as of right and require leave from either the court a quo or a Supreme Court judge. The case also delineates the limits of the Supreme Court's powers in chambers to condone procedural irregularities, holding that statutory requirements cannot be waived by judicial discretion under the Rules of Court. This has important implications for bail appeals and reinforces the time-sensitive nature of such proceedings, particularly the seven-day limitation period.