The Attorney-General v John Sanders Spencer and Savvas Georgiou

The two respondents were convicted in the regional court on a joint charge of attempted extortion and sentenced to five years' imprisonment with labour, half of which was conditionally suspended. They were granted bail by the High Court pending their appeal noted on 5 June 1998, with conditions including reporting twice weekly at Avondale Police Station. The first respondent was a South African citizen ordinarily resident in Louis Trichardt who had entered Zimbabwe on 29 June 1997 and allegedly committed the offence on 1 July 1997. The second respondent was a Zimbabwean national living in Bindura. When the appeal was set down for hearing on 18 May 1999, both respondents had breached their bail conditions. The second respondent had fled the jurisdiction and did not intend to return. The first respondent was failing to report to police and his whereabouts were unknown. On 21 May 1999, despite both respondents being in default, the High Court directed the State to argue the merits. The High Court upheld the first respondent's appeal and set aside his conviction, noted that the second respondent's appeal had lapsed for want of prosecution, but nonetheless purported to exercise review powers to set aside his conviction and sentence as well. The Attorney-General sought leave to appeal under s 13(1) of the Supreme Court Act.

• Whether the High Court erred in hearing appeals where appellants were fugitives from justice or in breach of bail conditions
• Whether a person who has fled the jurisdiction or is in hiding can invoke the court's appellate jurisdiction
• Whether proceedings in the regional court were susceptible to automatic review where the accused had been defended by a legal practitioner
• What the appropriate consequences are when an appellant is in contempt of bail conditions and fails to appear for the appeal hearing

The appeal was allowed. The order of the High Court was set aside and substituted with: "The appeal is struck off the roll."

The binding legal principles established are: (1) A fugitive from justice - one who has deliberately put himself beyond the reach of the law by fleeing the jurisdiction or going into hiding - is denied the protection of the law and cannot invoke the court's jurisdiction to hear an appeal. (2) The well-established principle that a person seeking to establish rights in a court must come with clean hands applies in the criminal appellate context. (3) Where an appellant is in contempt of bail conditions set by the court, has no appearance before the court, and his whereabouts are unknown with no explanation for the disobedience, the court cannot exercise its discretion in the appellant's favour to hear the appeal. (4) Until such a person is found and makes effort to purge the contempt of the bail order, he has no right to obtain relief from the court. (5) Where information points to the probability that an appellant has unlawfully left the jurisdiction prior to the hearing or is in hiding, he is deemed to be a fugitive from justice. (6) Proceedings in the regional court where the accused was defended by a legal practitioner are not automatically reviewable unless specifically requested within the time prescribed by s 57 of the Magistrate's Court Act.

The Court noted that it expressed no opinion on the merits of the appeals. The Court observed that whether the High Court was correct or not in quashing the convictions was not a relevant consideration, underscoring that by their conduct neither respondent was deserving of any relief. The Court also observed that to allow fugitives from justice to invoke the court's jurisdiction "would be to stultify the process of the law."

This case establishes important principles in Zimbabwean criminal appellate procedure regarding the rights of appellants who breach bail conditions or become fugitives from justice. It affirms the clean hands doctrine in the criminal appeal context and clarifies that courts should not exercise their discretion to hear appeals where appellants are in contempt of court orders or have fled the jurisdiction. The case also clarifies the limitations on the High Court's review powers where proceedings are not automatically reviewable under the Magistrate's Court Act. The judgment reinforces that persons who set themselves in defiance of the law and judicial process are not entitled to invoke the protection and remedies of the courts.