The Prosecutor General of Zimbabwe v Lyle Smith

The respondent, Lyle Smith, was admitted to bail by the High Court on 14 July 2022. The respondent had been brought to Zimbabwe through an extradition process. The Prosecutor General applied for suspension of the bail order pending an appeal to the Supreme Court in terms of section 121(3) of the Criminal Procedure and Evidence Act. The complainant in the criminal matter had indicated that he was no longer interested in pressing charges. The respondent challenged the application on a preliminary point, arguing that the Certificate of Urgency was defective because it was signed by Mr T. Nyathi, a legal practitioner employed by the National Prosecuting Authority who had an interest in the matter.

• Whether a legal practitioner employed by the National Prosecuting Authority can validly sign a Certificate of Urgency in terms of Rule 60(4) and 60(6) of the High Court Rules 2021
• Whether the court should suspend the bail order pending appeal where there is a reasonable possibility that the interests of justice may be defeated by the release of the accused on bail
• Whether the risk of absconding justified suspension of bail where the respondent had been extradited and the complainant no longer wished to press charges

The application for suspension of bail was granted in terms of the draft order. The respondent's bail was suspended pending the determination of the appeal to the Supreme Court.

A legal practitioner from the same firm representing the applicant, or employed by the National Prosecuting Authority, may validly sign a Certificate of Urgency under Rule 60(4) of the High Court Rules 2021, though it is desirable where possible for a practitioner from a different firm to do so. Under section 121(3) of the Criminal Procedure and Evidence Act, bail may be suspended pending appeal where the applicant establishes that there is a reasonable possibility that the interests of justice may be defeated by the release of the accused on bail, particularly where the accused was extradited and there is a real risk of absconding with no alternative remedy available to the prosecution.

The court noted that while it is not prohibited for a legal practitioner from the same firm or employed by the prosecuting authority to sign a Certificate of Urgency, it is nevertheless desirable, where possible, for a legal practitioner from a different firm to execute the Certificate of Urgency. The court also observed that extradition is a lengthy and costly exercise, which influenced its assessment of the balance of convenience in favour of the prosecution.

This case clarifies the position in Zimbabwean law regarding who may sign a Certificate of Urgency, confirming that legal practitioners employed by the National Prosecuting Authority or from the same firm representing the applicant are not precluded from doing so under Rule 60(4) of the High Court Rules 2021. The case also demonstrates the application of section 121(3) of the Criminal Procedure and Evidence Act regarding suspension of bail pending appeal, particularly in extradition cases where the risk of absconding and lack of alternative remedies are key considerations.