Zarika Umali v The State

The applicant was convicted by the magistrates court sitting at Karoi of attempted murder as defined in s 47 as read with s 189(b) of the Criminal Law (Codification and Reform) Act [Chapter 9:23]. He was sentenced to 4 years imprisonment of which 2 years was suspended for 5 years on the usual conditions of good behaviour. The applicant appealed against both conviction and sentence to the High Court. The High Court heard the appeal on 5 September 2022 and delivered an ex tempore judgment dismissing the appeal in its entirety. The applicant's legal representative then made an oral application for leave to appeal to the Supreme Court against the conviction. The applicant had been on bail pending the determination of the appeal but was not present at the hearing of the appeal.

• Whether an application for leave to appeal to the Supreme Court could properly be made when the appellant was not present in court
• Whether the application for leave to appeal was premature given that the appellant's bail had automatically terminated upon dismissal of the appeal and he had not regulated his status
• Whether there is a requirement for an appellant who is legally represented to be present at the hearing of an appeal in criminal matters
• Whether the court had inherent power to regulate its own proceedings in relation to the procedural irregularity

The application for leave to appeal to the Supreme Court was struck off the roll. The Registrar was directed to avail a copy of the judgment to the Law Society of Zimbabwe for distribution to all law firms to enable legal practitioners to ensure that their clients (appellants or respondents in criminal matters) are present in Court at the hearing of such appeals.

An application for leave to appeal to the Supreme Court is a fresh proceeding distinct from the appeal itself, not a continuation of the appeal. The court becomes functus officio once judgment on the appeal is rendered. In criminal matters, an appellant must be properly before the court to institute an application for leave to appeal, and this requires the appellant's presence, particularly where the appellant's status has changed following dismissal of the appeal and automatic termination of bail. The court has inherent power to regulate its own proceedings to ensure procedural propriety in criminal appeals.

The court made several non-binding observations: (1) There is a gap in the law as there is no equivalent to s 194(1) and (2) of the Criminal Procedure and Evidence Act [Chapter 9:07] requiring an accused's presence at appeal hearings, and the lawmaker should consider closing this loophole. (2) To preserve the integrity of the criminal justice system, appropriate statutory provisions should be enacted regarding appellants' presence at appeal hearings. (3) Had the court which admitted the applicant to bail pending appeal included a condition requiring the applicant's presence at the hearing of the appeal, the present situation would not have arisen. (4) Court orders for bail pending appeal should be part of the appeal record, similar to orders for leave to appeal out of time. (5) The Registrar could couch notices of hearing to require even legally represented appellants to be present at the hearing of appeals.

This case is significant in Zimbabwean criminal procedure as it addresses the procedural requirements for applications for leave to appeal in criminal matters, particularly the necessity for an appellant to be present when making such an application. The judgment identifies important gaps in the law regarding the presence of accused persons at appeal hearings and makes recommendations for legislative reform. It establishes that an application for leave to appeal is a distinct proceeding from the appeal itself, requiring proper procedural compliance. The court's directive to the Registrar to circulate the judgment to all law firms demonstrates the precedential importance of ensuring appellants' presence at criminal appeal hearings. The judgment also reinforces the court's inherent power to regulate its own proceedings in the face of legislative gaps.