MUCHINERIPI v MINISTER OF JUSTICE, LEGAL AND PARLIAMENTARY AFFAIRS and Others (295 of 2025) [2025] ZWHHC 295 (6 May 2025)

4 HH 295-25 HCH 6716/23 TAPIWA MUCHINERIPI versus MINISTER OF JUSTICE, LEGAL AND PARLIAMENTARY AFFAIRS and THE PROSECUTOR-GENERAL OF ZIMBABWE and THE PARLIAMENT OF ZIMBABWE and THE ATTORNEY-GENERAL OF ZIMBABWE HIGH COURT OF ZIMBABWE TAKUVA J HARARE, 8 OCTOBER 2024 & 06 May 2025 Court application A Saunyama, for the applicant P Chibanda, for the first and 4th respondent S Hoko, for the 3rd respondent No appearance for the 2nd respondent TAKUVA J: This is a court application for a declarator. The applicant seeks the court to declare that: Section 121(8) of the Criminal Procedure and Evidence Act [Chapter 9: 07], limiting the right to appeal to the Supreme Court of Zimbabwe for bail in all criminal matters, is contrary to s 169(1) and s 69(3) of the Constitution of Zimbabwe Amendment (No.20) Act of 2013 and is therefore null and void.The Supreme Court of Zimbabwe has jurisdiction to hear appeals on bail for all matters including matters for which bail has been denied in the first instance by the magistrates Court. FACTS The applicant seeks a declaratory order to declaring that s 121(8) of the Criminal Procedure and Evidence Act, [Chapter 9:07] (“the Criminal Procedure and Evidence Act”), is contrary to section 169(1) and section 69(3) of the Constitution of Zimbabwe Amendment (No. 20) Act of 2013 (“the Constitution”), and hence it ought to be declared null and void.The applicant further seeks the court to declare that the Supreme Court of Zimbabwe has jurisdiction to hear and determine appeals relating to bail and should not be restricted to offenses provided in the Third and Ninth Schedules to the Criminal Procedure and Evidence Act. The first respondent opposed the application and the granting of the relief sought by the applicant on the grounds that the applicant lacks locus standi in judicio. On merits the respondent argued that there is rational behind the limitation on appeal on bails.ISSUES FOR DETERMINATION Whether the objection relating locus standi applies in the matter.Whether section 121(8) of the Criminal Procedure and Evidence Act violates section 56 in the Constitution.Whether the position of comparative jurisdiction has to be considered in the present matter. ANALYSIS Whether the objection relating locus standi applies in the matter. The first respondent makes an objection to the application, arguing that the applicant has failed to establish locus standi as prescribed under s 85 of the Constitution. The applicant brought the present application in two capacities, that is, in his individual capacity and in the public interest. The first respondent further avers that the applicant states that he has filed the application as a contribution to the public interest and in his capacity as a defence lawyer carrying out legal practice. Therefore, according to the first respondent, the applicant is not properly before the court, and he prays for the dismissal of the application.On the other hand, the applicant opposes the point in limine; he argues that he has locus standi based on s 85(1)(d) of the Constitution. Section 85(1) states that: “Any of the following persons, namely— any person acting in their own interests;any person acting on behalf of another person who cannot act for themselves;any person acting as a member, or in the interests, of a group or class of persons;any person acting in the public interest;any association acting in the interests of its members; is entitled to approach a court, alleging that a fundamental right or freedom enshrined in this Chapter has been, is being or is likely to be infringed, and the court may grant appropriate relief, including a declaration of rights and an award of compensation.” In M & Another v Minister of Justice, Legal & Parliamentary Affairs 2016 (2) 45 (C), it was held that s 85(1)(d) of the Constitution embodies a broad and generous approach to locus standi, and the purpose is to ensure effective protection to any public interest shown to have been or adversely affected by infringement of a fundamental right or freedom. It was also held that an applicant approaching the court under s 85(1)(d) does not need to show an infringement to a particular person as long as he or she is able to satisfy the court that the application is genuinely in the public interest.More so, in the case of Musa Kika v Minister of Justice and Others HH 264/21, Zhou J was of the view that in any event, ensuring compliance with the provisions of the Constitution is not only an entitlement but an obligation of every citizen. This gives the applicant locus standi to approach the court for enforcement of constitutional rights. Whether there is a violation of the rights is a matter for arguments on merits. In conclusion, the court found that the objection to locus standi of the applicant to approach the court was outspread and had to fail. Law that gives right to bail and gives Supreme Court jurisdiction to determine bail applications. Section 50(1) (d) read with s 69(3) of the Constitution [Amendment No 20] provides for the right to bail. Section 50(1) (d) provides that, “Any person who is arrested must be released unconditionally or on reasonable conditions, pending a charge or trial, unless there are compelling reasons justifying their continued detention”. Then s 69(3) of the Constitution provides as follows, “Every person has the right of access to the courts, or to some other tribunal or forum established by law for the resolution of any dispute.” More so, Section 169(1) of the Constitution provides that, “The Supreme Court is the final court of appeal for Zimbabwe, except in matters over which the Constitutional Court has jurisdiction.” Section 9(1) of the Supreme Court Act, [Chapter 7:13], also provides that, “The Supreme Court shall have jurisdiction to hear and determine an appeal in any criminal case from the judgment of any court or tribunal from which, in terms of any other enactment, an appeal lies to the Supreme Court.” The conclusion to be drawn is that the constitutional provisions above together with s 9(1) of the Supreme Court Act create a new procedural circumstance when dealing with appeal of bail. Whether section 121(8) of the Criminal Procedure and Evidence Act violates section 56 in the Constitution. Section 121(8) of the Criminal Procedure and Evidence Act stated that: “There shall be no appeal to a judge of the Supreme Court from a decision or order of a judge of the High Court in terms of paragraph (b) of subsection (2), unless the decision or order relates to the admission or refusal of admission to bail of a person charged with any offence referred to in—(a) para 10 of the Third Schedule; or (b) the Ninth Schedule in respect of which the Prosecutor-General has issued a certificate referred to in subsection (3b) of section thirty-two;” Applicant avers that the provision above violates the right to equality that is enshrined under s 56 of the Constitution. He avers that s 121(8) of the Criminal Procedure and Evidence Act is discriminatory in the sense that it restricts the supreme court to determining bail appeals from the High Court except in corruption, organized crimes, or other high crimes, and crimes provided under the Ninth Schedule. Offences under ninth schedule are as follows: bribery, corruption, money-laundering, unlawful possession and dealing in precious metals or precious stones, fraud and forgery stock theft involving a bovine or equine animal to mention but a few. In other offences, once the accused denied by the High Court, there is no further recourse at law, so that advantage accruing to high economic crime offenders only is discriminatory hence unconstitutional and violates the right to equality. The jurisdictional limit in Supreme Court imposed by the Criminal Procedure and Evidence Act to determine bail appeals over limited crimes is not justified there is no rational behind the limitation. It seems that the justification is rooted on seriousness of an offence. In my view what should be considered is the denial of liberty and not the nature of the crime. Whether the position of comparative jurisdiction had to be taken into account The applicant took the point that the jurisdiction of the Supreme Court over bail appeals has to be increased, like what South Africa had done, since Zimbabwe and South Africa use similar Roman Dutch law. In South Africa, bail is determined by lower courts in the first instance and then by superior courts, that is, the High Court and Supreme Court. The sister jurisdiction does not restrict its Supreme Court from determining certain bail appeals, unlike with Zimbabwe. Similarly, in Namibia, another Roman-Dutch jurisdiction which unexpectedly employs the Criminal Procedure Act, 51 of 1977 (“the CPA”) as amended by s 3 of the Criminal Procedure Amendment Act, 5 of 1991, bail appeals are not restricted to the High Court only. This is despite that the Namibian Constitution does not provide for a right to bail at all but only grants what is termed “a right to apply for bail. the Supreme Court of Namibia enjoys unfettered jurisdiction to determine appeals from the High Court which would have been heard in the Magistrates court in the first instance, Nghipunya v Minister of Justice [2022] NAHCMD 510 (14 October 2022); State v Gustavo [2022] NAHCMD 259 (24 May 2022) The position of comparative jurisdiction had to be taken into account to safeguard fairness among accused who apply for bail. In my view, s 121(8) of the Criminal Procedure and Evidence Act, inconsistent with the Constitution of Zimbabwe Amendment (No 20) as amended in that it is discriminatory in nature and violets the right to equality that is enshrined in the constitution under s 56 and 50(1) (d). it should also be noted that s 121(8) of the Criminal Procedure and Evidence Act [Chapter 9:07] was enacted before the advent of the current constitution that granted extensive rights to accused persons with a view to liberalise bail appeal procedures. DISPOSITION In the result, IT IS DECLARED THAT: Section 121(8) of the CRIMINAL PROCEDURE AND EVIDENCE ACT [Chapter 9:07], limiting the right to appeal to the Supreme Court of Zimbabwe for bail in all criminal matters, is contrary to s 69(1) and s 69(3) of the Constitution of Zimbabwe Amendment (No 20) Act of 2013 and is therefore null and void.The Supreme Court of Zimbabwe has jurisdiction to hear appeals on bail for all matters including matters for which bail has been denied in the first instance by the Magistrate Court. There shall be no order as to costs. Takuva J:………………………… Zimbabwe Human Rights NGO Forum, applicant’s legal practitioners Civil Division of The Attorney General, first respondent’s legal practitioners Chihambakwe, Mutizwa and Partners, third respondent’s legal practitioners Civil Division of The Attorney General, fourth respondent’s legal practitioners 4 HH 295-25 HCH 6716/23 4 HH 295-25 HCH 6716/23 TAPIWA MUCHINERIPI versus MINISTER OF JUSTICE, LEGAL AND PARLIAMENTARY AFFAIRS and THE PROSECUTOR-GENERAL OF ZIMBABWE and THE PARLIAMENT OF ZIMBABWE and THE ATTORNEY-GENERAL OF ZIMBABWE HIGH COURT OF ZIMBABWE TAKUVA J HARARE, 8 OCTOBER 2024 & 06 May 2025 Court application A Saunyama, for the applicant P Chibanda, for the first and 4th respondent S Hoko, for the 3rd respondent No appearance for the 2nd respondent TAKUVA J: This is a court application for a declarator. The applicant seeks the court to declare that: Section 121(8) of the Criminal Procedure and Evidence Act [Chapter 9: 07], limiting the right to appeal to the Supreme Court of Zimbabwe for bail in all criminal matters, is contrary to s 169(1) and s 69(3) of the Constitution of Zimbabwe Amendment (No.20) Act of 2013 and is therefore null and void. The Supreme Court of Zimbabwe has jurisdiction to hear appeals on bail for all matters including matters for which bail has been denied in the first instance by the magistrates Court. FACTS The applicant seeks a declaratory order to declaring that s 121(8) of the Criminal Procedure and Evidence Act, [Chapter 9:07] (“the Criminal Procedure and Evidence Act”), is contrary to section 169(1) and section 69(3) of the Constitution of Zimbabwe Amendment (No. 20) Act of 2013 (“the Constitution”), and hence it ought to be declared null and void. The applicant further seeks the court to declare that the Supreme Court of Zimbabwe has jurisdiction to hear and determine appeals relating to bail and should not be restricted to offenses provided in the Third and Ninth Schedules to the Criminal Procedure and Evidence Act. The first respondent opposed the application and the granting of the relief sought by the applicant on the grounds that the applicant lacks locus standi in judicio. On merits the respondent argued that there is rational behind the limitation on appeal on bails. ISSUES FOR DETERMINATION Whether the objection relating locus standi applies in the matter. Whether section 121(8) of the Criminal Procedure and Evidence Act violates section 56 in the Constitution. Whether the position of comparative jurisdiction has to be considered in the present matter. ANALYSIS Whether the objection relating locus standi applies in the matter. The first respondent makes an objection to the application, arguing that the applicant has failed to establish locus standi as prescribed under s 85 of the Constitution. The applicant brought the present application in two capacities, that is, in his individual capacity and in the public interest. The first respondent further avers that the applicant states that he has filed the application as a contribution to the public interest and in his capacity as a defence lawyer carrying out legal practice. Therefore, according to the first respondent, the applicant is not properly before the court, and he prays for the dismissal of the application. On the other hand, the applicant opposes the point in limine; he argues that he has locus standi based on s 85(1)(d) of the Constitution. Section 85(1) states that: “Any of the following persons, namely— any person acting in their own interests; any person acting on behalf of another person who cannot act for themselves; any person acting as a member, or in the interests, of a group or class of persons; any person acting in the public interest; any association acting in the interests of its members; is entitled to approach a court, alleging that a fundamental right or freedom enshrined in this Chapter has been, is being or is likely to be infringed, and the court may grant appropriate relief, including a declaration of rights and an award of compensation.” In M & Another v Minister of Justice, Legal & Parliamentary Affairs 2016 (2) 45 (C), it was held that s 85(1)(d) of the Constitution embodies a broad and generous approach to locus standi, and the purpose is to ensure effective protection to any public interest shown to have been or adversely affected by infringement of a fundamental right or freedom. It was also held that an applicant approaching the court under s 85(1)(d) does not need to show an infringement to a particular person as long as he or she is able to satisfy the court that the application is genuinely in the public interest. More so, in the case of Musa Kika v Minister of Justice and Others HH 264/21, Zhou J was of the view that in any event, ensuring compliance with the provisions of the Constitution is not only an entitlement but an obligation of every citizen. This gives the applicant locus standi to approach the court for enforcement of constitutional rights. Whether there is a violation of the rights is a matter for arguments on merits. In conclusion, the court found that the objection to locus standi of the applicant to approach the court was outspread and had to fail. Law that gives right to bail and gives Supreme Court jurisdiction to determine bail applications. Section 50(1) (d) read with s 69(3) of the Constitution [Amendment No 20] provides for the right to bail. Section 50(1) (d) provides that, “Any person who is arrested must be released unconditionally or on reasonable conditions, pending a charge or trial, unless there are compelling reasons justifying their continued detention”. Then s 69(3) of the Constitution provides as follows, “Every person has the right of access to the courts, or to some other tribunal or forum established by law for the resolution of any dispute.” More so, Section 169(1) of the Constitution provides that, “The Supreme Court is the final court of appeal for Zimbabwe, except in matters over which the Constitutional Court has jurisdiction.” Section 9(1) of the Supreme Court Act, [Chapter 7:13], also provides that, “The Supreme Court shall have jurisdiction to hear and determine an appeal in any criminal case from the judgment of any court or tribunal from which, in terms of any other enactment, an appeal lies to the Supreme Court.” The conclusion to be drawn is that the constitutional provisions above together with s 9(1) of the Supreme Court Act create a new procedural circumstance when dealing with appeal of bail. Whether section 121(8) of the Criminal Procedure and Evidence Act violates section 56 in the Constitution. Section 121(8) of the Criminal Procedure and Evidence Act stated that: “There shall be no appeal to a judge of the Supreme Court from a decision or order of a judge of the High Court in terms of paragraph (b) of subsection (2), unless the decision or order relates to the admission or refusal of admission to bail of a person charged with any offence referred to in—(a) para 10 of the Third Schedule; or (b) the Ninth Schedule in respect of which the Prosecutor-General has issued a certificate referred to in subsection (3b) of section thirty-two;” Applicant avers that the provision above violates the right to equality that is enshrined under s 56 of the Constitution. He avers that s 121(8) of the Criminal Procedure and Evidence Act is discriminatory in the sense that it restricts the supreme court to determining bail appeals from the High Court except in corruption, organized crimes, or other high crimes, and crimes provided under the Ninth Schedule. Offences under ninth schedule are as follows: bribery, corruption, money-laundering, unlawful possession and dealing in precious metals or precious stones, fraud and forgery stock theft involving a bovine or equine animal to mention but a few. In other offences, once the accused denied by the High Court, there is no further recourse at law, so that advantage accruing to high economic crime offenders only is discriminatory hence unconstitutional and violates the right to equality. The jurisdictional limit in Supreme Court imposed by the Criminal Procedure and Evidence Act to determine bail appeals over limited crimes is not justified there is no rational behind the limitation. It seems that the justification is rooted on seriousness of an offence. In my view what should be considered is the denial of liberty and not the nature of the crime. Whether the position of comparative jurisdiction had to be taken into account The applicant took the point that the jurisdiction of the Supreme Court over bail appeals has to be increased, like what South Africa had done, since Zimbabwe and South Africa use similar Roman Dutch law. In South Africa, bail is determined by lower courts in the first instance and then by superior courts, that is, the High Court and Supreme Court. The sister jurisdiction does not restrict its Supreme Court from determining certain bail appeals, unlike with Zimbabwe. Similarly, in Namibia, another Roman-Dutch jurisdiction which unexpectedly employs the Criminal Procedure Act, 51 of 1977 (“the CPA”) as amended by s 3 of the Criminal Procedure Amendment Act, 5 of 1991, bail appeals are not restricted to the High Court only. This is despite that the Namibian Constitution does not provide for a right to bail at all but only grants what is termed “a right to apply for bail. the Supreme Court of Namibia enjoys unfettered jurisdiction to determine appeals from the High Court which would have been heard in the Magistrates court in the first instance, Nghipunya v Minister of Justice [2022] NAHCMD 510 (14 October 2022); State v Gustavo [2022] NAHCMD 259 (24 May 2022) The position of comparative jurisdiction had to be taken into account to safeguard fairness among accused who apply for bail. In my view, s 121(8) of the Criminal Procedure and Evidence Act, inconsistent with the Constitution of Zimbabwe Amendment (No 20) as amended in that it is discriminatory in nature and violets the right to equality that is enshrined in the constitution under s 56 and 50(1) (d). it should also be noted that s 121(8) of the Criminal Procedure and Evidence Act [Chapter 9:07] was enacted before the advent of the current constitution that granted extensive rights to accused persons with a view to liberalise bail appeal procedures. DISPOSITION In the result, IT IS DECLARED THAT: Section 121(8) of the CRIMINAL PROCEDURE AND EVIDENCE ACT [Chapter 9:07], limiting the right to appeal to the Supreme Court of Zimbabwe for bail in all criminal matters, is contrary to s 69(1) and s 69(3) of the Constitution of Zimbabwe Amendment (No 20) Act of 2013 and is therefore null and void. The Supreme Court of Zimbabwe has jurisdiction to hear appeals on bail for all matters including matters for which bail has been denied in the first instance by the Magistrate Court. There shall be no order as to costs. Takuva J:………………………… Zimbabwe Human Rights NGO Forum, applicant’s legal practitioners Civil Division of The Attorney General, first respondent’s legal practitioners Chihambakwe, Mutizwa and Partners, third respondent’s legal practitioners Civil Division of The Attorney General, fourth respondent’s legal practitioners