Criminal suspects risk having their bail applications dismissed, or at the very least struck off the roll, when neither the suspect nor, if they are legally represented, their lawyer attends the bail hearing without first getting the agreement of the Prosecutor General's office or the court, the High Court has said.
Justice Pisirayi Kwenda made the remarks when he removed from the roll the bail application of suspect Luckman Gunman Pondo, because of non-attendance by his lawyer without excuse, an action seen by the judge as an attempt to usurp the court's right to regulate bail proceedings and so allowing anarchy to prevail.
There was suspicion that the lawyers might have simply been trying to have the matter delayed so the next week's duty judge to hear bail applications would hear Pondo's; this is known as forum shopping.
"There is a growing tendency by litigants to circumvent the law in bail applications through conduct calculated to usurp the power of this court to protect and regulate bail proceedings with the result that anarchy prevails to the detriment of the good administration of justice," said Justice Kwenda.
"Such conduct if allowed to continue has the potential of derailing the bail system and destroy its credibility. This court's power to regulate and protect the credibility of its processes is inherent at common law and codified in the Constitution of Zimbabwe."
The ruling means that the hearing of bail applications can no longer be delayed when lawyers disappear from court without consulting first with the prosecution.
While Pondo's application was struck off the roll, the possibility now exists that it could be simply dismissed. If a matter is struck off it can be reinstated with the leave of the judge in the case. But if dismissed and a decision has been made, and that means it can only be heard on appeal to a higher court, the Supreme Court if it was dismissed in the High Court.
Justice Kwenda said any delay in the hearing of a bail application could only be in terms of a written agreement signed between the applicant and the Prosecutor-General's Office or by order of the court.
Under the Constitution, the Constitutional Court, the Supreme Court and the High Court have inherent power to protect and regulate their own process and to develop the common law or the customary law, taking into account the interests of justice and the provisions of the Constitution.
In this case, on April 16 this year, Pondo who faces a rape charge, filed a written application for bail pending trial. For charges of this level of violent crime, the bail application has to be made to the High Court at first instance. The bail application was set down on April 21 2021 as case number 14 on the roll for represented applications, that is for those who are legally represented.
Pondo was legally represented by Mudimu Law Chambers. Justice Kwenda was the judge presiding in the bail court that week. When the matter was called there was no appearance for Pondo so the judge gave an ex tempore judgment and ordered that the matter be removed from the roll.
Before the Gunman Pondo case was called, Justice Kwenda noticed that a few other matters involving represented persons had been called and there had been no appearance.
"I also noticed most cases showed a trend, discernible from the result sheet, in terms of which bail matters removed from the roll because lawyers representing the applicants failed to show up, were just being routinely reset at the lawyers' convenience without any questions being asked," he said.
"The result is that the lawyers concerned have staged a coup d'etat and have taken full control of court process and choose the sitting at which they want their matters to be heard."
Justice Kwenda said the pattern gave the impression that litigants can forum shop and impairs the dignity of the High Court and the credibility of bail processes by creating the erroneous perception that this court condones wayward behavior.
Justice Kwenda said orders removing matters from the roll are normally made in the presence of the litigants or their lawyers. He said the practice of removing bail matters from the roll had not complied with superior courts "Practice Direction 3/13" which makes it clear that a matter removed from the roll can be brought back but subject to compliance with the court's or judge's directions.