Source: ‘Bad handwriting stalling bail applications’ | The Herald November 8, 2017
Daniel Nemukuyu Senior Court Reporter
ATROCIOUS and illegible handwriting by some magistrates coupled with laxity on the part of prosecutors are the major reasons why bail applications unnecessarily drag in violation of the suspects’ right to liberty, the High Court has said. High Court judge Justice Herbert Chitapi also ruled against the practice requiring litigants in applications for bail pending appeal, to carry the burden of transcribing the lower court’s record, saying it was another hurdle that delays justice.
Justice Chitapi raised the concerns while handing down a judgment in which a Chegutu man, who was jailed 18 months for theft, Alfred Pensado, was seeking bail pending appeal. The judge said magistrates at lower courts should make the judges’ job easier by writing legible judgments to avoid situations where freedom requests are postponed to allow the transcription of a record of proceedings. The judge said some handwritings were shockingly bad.
“In fact, handwritings of some magistrates are so difficult to comprehend that the judge wonders whether the magistrate can read what he or she has written if asked to do so.
“In such instances, a typed transcript becomes necessary. I do not propose to chide magistrates to improve on their handwritings, save to just gently remind them that since most of the cases they deal with end up on review by High Court judges, it is important that despite the pressure they work under, they assist the court by writing legibly,” said the judge.
Justice Chitapi said bail rules provide for urgency in processing applications, but some State prosecutors do not treat bail applications with the urgency that they deserve, thereby prejudicing the applicants.
“I have observed that there is laxity by the State prosecutors in prioritising the disposal of bail applications despite the urgency which must be accorded to them as they are a process of respecting, promoting and protecting the rights of accused persons, including convicted persons who petition the court to assert their rights in relation to the grant of bail,” reads the judgment.
Justice Chitapi said prosecutors at times get it wrong by making it a requirement for applicants in matters of bail pending appeal to file a full transcribed record of proceedings at the High Court for the purposes of a bail application.
“My interpretation of the rules is that there is no legal requirement for an applicant seeking bail pending appeal to file the full transcript of proceedings in respect of which he or she appeals. The common thread in Rules 5.4 and 6.4 is that the prosecutor is the one who should elicit the comments of the magistrate who is presiding or has presided over the case.
“While it appears to have become a norm and practice to require that an applicant seeking bail pending appeal must file and serve the State with the record of proceedings, I have not been able to lay my hands on any rule which sanctions the provision of the full record or transcript of trial court proceedings as a condition precedent to the determination of a bail application pending appeal,” said Justice Chitapi.
The practice, Justice Chitapi said, results in delays in the disposal of bail applications and that it clearly defeats the legislative intent of treating bail matters with “utmost urgency”.
It is also costly for the bail seeker to pay for the transcription of the trial court record. Justice Chitapi said the same practice has resulted in a backlog of bail cases. “The bail court roll is unnecessarily clogged with postponed applications for bail pending appeal or appeals against the refusal of bail by magistrates. The reason given in the majority of cases is that the record in the court a quo (lower court) is awaited,” the court said.
Justice Chitapi said the High Court has, administratively, established a standalone permanent court that sits daily to deal with bail matters in the spirit of respecting human rights and freedoms.
“The High Court has embraced the duty by according recognition to the importance of the institution of bail. This is evidenced by the fact that administratively, the authorities have designated a special court to sit every day . . .” the judge said.
Justice Chitapi directed the Registrar of the High Court to serve copies of the judgments on the Chief Magistrate’s Office, National Prosecuting Authority and the Law Society of Zimbabwe to conscientise their officers on the need to adhere to the Bail Rules.
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