Noting of appeal suspends payment of fine: ConCourt

The Constitutional Court (Concourt) yesterday clarified that the noting of an appeal by fined convicts automatically suspends the payment of such penalties.

CHARLES LAITON

The court ruled that an individual sentenced to a fine was entitled to pay bail pending appeal in terms of Section 63 (b) (i) of the Criminal Procedure and Evidence Act.

Senior Harare lawyer Tendai Biti told the full ConCourt bench headed by Deputy Chief Justice Luke Malaba that in practice, it had been the trend that once a person was convicted in the magistrates’ court and sentenced to pay a fine, such a convict would be forced to pay the fine despite noting an appeal against both conviction and sentence.

In his remarks, echoed by Justice Bharat Patel, Justice Paddington Garwe said: “If that is the practice, then it is wrong. The law is very clear on that position. The payment of a fine can be suspended by an application for bail pending appeal.”

In his submissions, Biti, who was representing Jealous Makombe, said the clarified position, would assist the magistrates in making an informed decision on fined convicts once they filed appeals before them.

The court heard on June 10, 2014, Makombe appeared before a Murehwa magistrate facing allegations of domestic violence and was eventually convicted after a lengthy trial.

Makombe was then sentenced to eight months in custody or to pay a $420 fine, of which $120 was for restitution, and was given up to the end of the same month to pay both the fine and restitution.
“Dissatisfied with the outcome of the court proceedings, I exercised my right to appeal as enshrined in Section 60 of the Act . . . And having noted an appeal, the clerk of court insisted that the fine be paid despite noting of my appeal,” he said in his affidavit filed by Biti.

“My legal practitioners of record (Biti) wrote several correspondences to the resident magistrate asserting the correct position regarding whether or not the fine was enforceable in the light of the appeal, to which they confirmed that the fine was payable notwithstanding the noting of an appeal.

“The chief magistrate also confirmed the position that the fine was still payable despite the noting of an appeal.”

Justice Malaba also advised Biti to approach the magistrates’ court to test the law, saying the ConCourt would have made a determination if the lower court had denied his client bail pending appeal after being ordered to pay a fine.

“If the applicant had applied for bail seeking appeal after being fined and his application declined by the magistrate, then his rights would have been infringed. Go to the magistrates’ court and apply for bail because at the moment, we are being asked to act on supposition,” Justice Malaba said.

In his closing submissions, Biti said he was grateful to the court for clarifying the position to which the Deputy Chief Justice said: “We have enlightened you and you have enlightened us . . . By consent, the matter is removed from the roll.”