The 29 Glen View MDC-T activists accused of murdering a police officer in May last year were yesterday thrown a lifeline after High Court judge Justice Chinembiri Bhunu granted the group leave to appeal at the Supreme Court against his denial of bail, but warned of slim success.
In his judgment, Justice Bhunu said he had been persuaded by the State’s initial consent to bail for some of the activists which consent he said could amount to an exceptional circumstance.
“For that reason, I am of the view that a different court might come to a different conclusion in respect of this group of people,” Justice Bhunu said.
However, the judge warned there could be no prospects of success in the Supreme Court, given that the trial was still in progress at the High Court and that the face of the trial had also changed after an inspection in loco which was carried out last week.
Justice Bhunu further said he was constrained to remark that the application for seeking leave to appeal against his decision by the activists’ lawyers was essentially “chasing a moving target”.
“The complexion of the case keeps on changing. For instance when the court made its determination it had not gone for an inspection in loco which it has now done. It is envisaged that by the time the matter may come up for determination in the Supreme Court, the case might have adopted a completely different complexion from what obtains at the present moment,” Justice Bhunu said.
“This real eventuality might make it difficult, if not inappropriate, for the Supreme Court to determine the matter without reference to the trial court that will be seized with all the facts and evidence as at the time the Supreme Court comes to determine the matter. The application therefore to me seems like a person chasing his own shadow or a dog chasing its own tail,” he said.
Turning to the issue of the defence seeking leave to appeal on the grounds that they intended to challenge the constitutionality of section 117 (6) of the Criminal Law, the judge took a swipe at the intended application.
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“Although this submission is high-sounding to those not schooled in law, it is rather legally sterile, absurd and ridiculous, to say the least. The defence never raised the issue with this court and the court did not make any determination concerning the constitutionality or otherwise the section in question,” Justice Bhunu said.
The court said the application was therefore “amazing” and described it as “an exercise in futility” for the defence to seek leave to appeal on the basis of a ground of appeal which they never raised and was never determined by the same court.
