Douglas Sibanda v The State

### Preamble
1
HB 224/22
HCA (COND) 17/22
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DOUGLAS SIBANDA

Versus

THE STATE

IN THE HIGH COURT OF ZIMBABWE

DUBE-BANDA J

BULAWAYO 23 JUNE 2022

Application for condonation

In Chambers

DUBE-BANDA J:

This is a chamber application for condonation and extension of time within which to note an appeal against the decision of the Magistrates’ Court. This application was placed before me and I dismissed it. The applicant has written to the registrar requesting written reasons for that decision. These are they.

The applicant appeared before the Magistrates’ Court sitting in Gokwe. He was charged with the crime of attempted murder as defined in section 189 as read with section 47 of the Criminal Law (Codification and Reform) Act [Chapter 9:23] “Attempted murder”. It being alleged that on 1st October 2020 the applicant attempted to cause the death of the complainant by stabbing him with a knife on the right eye, struck him with the back of an axe several times on his legs and back and assaulted him with a knobkerrie all over the body.

The applicant pleaded not guilty. After a contested trial he was found guilty as charged and sentenced to eight years imprisonment of which three years imprisonment were suspended on the usual conditions. The applicant is aggrieved by both his conviction and sentence and hence this application.

In the event that he is successful in this application, the applicant intends to appeal against the decision of the Magistrates’ Court on the following grounds:

Ad conviction

The court a quo erred and misdirected itself at both fact and law, in convicting the appellant when there was clear evidence of the possibility of the appellant not having committed the offence having regard to what the complainant had said in his report statement to the Police.

In the alternative, the court a quo erred and misdirected itself in not giving due weight to the fact that complainant had implicated other people other than appellant, as the assailants and in the process erroneously convicted the appellant on the basis of a false or possibly false implication.

Further and in the alternative, the court a quo erred and misdirected itself in convicting the appellant of the offence of attempted murder, when medical evidence did not support such a verdict and also when such evidence was at variance with the evidence of state witnesses on the injuries sustained by the complainant.

Further and / or in the alternative the court a quo erred and misdirected itself in convicting appellant when there was a reasonable possibility of his defence and alibi being true, even more so in light of the contradictory and suspect evidence of the two state witnesses called by the state.

Ad sentence

The sentence of eight years with three suspended on the usual terms and conditions of good behaviour was so severe as to induce a great sense of shock, more so in view of the fact that the complainant and his wife grossly and clearly exaggerated the injuries that the complainant had sustained from the alleged assault.

Wherefore in the event that the conviction is upheld or that the charge is reduced to a lesser one this Honourable Court is hereby humbly urged to reduce the sentence to community service or a lesser term of imprisonment.

In an application for condonation the court has a discretion which it must exercise judiciously. The factors that the court must consider are well known. They, amongst other relevant factors are; the extent of non-compliance with the Rules of the Court; the explanation for non-compliance with the Rules of the Court; the balance of convenience; and the prospects of success.  See: Mhora v Mhora CCZ 5/22.

In Kodzwa v Secretary for Health & Anor 1999 (1) ZLR 313 (S) at 315 B-E, the court aptly indicated that:

The factors which the court should consider in determining an application for condonation are clearly set out in Herbstein & van Winsen's The Civil Practice of the Supreme Court of South Africa 4 ed by van Winsen, Cilliers and Loots at pp 897-898 as follows:

Condonation of the non-observance of the rules is by no means a mere formality. It is for the applicant to satisfy the court that there is sufficient cause to excuse him from compliance...

The court's power to grant relief should not be exercised arbitrarily and upon the mere asking, but with proper judicial discretion and upon sufficient and satisfactory grounds being shown by the applicant. In the determination whether sufficient cause has been shown, the basic principle is that the court has a discretion, to be exercised judicially upon a consideration of all facts, and in essence, it is a matter of fairness to both sides in which the court will endeavour to reach a conclusion that will be in the best interests of justice. The factors usually weighed by the court in considering applications for condonation … include the degree of non-compliance, the explanation for it, the importance of the case, the prospects of success, the respondent’s interest in the finality of his judgment, the convenience of the court and the avoidance of unnecessary delay in the administration of justice.

It is on the basis of these legal principles that this application for condonation and extension of time within which to note an appeal must be viewed and considered.

Extent and explanation for non-compliance with the Rules

The applicant was convicted and sentenced on 8 February 2022. His appeal should have been noted within 21 days calculated from the date of conviction and sentence. No appeal was filed. This application was filed on the 11th April 2022. The extent of the delay in vindicating the applicant’s rights is approximately one months. This is not an inordinate delay.

The explanation for the delay is provided in the affidavit deposed to by Mr Prayers Chitsa the applicant’s legal practitioner. The affidavit provides a full, detailed and accurate explanation for the delay. In its written response the respondent contends that the delay in noting the appeal was not wilful. I agree. The explanation proffered for the non-compliance with the rules of court is reasonable and satisfactory.

A finding that the delay in filing this application was not inordinate and that the explanation proffered for the non-compliance with the rules of court is reasonable and satisfactory is not dispositive of this matter. I still have to consider whether the intended appeal has prospects of success. This is what a litigant who does not file his appeal, for whatever reason, within the time allowed by the rules of court has to contend with.

Prospects of success

The test in this regard is simply whether there is a reasonable prospect of success in the envisaged appeal against the convictions and the resultant sentences, rather than whether the appeal against the convictions and resultant sentences ought to succeed. I now proceed to consider this question.

There is no case of mistaken identity in this matter. The evidence on record shows that the complainant and the applicant were known to each other prior to the events of the 8th October 2020. They had known each other since childhood. They are in fact related and reside in the same village. The assault occurred around 6 pm at sunset when it was still visible. The complainant testified that the injuries he sustained where caused by the applicant. The complainant’s wife testified that she had known the accused for a period of twenty years and that she saw him at the scene of crime. He is their uncle. When she arrived at the scene the complainant had already been assaulted and they were continuing to assault him. The applicant was holding a knife.  At the scene she saw a knobkerrie, an axe and a knife.  The applicant in his evidence admitted that he was present at the scene of crime.

The complainant testified that the applicant’s name is Polite Sibanda. He was actually surprised that in court he was referred to as Douglas Sibanda. The complainant’s wife testified that the applicant’s name is Polite Mudha Sibanda. She does not know the name Douglas. The trial court had no doubt that the applicant, whether his name is Polite Mudha Sibanda or Douglas Sibanda is the person who was at the scene of crime, and the person who with his accomplice caused the injuries sustained by the complainant.

On the evidence before it the trial court made a factual finding that it was the applicant and his accomplice who viciously assaulted the complainant with a knife, axe and knobkerrie. The assault resulted in the complainant sustaining serious injuries. The trial court found that the applicant and his accomplice intended to kill the complainant. They used dangerous weapons and deployed severe force in attacking the complainant. They directed the attacks on the vulnerable part of the body, i.e. the head and ribs. The complainant suffered permanent and life threatening injuries and was hospitalised for almost three weeks.

The evidence on record shows that at the police station the complainant implicated the applicant and his accomplice who is at large. No other people were implicated other than the applicant and his accomplice. The evidence of the witnesses and the contents of the medical report speak to the viciousness of the attack. There is no doubt about this. Therefore whosoever inflicted those injuries must have intended to cause the death of the complainant. On the evidence on record the trial court found that there was overwhelming evidence that the applicant and his accomplice were the attackers. This finding is unlikely to be vacated on appeal.

The trial court found that the applicant’s defence was not reasonably possibly true in the light of the overwhelming evidence against him. I agree. The decision to convict the applicant account for all the evidence.

I read the record of proceedings very carefully. In my assessment, it is unlikely that the appeal court will arrive at a different conclusion other than that of the trial court. In my view, the applicant has no good prospects of success on appeal against conviction.

Regarding sentence in the proposed notice of appeal it is stated that the sentence imposed on the applicant is too severe and induces a sense of shock. It is said a sentence of community service or a lesser term of imprisonment will meet the justice of the case. The law is clear that in every appeal against sentence the court hearing the appeal should be guided by the principle that punishment is pre-eminently a matter for the discretion of the trial court. An appeal court should be careful not to erode such discretion: hence the further principle that the sentence should only be altered if the discretion has not been judicially and properly exercised. The test is whether the sentence is vitiated by irregularity or misdirection or is disturbingly inappropriate. See: S v Rabie 1975(4) SA 855 (AD) at 857 E.

The trial court took into account the fact that the applicant stabbed the complainant on the right eye and struck him with an axe and knobkerrie on the head. The complainant sustained a raptured right eyeball, marked hyphena on the right eye, laceration on the left temporal region, deep laceration 5 x 4 cm on the occipital and blunt trauma on the scalp. The medical report and the evidence of the State witnesses speak to these injuries. Dangerous weapons were used on vulnerable parts of the body. The complainant sustained very serious and life-threatening injuries.  This cannot be a case for community service. There are no prospects of success on appeal against sentence.

Conclusion

I accept that in general these factors are not individually determinative, but must be weighed, one against the other. However I take the view that there would be cases where the lack of prospects of success would be decisive. Like in this case. In its written response the respondent contends that there are no prospects of success on appeal. The respondent further contended that even though there are no prospects of success on appeal the applicant must be given an opportunity to argue his case. I disagree. If there are no prospects of success on appeal then there is no case to argue on appeal. The absence of prospects of success on appeal is decisive in this matter. In this case I have confidence that I can shut the doors of the court in the face of the applicant without causing any prejudice to him. There is no point in clogging the appeal roll with unmeritorious appeals.

It was for these reasons that I dismissed this application.

Chitsa & Masvaya Law Chambers applicant’s legal practitioners

National Prosecuting Authority respondent’s legal practitioners