Shepherd Denhere v The State and O. Madzongachiso N.O.

### Preamble
1
HB 102/21
HC 380/21
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SHEPHERD DENHERE

Versus

THE STATE

And

O. MADZONGACHISO N.O.

IN THE HIGH COURT OF ZIMBABWE

DUBE-BANDA J

BULAWAYO 3 JUNE 2021 & 10 JUNE 2021

Unopposed Motion

G. Sengweni, for the applicant

1st and 2nd respondents in default

DUBE-BANDA J:  This application for condonation for the late filing of an application for review came before me in the unopposed motion court. Although served with this application, 1st and 2nd respondent did not file a notice of opposition. Thus this matter was set-down in the unopposed motion court.  The applicant seeks the following relief:

Condonation and extension of time within which to file review proceedings in the High Court be and is here by granted.

Applicant to file review proceedings in the High Court within 10 days of this order.

The background facts are that on 16 August 2016, applicant was convicted of the crime of culpable homicide arising from a road traffic accident. He was sentenced to pay a fine of $100.00, in default thereof 30 days imprisonment. He is currently undergoing another criminal trial again arising from a road traffic accident. Fearing that the 2016 previous conviction would be factored into the sentencing equation and attract him a heavy sentence, he has approached this court, for condonation to file an application for review and setting aside of the 2016 proceedings.

The law relating to applications for condonation is fairly settled in this jurisdiction. The question before this court is whether the applicant has met the requisites for the granting of the order sought. In an application for condonation, the court has a judicial discretion which it exercises by factoring into the equation the facts of the case and fairness to both parties.  In essence an application for condonation must be lodged without delay, and must provide a full, detailed and accurate explanation for it – the delay. It is well settled that in the main an application for condonation is required to meet two requisites of good cause, first establishing a reasonable and acceptable explanation for the delay and; second satisfying the court that there are reasonable prospects of success in the main application. See: Forestry Commission v Moyo1997 (1) ZLR 254 (S) and Balzer v Vries 2015 (2) NR 547 (SC); Bishi v Secretary for Education 1989(2) ZLR 240 H at 243B.

These factors are not individually determinative, but must be weighed, one against the other. There may be times when a slight delay and a good explanation may help to compensate for weak prospects of success; and strong prospects of success may tend to compensate for a long delay. See: Melane v Santam Insurance Co Ltd 1962 (4) SA 531 (A). There would also be cases where the prospects of success, a reasonable and acceptable explanation for the delay and the importance of the issues raised may compensate for a long delay. See: South African Poultry Association and Others v Minister of Trade and Industry and Others 2018 (1) NR 1 (SC).

In terms of rule 259 of the High Court Rules, 1971, an application for review must be instituted within eight weeks of the termination of the suit, action or proceeding in which the irregularity or illegality complained of is alleged to have occurred; provided that the court may for good cause shown extend the time. In casu, the applicant was convicted on the 16th August 216. This application was filed on 22 April 2021. This application is out of time for approximately 4 ½ years. The degree of non-compliance is inordinate. This is an inordinate delay by any standard. In explaining this inordinate delay, applicant only avers that he was not represented at the trial, and did not appreciate the legal implications of his guilty plea. An applicant for condonation must provide a full, detailed and accurate explanation for the delay. A delay of this magnitude requires a full, detailed and accurate explanation. To merely say he was not represented at the trial, and did not appreciate the legal implications of his guilty plea is seriously inadequate. However, this finding is not dispositive of this matter.

I now turn to consider whether the applicant has good prospects of success on review. Applicant proposed grounds of review are that: first, the trial court erred at law in failing to comply with the provisions of section 271(2) (b) of the Criminal Procedure and Evidence Act [Chapter 09:07]. This provision provides that if the court, at any stage of the proceedings in terms of section two hundred and seventy-one and before sentence is passed is not satisfied that the accused has admitted or correctly admitted all the essential elements of the offence or all the acts or omissions on which the charge is based; the court shall record a plea of not guilty and require the prosecution to proceed with the trial. This provision does not apply to this case simply because the applicant made unequivocal admission of guilty. Second, it is alleged that the trial court erred at law by failing to comply with sections 52 and 64 of the Road Traffic Act [Chapter 13:11]. These two provisions of the Road Traffic Act have no relevance to the applicant’s case and nothing may turn on them.

In his oral submissions, Mr Sengweni, counsel for the applicant argued that the trial court failed to comply with the mandatory provisions of section 163A and section 191 of the Criminal Procedure &Evidence Act which enjoin the courts in criminal cases to advise accused persons of their right to legal representation at the commencement of criminal trials. Counsel contended that this failure constituted a gross irregularity.

The record shows that applicant did not, before the trial court have the benefit representation. The record of proceedings show that applicant was not informed of his right to legal representation. By operation of s 163A (1) as read with s 191 of the CPE Act, at the commencement of the trial an accused must be informed, by the court of his right to legal representation. The court shall record the fact that the accused has been informed of such right and his response must also be recorded. This is a peremptory requirement. See: The State v Zvidzai Manetaneta HH 185-20; Potifa Sawaka v The State HH 262-20.

The Constitution of Zimbabwe Amendment (No. 20) Act 2013 (Constitution) guarantees every accused person the right to a fair trial, this includes the right to legal representation. The right enacted in the s 163A of the CPE Act is procedural. The substantive right is located in s 69 of the Constitution, which provides that every person has a right, at their own expense, to choose and be represented by a legal practitioner before any court, tribunal or forum. Therefore, the right to legal representation is a right of substance, not form, and it is the cornerstone of a fair trial. See: The State v Zvidzai Manetaneta (supra).

The record shows that the trial court violated this peremptory requirement and thereby denied applicant the right to legal representation. The Constitutional Court in Praymore Makanda v (1) Magistrate Sande N.O.  (2) Magistrate Kadye N.O.  (3) Magistrate Ndiraya N.O.  (4) The State CCZ 03/21 has observed that such an omission constitutes a gross irregularity. It is this failure in the 2016 trial to inform applicant of his right to legal representation that exercised my mind. It is because of this aspect of the case that I take the view that applicant has good prospects of success on the merits. I take the view that in this application the strong prospects of success compensate for a long delay and inadequate explanation for the delay. The application must succeed.

Disposition

In the result, this application succeeds, and I grant the following order:

Condonation and extension of time within which to file review proceedings in the High Court be and is here by granted.

Applicant to file his review proceedings within 10 days of this order.

Sengweni Legal Practice, applicant’s legal practitioners