THE State V Noberty Negande

### Preamble
1
HCC 36/25
HCCR 586/25
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THE STATE

versus

NOBERTY NEGANDE

HIGH COURT OF ZIMBABWE

MUZOFA J

CHINHOYI, 19 June 2025

Chamber application for condonation

MUZOFA J: [1] The applicant was convicted with one count of stock theft and sentenced to 9 years imprisonment on 10 July 2023.

[2] He intends to note an appeal against sentence. He hit a brick wall once when he applied for condonation for late noting of an appeal and extension of time within which to appeal, the matter was struck off. He has filed this application and again it shall be struck off. The reasons boil down to lack of knowledge by the accused. This problem faces most inmates whether convicted or not.

[3] The application is convoluted that one wonders what the applicant is seeking. On the 3rd of June 2025 this chamber application was posted on my portal for determination. The application is captioned ‘chamber application for condonation and bail reinstatement’. The applicant has no appeal that is pending before the court. There is no bail to talk of.

[4] The respondent duly filed its response opposing the application. It simply treated it as an application for condonation of late noting of an appeal and leave to appeal in person. The application was opposed. The basis of opposition is that under HCCR 1095/24 the same application was dismissed by the court.

[5] Under HCCR 1095/24 the applicant applied for condonation for late noting of an appeal and leave to appeal in person. The application was struck off the roll. Additionally, the Judge directed that the applicant could only reinstate the application with the leave of the court. That leave was not sought before filing this application.

[6] A perusal of the pleadings filed under HCCR 1095/24 shows the extent of lack of appreciation by the applicant. The intended notice of appeal was unclear, and the attached record of proceedings was incomplete. The founding affidavit was just at cross purpose with the application. It motivated an application for bail. There was no valid appeal before the Court. It is trite that where there is no valid appeal filed before the Court no bail pending appeal can be made let alone be granted. A valid notice of appeal precedes an application for bail pending appeal.

[7] There is no difficulty to appreciate why the application under HCCR 1095/24 was struck off. The applicant failed to appreciate that, by virtue of that order he could not simply file another application. He must first obtain leave of the Court to file another application. This was not done.

[8] The applicant intends to exercise his right to appeal as provided under section 70 (5) (b) of the Constitution. However, it is apparent that he is at sea on how to proceed. This is a clarion call for provision of free legal aid to inmates. The Legal Aid Directorate may consider providing its services to inmates at intervals. The two applications by the applicant one under HCCR 1095/24 and the one before me are testament to that need. Both applications are just shambolic, this is one of the reasons l decided to write this judgment for the applicant to appreciate the procedures.

[9] That as it maybe, undeterred by the order under HCCR 1095/24 he filed the current application. He still refers to bail, he still refers to condonation. This time the attached pleadings are worse off than in the first application. He filed a notice and a founding affidavit only. The founding affidavit simply identifies the deponent and that service was effected on the respondent. There is absolutely nothing about the case, why was the application filed, what should the Judge condone or what should the Judge reinstate?

[10] My reading of the two applications the first under HCCR 1095/24 and this application shows that the applicant requires legal assistance to properly approach the court.

[11] Our Constitution has an express provision on legal aid. It is one of the national objectives in our Constitution, it provides,

31 Legal aid

[12] The State must take all practical measures, within the limits of the resources available to it, to provide legal representation in civil and criminal cases for people who need it and are unable to afford legal practitioners of their choice.

[13] Consequent to the Constitutional provision, s10 of the Legal Aid Act (Chapter 7:16) sets out one of the ways to actualise the Constitutional provision. It provides,

10 Legal aid at instance of court or Prosecutor-General

(1) If it appears to a judge or magistrate or to the Prosecutor-General that—

(a) it is desirable in the interests of justice that legal aid should be provided to a person who is or will be a party to any civil or criminal proceedings before the Supreme Court, the High Court or a magistrate court, as the case may be; and

(b) the person may have insufficient means to obtain the services of a legal practitioner on his own account; the judge or magistrate or the Prosecutor-General, as the case may be, may recommend to the Director that the person should be provided with legal aid and, where the State is or will be a party to the proceedings concerned, may recommend that a legal practitioner in private practice be engaged in terms of section twelve.

(2) Where a recommendation has been made to him in terms of subsection (1), the Director shall forthwith assess the means of the person concerned and, if he is satisfied that—

(a) the person has insufficient means to obtain the services of a legal practitioner on his own account; and

(b) the resources of the Legal Aid Fund will be sufficient to provide the legal aid required;

he shall provide the person with legal aid.

[14] From the two provisions it is apparent that legal representation is not an absolute right not everyone can access it, it is subject to set out conditions of which the ‘means test’ is paramount. This is the reason why the Court or a Judge cannot simply order that a party be represented by the Legal Aid Directorate. The Director must first make a proper assessment and decide whether the person is eligible. This is the standard in most jurisdictions.

[15] I considered whether this is an appropriate case to make such a recommendation in view of the indelible efforts by the applicant to approach the Court on appeal. I think so. The applicant requires guidance on how to proceed in his matter. The matter has to be struck off once again. The Registrar is directed to serve this judgment to the Chinhoyi Legal Aid Directorate for its consideration. The following order is made;

The application be and is hereby struck off the roll.

The matter is referred to the Legal Aid Directorate in terms of s10 of the Legal Aid Directorate for consideration.

National Prosecuting Authority, the respondent’s legal practitioners.