Judgment record
Richmore Usayi v The State
HH 111/21HH 111/212021
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1
HH 111/21
B1856/20
Ref Con 354/20
CRB R 845/15
RICHMORE USAYI
versus
THE STATE
HIGH COURT OF ZIMBABWE
CHITAPI J
HARARE, 16 March 2021
1. Bail application pending determination of application for condonation of late
noting of appeal.
2. Application for condonation of late noting appeal.
Applicant in person
A. Hunzvi, for the respondent
CHITAPI J: When the applicant files what he or she terms “ application for condonation
of late noting of appeal” that description of the application suggests that the applicant has noted
an appeal late and applies that the late filing should be condoned. The position is that no valid
appeal can be noted with such late noting being condoned by application made after the late
noting of the appeal. In practice, this description of applications by applicants who are time
barred from noting an appeal has somehow come to be accepted as the correct description of
such applications. In my view an application which is described in an enactment should be so
described in order that there is no confusion on its nature and purport. There is need to refresh
on procedural dictates of such applications.
Where a convict who was convicted and sentenced by the magistrates court wishes to
appeal against the conviction and/or sentence or both, the procedures for doing so are set out
in the Supreme Court (Magistrates Court) (Criminal appeals) Rules, 1979 published as
Statutory Instrument 504 of 1979. In circumstances where the convict is time barred to note
an appeal, the convict’s right of appeal lapses. The convict can however apply to appeal out
of time. Part X1 of the appeal rules S.I 504/1979 is the part of those regulations which deals
with the lapsing of the right of appeal and how such right can be revived. Since my intention
is to refresh and correct mistakes made in the styling, description and handling of the
application, it is convenient to quote Part X1 of those rules. They provides as follows:-
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B1856/20
Ref Con 354/20
CRB R 845/15
“PART XI
LAPSING OF RIGHT OFAPPEAL AND APPLICATION TO APPEAL OUT OF TIME
47. Lapsing of right of appeal
If a convicted person fails to note an appeal in terms of these rules within the time-limits prescribed
thereby, his right to appeal against conviction and sentence shall lapse.
48. Application to appeal out of time
(1) Where the right of a convicted person to appeal against conviction and sentence has lapsed in terms of
rule 47, he may apply to a judge of the Supreme Court for leave to note an appeal out of time by lodging
an application, together with the documents referred to in subrule (2), with the Registrar, and giving for the
purpose of service the address of the applicant or his legal representative.
(2) An application in terms subrule (1) shall be accompanied by—
(a) a draft notice of appeal complying with the appropriate provisions of these rules; and
(b) an adequate statement explaining why the appeal was not noted within the time prescribed by these
rules.
(3) The Registrar shall give notice of an application in terms of subrule (1) to the Attorney-General, who
shall, within four days of receiving such notice, inform the Registrar whether or not he wishes to oppose
the application.
(4) Where the Attorney-General wishes to oppose an application in terms of subrule (1), he shall, within
five days of receiving notice in terms of subrule (3), lodge with the Registrar and serve on the applicant at
the address supplied in terms of subrule (1) his written arguments in opposition, and may, at the same time,
submit a request that the matter be set down for oral argument.
[Subrule amended by s.i 12 of 1992]
(5) The applicant may, within five days of receipt of written argument served on him in terms of subrule
(4), lodge with the Registrar and serve on the Attorney-General written arguments in reply, and may, at the
same time, submit a request that the matter be set down for oral argument.
[Subrule amended by s.i 12 of 1992]
(6) The Registrar shall, as soon as possible, lay all the papers relating to the application in terms of subrule
(1) before a judge of the Supreme Court, who may grant or refuse the application or order that the matter
be set down for oral argument.
(7) If the judge orders in terms of subrule (6) that the application in terms of subrule (1) be set down for
oral argument, the Registrar shall notify the applicant and the Attorney-General of the date of the hearing,
and, after hearing the Attorney-General and the applicant, if he appears, or if he does not appear, on
consideration of any written argument from the applicant, the judge may grant or refuse the application.
(8) If an application in terms of subrule (2) is granted, the judge of the Supreme Court who grants the
application shall give such directions as he may think fit with regard to the future conduct of the appeal.”
(Please note that the words supreme Court are to be construed as High Court.)
From the quoted provisions, it is to be noted that the application made in terms thereof where
the right of appeal has lapsed is (“an application for leave to note an appeal out of time ”). It
must follow that where the application is granted, the appropriate order should read that the
applicant is granted leave to appeal out of time. In terms of sub rule (8) of rule 48 as quoted,
having granted leave to appeal out of time, the judge must then give further directions
ancillary to the granting of leave to appeal out of time, on how the intended appeal shall be
handled, notably in terms of giving the extended time for noting the appeal and such
directions as the judge may consider necessary to make in the interests of justice. I am
sceptical about the correctness of an order which reads that “ condonation of late noting of
appeal is granted” because one condones something that has happened. I will therefore
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HH 111/21
B1856/20
Ref Con 354/20
CRB R 845/15
advisedly treat the application made by the applicant in relation to his wish to appeal
consequent on the time bar operating against him as an application for leave to note appeal
out of time.
I now address the substance of the matters I must determine. The applicant applies in
case no. CON 354/20 for leave to note appeal out of time and in case no. B1856/20 for bail
pending the determination of application CON 354/20. The applicant was on 11 December
2015 arraigned for trial before the Regional Magistrate at Harare on two counts of the offence
of rape as defined in s 65 (1) of the Criminal Law (Codification & Reform) Act: [Chapter
9:23]. He pleaded not guilty. After a full trial however, he was convicted as charged and
sentenced to 15 years imprisonment on each count marking a total of 30 years imprisonment.
5 years of the sentence in count 2 was made to run concurrently with the sentence in count 1.
This left a sentence of 25 years of imprisonment from which a further 5 years was suspended
for 5 years on condition of good behaviour. Leaving a sentence of 20 years imprisonment. I
am not clear as to the reasoning and justification for ordering part of the sentenced in count 2
to run concurrently with the sentence in count 1. I do not develop this observation further
because my determination does not fall to be decided on this point.
The details of the two charges were that during the period extending from June 2013
to December, 2013 the specific dates being unknown, the applicant twice raped the
complainants, a 4 year old female juvenile at a house in Mount Pleasant, Harare. The
complainant and the applicant’s daughter of similar age were friends. The complainant was a
daughter to a co-domestic worker of the applicant at the same house where they worked and
stayed. It was alleged that the applicant called the complainant into his bedroom when the
applicant’s wife was away. He made the complainant to lie on the bed facing upwards. The
applicant allegedly removed the complainant’s pant, pushed her leg apart and inserted his
erect manhood into the complainant private parts. The applicant then made “coital
movements” whilst on top of the complainant and ejaculated sperm on the complainant. He
wiped off his sperms from the complainant’s private parts and ordered the complainant to go
back into the kitchen. The complainant did not report the rape to anyone.
In relation to the second count, it was alleged in the State outline that –
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B1856/20
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CRB R 845/15
“06. Accused number one (the applicant herein) called the complainant again into his bedroom on
another date and made her lie in his bed and raped her again in the same way he did on the first time
he raped her. Complainant went into the kitchen but did not tell anyone again.”
I have quoted the details of the allegations in the second count deliberately because it
is not advisable to simply allege that the second offence was committed in the same way as
with the first offence. If the offences are separate, then separate and full allegations of how
the second or any subsequent offence was committed should be detailed separately. There is
an obvious danger in that at trial, the second offence is then dealt with as part of the first
offence yet it will be a distinct offence. Also, one must appreciate that an adverse finding on
for example how the offence was committed in count one will have a bearing on count 2 if
the allegation is that the offence was committed in the same manner in both counts. The
charging of more than one count of the commission of an offence in one indictment is for
convenience but does not remove the duty of the prosecutor to treat each count as a distinct
offence for purposes of leading evidence to prove each count. It will be apparent later in this
judgment that the prosecutor and the magistrate were not on guard on the need to separately
deal with the alleged two counts of rape for purposes of ensuring that each count was
independently proved beyond a reasonable doubt to have been committed by the applicant.
Lastly in regard to the factual allegations, it was alleged that it was only in January,
2014 that the complainant became sick and her health deteriorated. She was medically
attended to on 15 September, 2015 and the sexual abuse was discovered. The complainant on
being tested for HIV retained a positive result. As opposed to the applicant who tested
negative. The applicant submitted that his HIV negative test proves that he did have sexual
intercourse with complainant.
It is convenient to dispose of the bail application first because it is an invalid
application. There is no provision in law which permits a convict who has been convicted and
sentenced by a magistrate Court and who is time barred to appeal and has applied for leave to
appeal out of time, to apply for bail pending the determination of the application for leave to
appeal out of time. S 123 of the Criminal Procedure & Evidence Act, [Chapter 9:07]
provides that in the case of a convicted and sentenced person by the magistrates court, bail
may only be applied for-;
(a) pending the determination of an appeal noted against conviction or sentence or both ;
or
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Ref Con 354/20
CRB R 845/15
(b) pending the determination of an application for leave to appeal or extension of time
within which to apply for such leave
(c) pending the determination by the High Court of a review of those proceedings to be
placed before a judge of the High Court in terms of either s 57 or 58 of the
Magistrates Court Act, [Chapter 7:10]
There being no provision for a convict who is time barred to note appeal to apply for bail
pending the determination of an application for leave to appeal out of time, such application
has to seek leave to appeal out of time first before the applicant can then apply for bail
pending appeal after obtaining the leave and noting the appeal. Such application should and
will be struck off the roll. The applicant has to seek leave to appeal out of time first before the
applicant can then apply for bail pending appeal after obtaining the leave and noting the
appeal.
In regard to the merits of the application for leave to appeal out of time, it must be
accepted that this application is being made about five (5) years post-conviction and sentence.
The period of delay is too long and requires cogent and reasonable explanation to justify and
have it condoned.
The applicant averred that he could not afford legal representation for purposes of
prosecuting his proposed appeal. He also averred that he experienced challenges in obtaining
the record of proceedings. Even then he stated that he did not have resources to pay for the
record. He stated further that he had resigned himself to his fate until High Court judges
visited Chikurubi Prison on a routine visit and addressed the inmates. The judges encouraged
those inmates intending to appeal to follow their rights. He also gathered from the address by
the judges that the availability of a transcribed record was not a pre-requisite to filing an
application for leave to appeal out of time since it would be up to the judge to make an order
that the record be availed if considered necessary. Indeed rule 48 of the Supreme Court
(Magistrates Court) Appeals, Rules S. I. 504 as quoted does not provide that the application
shall be accompanied by a record of proceedings. The applicant also complained that after
identifying a relative who was willing to pay for the record, the record could not be located at
the Magistrate Court. In this regard, I directed the Registrar to follow up on the report that the
record could not be located. The Registrar separately addressed a letter to the Clerk of Court
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B1856/20
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CRB R 845/15
to forward copies of the record for purposes of determination of this application. The Chief
Magistrate forwarded the original and a transcribed copy of the record as directed.
The determination of the reasonableness of the explanation for delay to note the
appeal is determined upon a consideration of the circumstances of each case. The delay in
this matter is appreciably a long one. The applicant averred he could not afford legal
representation in order to be assisted to note appeal. The question which comes to mind, is,
“Did the applicant need such representation before noting the appeal? The constitution
provides in s 50 (1) (b) (ii) that upon arrest, the accused person must be permitted to engage
legal representation at own expense. Upon appearing in court consequent on the arrest, the
constitution in s 70 (1) (d) and (e) provides that the accused should be accorded the right and
opportunity to choose a legal practitioner of the accused’s choice at the accused’s expense or
to be represented by a legal practitioner assigned by the State if in a particular case, the
absence of legal representation would likely result in a substantial injustice resulting. Section
191 of the Criminal Procedure & Evidence Act, [Chapter 9:07] provides for the right to legal
representation on trial of the accused for any offence. Section 163A of the same enactment
makes it mandatory for the trial magistrate upon commencement of a criminal trial in the
magistrates court to advise the accused of his right to legal representation as provided for in s
191. In all criminal trials in the High Court, pro-deo counsel is appointed whom the accused
may dispense with if the accused engages private representation. Under s 70 (5) of the
Constitution, the convicted person has a right subject to reasonable restrictions which may be
imposed by law to have the case reviewed by a higher court and to appeal to the higher court
against conviction and sentence. The constitution is silent on any rights to legal
representation post-conviction and sentence. There is of course the Legal Aid Act, [Chapter
7:16] in terms of which any person can apply for legal aid in connection with any criminal,
civil or “other related matter.” The court may recommend legal assistance in relation to a case
before it.
The absence of explicit legislation to cater for convicts who require legal assistance
for purposes of appeal is a lacuna that I respectfully commend to the executive in its wisdom
to consider interrogating. Appeals are more technical to deal with on the part of the convict
than trials which largely involve the leading of evidence and the court determining that
evidence. An appeal is not a process where the appeal judges hear fresh evidence but it is
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Ref Con 354/20
CRB R 845/15
process in which the convict must demonstrate that his or her conviction, sentence or both are
wrong. It would be in my suggestion, a plausible development were convicts to be provided
for both access to legal representation at the stage of the convict having to make a decision on
whether or not to appeal to a higher court. I do not consider the excuse that the applicant
could not timeously note appeal because he lacked legal advice and representation as flimsy
or unreasonable. The applicant however took too long a period wishing for legal
representation. He did not explain the effects he made to seek legal representation. I have
however also considered that the applicant faced a challenge of obtaining a copy of the record
of proceedings. Indeed it took the intervention of the judge to have the record of proceedings
provided through the further intervention of the Chief Magistrates Office. The applicant as a
self-actor had a handicap of lack of legal representation, the record of proceedings and
general lack of procedural and substantive laws on the noting of appeals. I would not have
condoned the delay in failure to note appeal timeously on account of the lengthy period
between the operation of the time bar and the making of this application. Cases which have
been completed should be closed and it should not always be the norm that the court will
countenance lengthy delays. Where there is a length delay, its condonation will be granted as
an exception only in cases where the circumstances warrant the indulgence. In casu, the
applicant’s challenges appear to me to be genuine. There is nothing stated by the respondent
to indicate that convicts are given assistance to note their appeal whenever they intend to.
If it is considered that the reasons for the delay were not very satisfactory, I was
persuaded that the prospects of success of the appeal were high. This consideration would
mean that the high prospects of success would persuade the court to act in the interests of
justice and grant condonation. In this regard it was stated by BEADLE CJ in the case Kuzsaba
– Dabrowski et Luxer v Steel N.O 1966 RLR 60 (A) at 64 as follows –
“The more unsatisfactory the explanation for the delay, so much greater must be the prospects
of success of the appeal be before the delay will be condoned and the converse must of course
be equally true, the more satisfactory are the explanation for the delay, the more easily will
the court be inclined to condone the delay provided it thinks there is prospects of the appeal
succeeding.”
See Ngirazi v Saurosi & Anor HB 84/16, Maheya v Independent African Church 2007
(2) ZLR 319 (8).
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It is fortunate for the applicant that I am persuaded upon perusal of the record of
proceedings and the inelegantly drawn grounds of appeal by the applicant that there are high
prospects of success on appeal if the applicant pursues the appeal. The the grounds of appeal
proposed by the applicant read as follows-
“GROUNDS OF APPEAL
1. The erred court was not considering that it was protracted (pro) trial because the applicant
did not commit the crime since the complainant was HIV positive and the applicant HIV
negative. The applicant refers you to the medical report.
2. The one count of rape where just informed and the applicant pleaded not guilty.
3. The count never assisted the applicant to have a meaningful cross-examination.”
It is evident that the applicant from his poor command of the English language and
atrocious grammar would need assistance to properly draw up the notice and grounds of
appeal in addition to further representation at the hearing. I have taken a holistic view of the
application in terms of which I have considered the whole record of proceedings together
with the applicant’s protestations on the correctness of the conviction and the applicant’s lack
of knowledge of the appeal procedures. Using this approach, it is clear that the applicant
considers that he was convicted without sufficient evidence. He protests that the court a quo
should have determined that the fact that the complainant tested HIV positive and him
negative was indicative of the fact that no sexual intercourse took place between them
otherwise he would also have tested positive.
The magistrate in dealing with the issue of the HIV status of the complainant and the
applicant reasoned that the test results did not assist the applicant because it may well have
been another person, Zanaka accused also of raping the complainant who was HIV positive
and could have infected the complainant. The problem with such reasoning is that it opened
the door to an influence that the complainant may have been raped by Zanaka and not by the
applicant. This observation must be read against the background that the alleged rape was
said to have been committed in 2013 but only reported in 2015 upon the complainant being
observed by her mother to be unwell. The connection between the applicant and the medical
report as evidence of rape was arguably not proven.
The applicant also averred that he was convicted on an unfounded allegation of rape.
In regard to sufficiency of proof of commission of the offences, there was a contradiction
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which was not resolved. The State allegations were that the two counts of rape were
committed on different dates. However, the complainant’s evidence was that the applicant
“did it twice to me.” There was no attempt at separating the two counts and leading evidence
on one count even where the evidence on the first count dovetailed with the evidence on the
other count. The prosecution of more than one charge under a single indictment is for
convenience. Each count is a trial on its own so to speak from the view point of leading
evidence. There was a conflation of evidence which makes it impossible to appreciate what
evidence there was to convict the applicant on the second count. There is in my view very
good prospects of success that the appeal court will find the second count not proved. If this
be so, the sentence imposed on the second count would be set aside.
Under the circumstances, the interests of justice will be served by allowing the
applicant to appeal to a higher court. However, from the ineloquent manner in which his
proposed grounds of appeal are drafted, it is obvious that the task of prosecuting the appeal
starting with the drafting of the grounds of appeal is beyond his capabilities. I am however
not empowered at this stage to recommend legal assistance in terms of the Legal Aid Act
because the applicant until he has a pending appeal, which can only happen if he has filed the
notice and grounds of appeal, does not have a pending case whose nature may persuade the
court to recommend legal aid. The applicant is therefore strongly advised to arrange for legal
representation to assist him in noting and prosecuting the appeal. That is as far as I can go.
That said, the following order is made:
a) The applicant’s bail application filed under case No B 1856/20 is a nullity as it is
not provided for under the law.
b) The bail application No B 1856/20 is struck off the roll.
c) In case No. CON 354/20, the applicant is granted leave to note an appeal out of
time in regard to his conviction and sentence under case No R 845/15.
d) The applicant shall note his appeal within 10 days from the date that the Registrar
shall effect personal service of this order upon the applicant.
e) Additionally, the applicant is granted a certificate to prosecute his appeal in
person.
National Prosecuting Authority, respondent’s legal practitioners