UISS ZUZE Versus THE State

### Preamble
1
HH 152-22
CRB NO. R38/18
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UISS ZUZE

versus

THE STATE

HIGH COURT OF ZIMBABWE

KWENDA J

HARARE, 11 March 2022

In Chambers

Application for condonation and extension of time within which to note a criminal appeal

KWENDA J: The applicant was convicted of rape and sentenced on 4 May 2018 to imprisonment for 13 years of which 4 years were suspended for 5 years on condition of good behaviour. After pronouncing sentence court, a quo explained the applicant’s right as follows: -

“Let me explain to you.  If you are not satisfied with the whole or part of these proceedings, you are at liberty to note an appeal.  What you need to understand is that you should do that in the next 10 days. However, regardless of the fact that you may or may not (appeal), this record of proceedings will be placed before a reviewing judge within the next 7 days in order to ascertain the correctness or otherwise of the proceedings”

The applicant now intends to appeal against conviction and sentence almost four years after the date on which he was sentenced. He has applied for condonation, extension of time within which to appeal and leave of this court to prosecute the appeal in person.

An application for extension of time with which to appeal from the Magistrates court in a criminal case is governed by the provisions of s 106 of the High Court Rules, 2021 which I quote below: -

“Lapsing of right of appeal and application to appeal out of time

106. (1) If a convicted person fails to note an appeal in terms of these rules within the specified time limits, his or her right to appeal against conviction and sentence shall lapse.

(2) Where the right of a convicted person to appeal against conviction and sentence has lapsed in terms of subrule (1), he or she may apply to a judge of the High Court for leave to note an appeal out of time by lodging an application, together with the documents referred to in subrule (3), with the registrar, and giving for the purpose of service the address of the applicant or his or her legal representative.

(3) An application in terms of subrule (2) 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 specified by these rules.”

The judge who considers the application therefore takes into account the following: -

That the application is compliant with the rules.

The adequacy of the statement explaining the delay informed by the following: -

The length of the delay.  See R v Humanikwa 1968 (2) RLR 42; R v Viringanayi 1969 (2) RLR 509 (A); Kombayi v Berkhout 1988 (1) ZLR 53 (S)

The explanation for the delay. The greater the delay the stronger the explanation ought to be for the delay. Where the explanation is weak, the prospects of success on appeal must be greater. See cases cited above.

The prospects of success on appeal. Where the delay is inordinate and the explanation is weak, the merits of the appeal may still persuade the court to grant condonation.

In my view the judge must also be satisfied of the bona fides of the application. Some

prisoners apply for condonation and extension of time within which to appeal just as a stepping stone towards securing release on bail. In other words, an application should not be granted on the basis that the applicant deserves a day in court. The right to have a day in court on appeal lapses when a person convicted of an offence fails to appeal within the time stated in the rules. It is also my view that the draft notice and grounds of appeal submitted with the application must necessarily be valid for the application to succeed. In other words, the draft notice of appeal should meet all the statutory requirements in terms of form and content.

The procedure where a convicted person appeals in person has been streamlined and is now

governed by r101 of the High Court rules 2021, Statutory Instrument 202/21. The noting of an appeal by an unrepresented person therefore triggers a series of timed mandatory activities and if the timeframes are dutifully observed the record of the proceedings, which are the subject of appeal should be placed before a judge, in chambers, in less than a month, who may grant or refuse a certificate to prosecute the appeal in person in terms of subsection (1) of section 36 of the High Court Act [Chapter7:06]. The registrar is required to notify the appellant and the clerk of the court accordingly.

The fate of the appeal noted in person, therefore, hinges on the judge’s decision whether or not to grant the certificate. The notice of appeal placed before a judge in chambers helps the judge in assessing both the prospects of success and the appellant’s ability to prosecute the appeal in person. Even where the convicted person notes the appeal in person the notice of appeal must still be clear and specific. The standard is the same whether the appellant is represented or not.

In this case, the applicant has failed or neglected to submit, with his application, a draft

notice of appeal. The omission is fatal to the application.

The applicant has delayed his appeal by a period of four years. The trial court duly informed him of his right to appeal and the time frame within which to exercise the right. The applicant’s failure to note an appeal within ten days was therefore clearly wilful. The delay is inordinate if considered in light of the explanation given by the trial magistrate on the end of the trial.  In criminal procedure the trial court is the custodian of the accused person’s constitutional rights and where the accused is not represented the court is expected to inform the accused person of his rights and the implications of certain criminal processes even over and above the trial court’s obligations expressly spelt out in statute. The decision by the trial magistrate to inform the appellant of his rights is therefore commendable. It is my recommendation that moving forward a court which has convicted and sentenced any person should advise such person of his or her right to appeal (through counsel or in person) and the exigencies thereof.

I will now consider the merits of the intended appeal. The state case was that on 10 December 2017 at 3am the applicant unlawfully entered the house where the 13-year-old victim was sleeping and raped her. The applicant submitted that the trial court erred in rejecting his defence. His defence was an alibi.  He said on the day in question he left for a Nyau dance festival at 6pm. He was at the festival until 1.30am the following day. Thereafter he went to sleep at a friend’s house after failing to locate the person who had keys to his own house. He submitted that the State case should have been rejected. The complainant was neither credible nor truthful as a witness. She simply could not remember important detail. The medical report was not conclusive. The State had, thus, not proved its case beyond reasonable doubt.

The issues at the trial were, firstly, whether the complainant had correctly identified the applicant as the person who raped her and secondly, whether the State had disproved the applicant’s alibi.

The trial court found that the complainant was a credible witness. She knew the applicant very well prior to the rape incident. She lit the room using the light from her phone and that enabled her recognise the applicant. She also spoke to him, asking him to confirm that it was him who had entered the house, which he did. In the premises the trial court found that there was no possibility of mistaken identity. With regards to the applicant’s alibi, the trial court found that the complainant’s evidence placed the applicant at the scene. The applicant had also not placed facts before the court sufficient to put the defence of alibi in issue. In other words, he did not provide details as to where the festival was held, who hosted it and the names of those who were with him. If he had provided such information to the investigating officer his defence would have been followed up. He only raised the defence in court.

I am not persuaded that the intended appeal against conviction has any merits.

Against sentence the applicant simply regurgitated his submissions a quo in mitigation. The submissions would not be a basis for a valid appeal against sentence. In any event the applicant has not attached a valid draft notice of appeal against sentence.

In the result I conclude that the intended appeal lacks merit both against conviction and sentence and order as follows: -

The application is dismissed.

National Prosecuting Authority, Respondent’s Legal Practitioners