Prosecutor General of Zimbabwe v Job Sikhala

### Preamble
Judgment No. SC 116/20
1
Chamber Application No. SC 302/20
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REPORTABLE		(107)

PROSECUTOR     GENERAL     OF     ZIMBABWE

v

JOB     SIKHALA

SUPREME COURT OF ZIMBABWE

HARARE: JULY 30, 2020, & SEPTEMBER  21, 2020

E. Makoto, for the applicant

Mrs B. Mtetwa S, for the respondent

MAKONI JA:    This is a chamber application for reinstatement of an application for leave to appeal and condonation for late filing of documents. When the applicant filed his chamber application for leave to appeal he had over looked the need to file the charge sheet, the state outline, the defence outline, the plea and the exception with the application.

FACTUAL BACKGROUND

The respondent was arraigned before the High Court on a charge of contravening s 22 (2) (a) (i) of the Criminal law (Codification and Reform) Act [Chapter 9:23] (the Code). It was alleged that on 6 July 2019, at a political rally in Bikita, the respondent advocated, urged or suggested to members of the MDC Alliance, a political party, that they overthrow the Government of Zimbabwe by unconstitutional means. The respondent pleaded not guilty and excepted to the charge on 14 February 2020.

The court a quo upheld the exception and acquitted the respondent. On 2 March 2020 the applicant filed a chamber application for leave to appeal (main application) to this Court in terms of s 44 (6)(a) and (8) of the High Court Act [Chapter 7:06] as read with r 73 of the Supreme Court Rules, 2018.

The chamber application was placed before a Judge in chambers who observed that it was incomplete as the applicant had not filed the charge sheet, state outline, defence outline, the plea and the exception. By letter dated 11 March 2020, the Registrar advised the applicant of the above position.

In terms of Practice Direction No. 2/16 and on 29 June 2020, the main application was dismissed by the Registrar after the applicant failed to rectify the queries referred to above. It is against this background that the applicant filed the present application.

SUBMISSIONS BY THE APPLICANT

Delay

Mr Makoto for the applicant submitted that the main reason for failure to comply with Practice Direction 2/16 was because of logistical problems encountered in obtaining a copy of the court record from the Masvingo registry. The problems were further compounded by the Covid 19 lockdown which resulted in the scaling down of operations in most institutions in the country.

Prospects of success

Mr Makoto made the following submissions. The case is of particular importance regarding the interpretation of s 22 of the Code and whether the conduct of the respondent amounts to a violation of the section. The offence touches on state security and a proper interpretation of the section will guide the prosecution and the courts. The court a quo misdirected itself in upholding the exception when the essential elements of the offence were alleged in particular the words advocated or urged. If the uttered words had been taken in context, those words would have been found to be a violation of s 22 of the Code.

RESPONDENT’S SUBMISSIONS

Delay

Mrs Mtetwa, for the respondent, made the following submissions. The applicant filed the application for leave to appeal on 2 March 2020. The respondent filed his notice of opposition on 9 March 2020. He raised the issue of non-compliance with the rules in the opposing affidavit. There was no lockdown then.

The Registrar then wrote to the applicant on 11 March advising it of the queries raised by the Judge. The applicant received the letter on 13 March 2020. It did nothing to deal with the non-compliance for three months. On 20 June 2020 the Registrar wrote to the applicant advising that the application had been dismissed. No single document was attached to show that the applicant contacted the Registrar in Masvingo. There is nothing to show the effort made to secure the documents other than to say that they had lockdown problems. The court can take judicial notice of the fact that criminal prosecutions were taking place during the lockdown period.

The applicant was prompted to file the present application by the letter of dismissal from the Registrar. There is nothing to show that they are taking this matter seriously.

Courts lean in favour of the individual rather than the state. Where the state intends to reinstate a criminal trial, where there has been a pronouncement, it should act quickly. This is because any such action affects the right to liberty and the right to a fair trial of an individual.

Prospects of success

Section 22 of the Code has already been extensively interpreted in S v Mawarire HH 802/17. Mawarire was discharged at the close of the state case. The state did not appeal against that decision. It did not do so because it accepted the court’s interpretation of the section. The Mawarire case was even stronger than the present matter.

The state did not provide the full transcript of what occurred at the rally. It gave the court a quo an excerpt which starts in the middle of a sentence. The excerpt also ends in the middle of a sentence. The state had to prove its case based on that excerpt. Even if it were to appeal the excerpt remains the same.

Context

The excerpt that the state provided did not, prima facie, establish an offence. The court could not have been expected to contextualise the excerpt in the form that it was in.

The judgment

The judgment extensively deals with the essential elements of what constitutes overthrowing a government unconstitutionally. It also deals with other provisions of the constitution where a sitting government can be constitutionally removed. It further deals with the meaning of “war” and “fight” as defined in the dictionary. On a proper reading of that judgement there are absolutely no prospects of success in the main matter.

THE LAW

It is settled law that condonation is an indulgence which may be granted at the discretion of the court and is not a right obtainable on demand. See Friendship v Cargo Carriers Limited & Anor SC 1/13. In exercising that discretion, the court is enjoined to look at several factors cumulatively. These include the extent of the delay and the reasonableness of the explanation for the delay or non-compliance, the prospects of success on appeal, the possible prejudice to the other party, the need for finality in litigation, the importance of the case and avoidance of unnecessary delays in the administration of justice. (See Read v Gardiner & Anor SC 70/19) However, there are several authorities to the effect that condonation may be granted in circumstances where, although the explanation tendered is unsatisfactory, the prospects of success on appeal are good.

In Khumalo v Mandeya & Anor 2008 (2) ZLR 203 (S), Malaba JA (as he then was), granted an application for condonation notwithstanding a finding that the explanation given for the delay was unacceptable. He remarked,

“Had it not been for the fact that I consider the prospects of success on appeal to be good I would have dismissed the application.”

Similarly, in Mahachi v Barclays Bank of Zimbabwe SC 6/06, the court also stated that:

“In a case of this kind, where no acceptable explanation for non-compliance with the Rules has been given, the applicant must show very good prospects of success on appeal.” (See also S v Tengende & Ors 1981 ZLR 445)

It follows that where good prospects of success on appeal exist, the court may grant the indulgence sought.

This reasoning was adopted by Dube J in Chiweza v Mangwana & Ors HH 186/17 where she held:

“The court is required to consider the requirements for an application for condonation cumulatively and weigh them against each other. The application for condonation is not decided on one exclusive factor. The existence of strong prospects of success may compensate for any inadequate explanation given for the delay. Where the applicant proffers a good explanation for the delay this may serve to compensate for weak prospects of success in the main matter. Good prospects of success and a short delay, albeit with an unsatisfactory explanation, may lead to granting of the application. The court dealing with the application has a wide discretion which it must exercise judicially after considering all the circumstances of the case. The factors are not to be individually considered, but cumulatively considered with the strong making up for the weak. The court should endeavour [sic] to be fair to all the parties involved.” [Emphasis added]

The principle which can be drawn from these cases is that the factors to be considered in such applications must be considered cumulatively and where the delay is short and there are reasonable prospects of success on appeal, condonation for non-compliance with the rules may be granted. The court must achieve fairness to all parties.

ANALYSIS

Although there are many factors to be considered in such applications the commonly considered are;

The delay or degree of non-compliance and the explanation proffered for the non-compliance.

Prospects of Success

I will consider the above requirements seriatim

1)	THE DELAY AND THE EXPLANATION THEREOF

The applicant was advised of the query raised by the Judge on 11 March 2020. It did not do anything until the Registrar wrote to it on 29 June 2020 advising that the application had been dismissed. There was a period of slightly over 3 months in between the two letters. The applicant filed the main application on 10 July 2020, a period of 10 days after being advised that the application had been dismissed. The above narration reflects that after receiving the query from the Registrar the applicant sat on its laurels without rectifying the query. As was correctly suggested by Mrs Mtetwa the applicant was prompted to act by the letter from the Registrar dismissing the application. Even then, the applicant did not promptly attend to the query and seek condonation from this court. It took another 10 days for it to then file the main application.

This sequence of events shows the applicant’s lack of diligence in pursuing this matter. The degree of non compliance is patently high considering that the applicant is seeking an indulgence from this Court.

The applicant avers that the non-compliance was occasioned by logistical problems encountered in obtaining a copy of the record from the Masvingo Registry. It is averred that this was exacerbated by the COVID 19 lockdown which caused a scaling down of operations in the applicant.  It is an established position of the law that he who alleges must prove.  See Nyahondo v Hokonya and Ors 1997 (2) ZLR 457 (S) at 459].  The applicant has made bald averments which are unsupported by correspondence or affidavits to show the efforts it made to obtain the documents from the Masvingo Registry. This is further compounded by the fact the applicant does not state when it finally received the documents received from Masvingo Registry. Clearly the explanation for the non-compliance is unsatisfactory.

2)	PROSPECTS OF SUCCESS

It must be borne in mind that what I am currently seized with is the application for reinstatement of the application for leave to appeal. My task is to assess whether there are prospects of success in the application for leave to appeal (the main application). I must admit that one will be skating on thin ice as one does not want to bind the court that will eventually deal with the application for leave to appeal should the present application succeed.

In my view, the main application, inter alia, raises a very important jurisdictional question which is how far can a judicial officer go, in exception proceedings, in determining the meaning to be ascribed to words in a charge sheet.

In the court a quo the court made the following finding at p 81 of the record.

“My finding in casu in upholding the exception is that the alleged utterances by the accused even if proved to be true disclose no offence”.

It is this finding that will be tested on appeal.

A reading of the charge sheet reflects that it follows the wording of the statute and as framed discloses an offence. The critical issue is how the words allegedly uttered are interpreted in view of the totality of the evidence that might be led by the state. I should hasten to add that a stand-alone interpretation of the words allegedly uttered, as happened in casu, may not necessarily give a true contextual meaning of the words and the import thereof in relation to the allegations.

I therefore find that there are strong prospects of success in the main application.

Although the explanation proffered for the delay is unacceptable I have exercised my discretion in favour of granting the application for the reason that there are good prospects of success in the main matter and the application must succeed.

I will therefore make the following order:

1. 	The chamber application for leave to appeal to the Supreme Court in case number SC 105/20 be and is hereby reinstated.

2. 	The applicant’s failure to comply with Practice Direction 2/16 be and is hereby condoned.

3. 	The applicant shall file the indictment and defence outline in case number HMA 4/20 as ordered in case number SC 105/20 within five (5) days of the date of this order.

4. 	There shall be no order as to costs.

National Prosecuting Authority, applicants’ legal practitioners

Mtetwa and Nyambirai, respondents’ legal practitioners