KUDYA J: This is a chamber application for condonation for the late
filing of an appeal that was filed on 25 February 2011. It was served on the
Attorney General on 28 February 2011 whose representative filed a response on
16 March 2011. The response read:
“Be pleased to take notice that it is not intended to
oppose the application. The respondent had sight of the respondent's (sic)
reasons for delay. May the relief be granted as per draft order.”
On 25 March 2011 I
dismissed the application on the basis that the applicant was in willful
default and had no prospects of success on appeal. On 29 March and 10 June
2011, the applicant's legal practitioners wrote to the registrar seeking my
detailed reasons for dismissing the application. These are they:
The applicant was
convicted on his own plea of guilty of the possession of 10,75 grams of gold
without a licence in violation of s 3 (1) of the Gold Trade Act [Cap 21:03]. On 9 December 2007, he was
travelling in a white pick-up truck that was intercepted by police detectives
along the Kadoma –Chikari road. During a search the detectives noted that he
could not pronounce words properly. They searched his mouth and found a plastic
paper containing the gold in question tied with a rubber band hidden under his
tongue.
In mitigation he
stated that he was 30 years old and was married with 2 children. He also looked
after 7 dependents one of whom was HIV+. He was employed and earned US$50.00
per week. He owned a head of cattle. He had religiously attended court on
remand since his arrest in 2007.
Thereafter the
trial court properly explained to him the meaning of special circumstances
particular to his case. In response he stated that he was employed from October
2007 until December 2007 by Musuwa at Lucy Mine Co-operative where he obtained
the gold. He was thereafter sentenced on 14 April 2010 to the mandatory minimum
sentence of 5 years imprisonment. In addition the gold was forfeited to the
State and he was prohibited from entering precious metal locations within a
period of 5 years.
The founding
affidavit to the applicant's application for condonation was deposed to by his
legal practitioner of record, Mr Stephen Murambasvina. Order 32 Rule 227 (4)
states that:
(4) An affidavit filed
(a) shall
be made by the applicant or respondent, as the case may be, or by a person who
can swear to the facts or averments set out therein; and
(b) may
be accompanied by documents verifying the facts or averments set out in the
affidavit, and any reference in this Order to an affidavit shall be construed as including such documents.
To the extent that Mr Murambasvina deposed to what could
only have been in the mind of the applicant, he was giving hearsay testimony.
He could not have been in the applicant's mind to know why he decided not to
appeal. The information he gave could only have been supplied to him by the
applicant. It should have been deposed to by the applicant himself and not by
his legal practitioner. The deposition of those facts that were not personally
known to his legal practitioner rendered them inadmissible. The averment in
paragraph 5 of the founding affidavit is hearsay and is inadmissible.
In an
application for condonation a court is enjoined to consider the three factors
of the length of the delay, the explanation for the delay and the prospects of
success. See Mashave & Ors v Zupco
& Anor 2000 (1) ZLR 478 (SC) at
486 C-D.
Length of the
delay
Section 39 of the Supreme Court
(Magistrates Courts) (Criminal Appeals) Rules, SI 504 of 1979 governs the time
for noting appeals by an unrepresented accused person to the High Court. It
reads:
39. Noting of appeal
The appellant shall, within five
days of the passing of sentence, note his appeal by lodging with the clerk of
the court a notice in duplicate—
(a) setting out clearly and
specifically the grounds of the appeal and giving for the purpose of service
the address of the convicted person; and
(b) stating that the
appellant intends to prosecute the appeal in person.
The applicant was
obliged to note an appeal against sentence within 5 days from 14 April 2010. He
made the present application on 28 February 2011, a delay of 10 ½ months. I
find the delay inordinate.
The explanation for the
delay
In the light of
the provisions of Order 32 Rule 227 (4) of the Rules of Court, the applicant
did not proffer any explanation for the delay. He was therefore in willful
default. That he was in willful delay was demonstrated by the hearsay
explanation proffered by Mr Murambasvina in the founding affidavit. It was that
he did not have the means to raise legal fees. I found this to be a contrived
explanation. The applicant did not explain why he did no seek to appeal in
person or note what is commonly referred to as a bush appeal. He did not
require funds to do so. Thus even if Mr Murambasvina's explanation was properly
before me, it would not have been sufficient to satisfy me that the applicant
had a real desire to appeal against the sentence that was imposed by the trial
magistrate. In the absence of an explanation for the delay, I am satisfied that
the inordinate delay was willful.
The prospects of success
The trial court
properly explained the essential elements of the offence. It conducted a
question and answer session with the applicant in which the applicant genuinely
and advisedly pleaded guilty. It properly explained and recorded the
explanation on special circumstances. The appellant responded and supplied what
he believed amounted to special circumstances. The trial magistrate was not
satisfied that any existed and imposed the mandatory minimum sentence. Mr
Murambasvina submitted that the negligible value of the gold amounted to a
special circumstance. I do not agree. The value of the gold is only known after
assaying. At the time an accused has it in his custody; he does not know its
value. That it may turn out to be negligible does not amount to an out of the
ordinary factor. See S v Mungagavari
1984 (1) ZLR 80 (S) at 87A. The trial magistrate did not misdirect himself in
his approach to sentence. The appellant has no arguable case on appeal.
Conclusion
Despite the concession
by the respondent, the application for condonation is dismissed, firstly
because the applicant was in willful default and secondly, because there are no
prospects of success on appeal.
Jarvis Palframan, applicant's legal practitioners
Criminal
Division of the Attorney General,
respondent's legal practitioners
