MAKONESE J: This is an application for leave to appeal,
pursuant to the provisions of section 61 (b) of the Magistrates'
Court Act (Chapter 7:10). The application is opposed on the grounds,
inter alia, that the application for leave to appeal is well
out of time. The judgment which is the subject of this application
was delivered on 11 October 2013. This application is being brought
more than two years later. The application is hopelessly out of
time. There has been no attempt by the applicant to seek condonation
for the late filing of the application for leave to appeal. There is
no explanation why the application was not made timeously.
Background
The respondent appeared before a Regional Magistrate at Bulawayo on
a charge of rape. The respondent was found not guilty and acquitted.
It would appear that the applicant was not satisfied with the
outcome of the criminal proceedings hence the intention to appeal.
The grounds of appeal as set out in the draft notice of appeal are as
follows:
“Grounds of appeal
-
The court erred in believing that the complainant's evidence was
not credible.
-
The learned magistrate erred in relying on the delay in making the
report as a reason why the complainant's evidence should not be
believed.
-
The learned magistrate erred in attaching too much weight to the
fact that threats were not made to the complainant by the
respondent as a ground for casting doubt on his guilt.
-
The learned magistrate erred in attaching too much weight on the
fact that the complainant went back to the respondent's home
after the first offence and continued playing there after the
second offence.
-
the learned magistrate misdirected herself by taking judicial
notice of the alleged feud that existed between the two families as
a ground for casting doubt on the guilt of the accused when the
evidence before the court proved that such feud did not exist.”
It is clear that the applicant does not intend to appeal against the
decision of the trial court on a point of law. Section 61 (b) of the
Magistrates Court Act (Chapter 7:10) provides as follows:
“If the Prosecutor General is dissatisfied with the judgment of the
court in a criminal matter –
-
upon a point of law; or
-
because it has acquitted or quashed the conviction of any person who
was the accused in the case on a view of the facts which could not
be reasonably entertained;
he may, with the leave of a judge of the High Court, appeal to the
High Court against that judgment.”
The respondent contends that there has been an inordinate delay in
the bringing of this application. Further, and more importantly,
there has been no explanation for the delay in instituting this
application. It is trite that there is no set time limit for the
filing of an application for leave to appeal. Such an application,
in my view should be brought within a reasonable time. See Attorney
General v Lafleur & Another 1998 (1) ZLR 520 (H), and
Prosecutor General v Beatrice Mtetwa & Anor
HH-82-16.
The overriding principle to be applied in such cases is that there
is need for finality in litigation. The respondent is entitled to a
fair hearing as enshrined in section 69 of the Constitution of
Zimbabwe (No. 20 of 2013), which provides as follows:
“69. Right to a fair hearing
-
Every person accused of an offence has the right to a fair and
public trial within a reasonable time before and independent and
impartial court.
-
In the determination of civil rights and obligations, every person
has a right to a fair, speedy and public hearing within a reasonable
time before an independent and impartial court, tribunal or other
forum established by law …”
As clearly stated by MAWADZE
J in Prosecutor General v Beatrice Mtetwa and Another
(supra) at page 9 of the cyclostyled judgment:
“… it should be made abundantly clear to the Prosecutor
General that the Prosecutor General is not at liberty to come to this
court any time the Prosecutor General so wishes and seek leave to
appeal. Such conduct should be frowned upon by this court and ought
to be admonished without any hesitation by dismissing such an
application for leave to appeal.”
The remarks by MAWADZE
J, apply with equal force in this matter. I cannot comprehend why it
has taken the applicant more than two years to realize that there is
need to appeal against a judgment delivered in October 2013.
I make a specific finding that this application is not properly
before the court for the reason that there is no application for the
late filing of the application for leave to appeal. In any event, a
cursory look at the grounds of appeal in the draft grounds of appeal
reveals that this attempt to appeal is nothing more than a fishing
expedition.
The proposed grounds of appeal reflect a general criticism of the
findings of the trial court on issues of credibility. The grounds of
appeal do not disclose a fundamental misdirection in the manner in
which the trial magistrate examined the evidence or handled the case.
Findings of fact are traditionally the domain of the trial court.
In the circumstances, I would uphold he point in limine taken
by the respondent in that there has been an inordinate and
unexplained delay in bringing this application. There is therefore
no need for me to go into the merits of this application.
Accordingly, it is ordered that:
The application for leave to appeal be and is hereby dismissed with
costs.
National Prosecuting Authority, applicant's legal
practitioners
Messrs T. Hara & Partners respondent's legal
practitioners
