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
