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
1.
The court erred in believing that the complainant's evidence was
not credible.
1.1.
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.
1.2
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.
1.3
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.
2.
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
Magistrate's Court Act [Chapter 7:10] provides as follows:
“If
the Prosecutor General is dissatisfied with the judgment of the court
in a criminal matter –
(a)
Upon a point of law; or
(b)
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
HH82-16.
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
(1)
Every person accused of an offence has the right to a fair and public
trial within a reasonable time before an independent and impartial
court.
(2)
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 & Anor
HH82-16…,:
“…,
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 the
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.
