On
19 November 2014 I perused the papers filed of record and dismissed a
Chamber Application for Condonation of Late Filing of Notice of
Appeal against sentence only.
I
have been asked to comment following a note written by the
applicant's legal practitioners wherein they said they were
anticipating filing an answering affidavit and heads of argument in
view of the respondent's opposition to the application.
The
following is my comment.
The
salient features of this case were that the applicant was convicted
on his own plea of guilty to five (5) counts of theft as defined in
section 131 of the Criminal Law (Codification and Reform) Act
[Chapter
9:23].
He was sentenced by a Mbare Magistrate on 29
May
2013. All the five counts were taken as one for purposes of sentence
and he was slapped with a 5 year term of imprisonment of which 2
years imprisonment were suspended for 5 years on the usual condition
of future good behaviour. The applicant, who was employed by the
complainant as an Accounts Clerk, had stolen a total of $3,617=13
which comprised of salaries for other employees.
In
dismissing the application without waiting for supplementary
submissions I took into account the length of the delay, reasons
advanced for the delay, and the chance of the appeal succeeding.
The
applicant was sentenced on 29 May 2013. The application was filed on
24 of October 2014. This was more than one and half years later.
Rules
34 and 39 of the Supreme Court (Magistrates Courts) (Criminal
Appeals) Rules 1979, govern the noting of appeals against sentences.
They provide as follows;
“APPEAL
AGAINST SENTENCE BY CONVICTED PERSON WHO IS LEGALLY REPRESENTED
33…,.
34.
Noting
of appeal
(1)
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 setting out clearly and specifically the grounds of the
appeal and giving for the purpose of service the address of his legal
representative or, if a legal representative has yet to be appointed,
the address of the appellant:”
On
the other hand, Rule 39 says –
''APPEAL
AGAINST SENTENCE BY CONVICTED PERSON IN PERSON
38…,.
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.”
In
casu,
the delay is almost one and half years. To me, this is an inordinate
delay.
His
explanation for the delay is financial constraints. In paragraph(s)
5.2 to 5.4 of his founding affidavit the applicant stated that -
“5.2
Whilst I was aware that I should institute such appeal within five
(5) days of being sentenced, I was unable to, because of dire
financial constraints.
5.3
The theft in question that I committed resulted in my loss of
employment, hence my failure to raise money with which I would
approach lawyers with instructions to appeal at this honourable court
against my said sentence.
5.4
By the time that my unemployed wife managed to raise a paltry sum
with which she approached my current legal practitioners, the time
within which I should have appealed had long expired/ lapsed, hence
my present application.”
In
my view, the delay was not due to ignorance of the law.
If
the applicant was desirous to appeal he had a choice to engage a
lawyer and proceed in terms of Rule 34 or to proceed in terms of Rule
39 and prosecute his appeal in person.
The
reason for the delay was therefore unreasonable.
I
carefully looked at the facts, the reasons given by the trial
magistrate, and the ultimate sentence that was imposed. All the five
(5) counts were treated as one. This was a serious theft from
employer on a number of occasions. There was a breach of trust
reposed on the applicant by his employer. A total of $3,617=13 was
stolen of which nothing was recovered. The sentence imposed was in
line with decided cases. The trial magistrate judiciously balanced
the mitigatory and aggravatory factors. There are no prospects of
success on appeal. It would have been an exercise in futility to ask
for heads of arguments as this was not going to change anything.
In
coming to the decision as I did I took into account the wise words of
JR Rowland in Criminal Procedure in Zimbabwe, where, in stating the
factors to be considered in an application of this nature, he said -
“The
first is the length of the delay. The second is the reason advanced
for the delay. The third is the chance of the appeal succeeding. The
greater the length of delay and the less satisfactory the reason for
the delay, the greater must be the chance of success. Where the delay
is short and the reason for it is convincing and satisfactory, the
chance of success need not be so great; it may be enough to have an
arguable case.”
See
the cases of
S
v Franco and Others
1974 (2) RLR 38 (A) and S
v Moyo
(1) 1978 RLR 316 (G).
In
this case, the delay was too long, the reason for the delay was
unsatisfactory, and the chance of success was nil.
Accordingly,
the application is dismissed.
