Automatic Bar

SC36-20 : TONIC MANGOMA vs THE STATE
Ruled By: MAKARAU JA, MAKONI JA and MATHONSI JA

This is an automatic appeal against both conviction and sentence. The appellant was convicted of murder with actual intent by the High Court sitting on circuit at Gweru on 22 September 2014.

Upon conviction, the penalty of death was imposed.

After hearing argument from counsel, this Court made the following order:

“It is ordered that:

1. The appeal against conviction is dismissed.

2. The appeal against sentence is allowed.

3. The sentence of death imposed by the court a quo is set aside.

4. The matter is remitted to the court a quo for consideration and imposition of an appropriate sentence.”

The court stated that the full reasons for the order would follow. These are the reasons.

NON-INVOLVEMENT OF THE STATE

This appeal was initially set down on 11 September 2018. The appeal could not be heard on that date because the respondent had not filed heads of argument and needed time to do so. Counsel for the respondent requested a postponement to enable her to file heads of argument. The court acceded to that request and issued the following order:

“It is ordered that:-

The appeal is postponed sine die to allow the respondent to file heads of argument following the late filing of the notice of appeal.”

I must add that the Notice of Appeal had been filed only on 7 September 2018 giving the respondent little time to file heads of argument.

When the appeal was again set down for hearing, the respondent still had not filed heads of argument. Counsel for the respondent, again, appeared and sought a further postponement of the appeal. She admitted having been served with the Notice of Appeal in September 2018 and being timeously served with the Notice of Set Down. She however submitted that the matter had been allocated to someone else at the office of the National Prosecuting Authority who did not file heads of argument.

As to why that officer had not appeared before the court to explain her failure to act and why she was not making the application for a postponement herself, counsel did not give a satisfactory explanation.

It is clear that the office of the National Prosecuting Authority has been tardy in its handling of the matter and has not given it the attention that it deserves.

In terms of Rule 52(3) of the Supreme Court Rules, 2018, where the respondent is to be represented by a legal practitioner at the hearing of the appeal, that legal practitioner shall file a document setting out the heads of his or her argument together with a list of authorities cited in support, within ten days of receipt of the appellant's heads of argument.

Subrule (5) of Rule 52 provides for an automatic bar against a failure to file heads of argument timeously.

The appellant's heads of argument were filed and served on the respondent on 30 May 2018 but the respondent, even though represented by counsel, did not file its own heads of argument up to the date of the initial set down on 11 September 2018 on the pretext that the Notice of Appeal had not been filed and served on time. This Court gave the respondent an indulgence and postponed the matter sine die to allow enough time for the settling of the heads of argument.

The indulgence was spurned.

It is the view of this Court that the respondent could not possibly expect a further indulgence of another postponement. In fact, there was nothing suggesting that the respondent was treating this Court with the respect that it deserves.

While it is the right of the prosecution, in any criminal appeal, to defend the conviction, and, indeed, the sentence of convicted persons, that right should be exercised within the confines of the law and the four corners of the Rules of Court.

The court has always leaned in favour of according the National Prosecuting Authority the opportunity to present its cases and to be heard. In that regard, they have always been indulged in the discretion of the court. Unfortunately, the leniency extended to that office has been completely misunderstood. It is certainly not a licence for treating the Rules of Court with disdain.

Indeed, there are no special rules governing the National Prosecuting Authority. It is a party to proceedings just like any other litigant and is required to abide by the Rules.

Where there has been a failure to comply or there has been a delay, a reasonable and satisfactory explanation for failure to comply or to act timeously must be rendered.

No meaningful explanation for the failure to file heads of argument was given - even after an indulgence had been extended to the respondent on a previous occasion.

This is a case in which the appellant was convicted and sentenced to death on 22 September 2014. A capital sentence has been hovering over his head for almost six years. It is completely unacceptable, in the circumstances, for the respondent to behave as if it is business as usual.

It is for these reasons that this Court refused the application for a further postponement and proceeded to hear the appeal as unopposed.

HH117-14 : LEE-WAVERLY JOHN vs THE STATE and RODGERS KACHAMBWA
Ruled By: MATANDA-MOYO J

The applicant, at the onset of the proceedings, raised two preliminary points.Firstly, he submitted that there was no opposition by the respondents before me.The respondents filed a notice of opposition on 23 July 2013. An opposing affidavit by Rodgers Kachambwa was filed together with the Notice of Opposition.I shall quote ...

The applicant, at the onset of the proceedings, raised two preliminary points.

Firstly, he submitted that there was no opposition by the respondents before me.

The respondents filed a notice of opposition on 23 July 2013. An opposing affidavit by Rodgers Kachambwa was filed together with the Notice of Opposition.

I shall quote the opposing affidavit verbatim;

“IN THE MAGISTRATES COURT CRB No. R847/12 FOR THE EASTERN DIVISION CASE No HELD AT HARARE In the matter between: LEE WAVERLY JOHN APPLICANT vs THE STATE 1st RESPONDENT SIMON ROGERS KACHAMBWA NO 2ND RESPONDENT

_____________________________________________________________________
OPPOSING AFFIDAVIT
_____________________________________________________________________

I have gone through the application for review of the court proceedings up to the close of the case for the State and my ruling I made in favour of the State.

The application is opposed in its entirity. The review cannot shop the resumption of the trial. I will refer to the Applicant and his lawyer to the case of Attorney General v Makamba SC74-04, dated 30 August 2004, which is clear on the applications similar to the one before me.

Sworn before me this 16 day of July 2013

_____________ Deponent

_____________ Commissioner of Oaths.”

Counsel for applicant submitted that that the above affidavit refers to a matter in the Magistrate Court and has no bearing on the present case.

Substantively there is nothing in the affidavit. I agree with the applicant's submissions.

The affidavit was written for a matter before the Magistrate Court. It is not meant for this matter. Again, the contents of the affidavit do not state the reasons why the application is opposed. There are no factual averments therein. The ruling by the magistrate has not been properly admitted into evidence. If such ruling was to be an annexure to the opposing affidavit then, it must be properly referred to in that affidavit.

It was my finding, therefore, that there was no opposing affidavit filed.

Without such opposing affidavit no heads can be filed.

Again, counsel for the applicant argued that the respondents are barred.

The respondents were served with the applicant's heads of argument on 23 September 2013. The respondents had up to 7 October 2013 to file their heads. They did not do so. The respondents filed their heads on 27 February 2014. Such heads were filed without condonation from this court.

I found that, indeed, the respondents were barred. Without condonation having been made by this court, the respondents could not be heard. I then proceed to hear the applicant on the merits.

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Zimbabwe

Automatic Bar

SC36-20 : TONIC MANGOMA vs THE STATE
Ruled By: MAKARAU JA, MAKONI JA and MATHONSI JA

HH117-14 : LEE-WAVERLY JOHN vs THE STATE and RODGERS KACHAMBWA
Ruled By: MATANDA-MOYO J

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Law Portal Zimbabwe

Automatic Bar

SC36-20 : TONIC MANGOMA vs THE STATE Ruled By: MAKARAU JA, MAKONI JA and MATHONSI JA

HH117-14 : LEE-WAVERLY JOHN vs THE STATE and RODGERS KACHAMBWA Ruled By: MATANDA-MOYO J

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Law Portal
Zimbabwe

SC36-20 : TONIC MANGOMA vs THE STATE
Ruled By: MAKARAU JA, MAKONI JA and MATHONSI JA

HH117-14 : LEE-WAVERLY JOHN vs THE STATE and RODGERS KACHAMBWA
Ruled By: MATANDA-MOYO J