IN
CHAMBERS
CHITAKUNYE
AJA: On
9 April 2021 I struck off this matter from the roll and gave reasons
extempore. The applicant has requested for written reason for my
decision. These are the reasons.
In
this application the applicant seeks to challenge the decision of the
High Court handed down on 3 May 2018 dismissing his application for
condonation and leave to appeal in person. The application was
purportedly filed in terms of r21 of the Supreme Court Rules 2018.
The
applicant seeks an order in the following terms:
1.
The application against refusal for condonation for the late filing
of an appeal be and is hereby granted.
2.
The appellant is hereby granted leave to prosecute an appeal in
person to the High Court.
3.
The appellant shall file his notice of appeal by the Registrar of the
High Court.
BACKGROUND
The
applicant was convicted for contravening section 65(1) of the
Criminal Law (Codification and Reform) Act [Chapter
9.23]
and sentenced to 20 years imprisonment of which 2 years were
suspended on condition of future good behaviour on 19 November 2013
by a Regional Magistrate at Chinhoyi Regional Court.
He
did not appeal against both conviction and sentence within the
requisite period.
On
21 March 2017, the applicant applied for condonation of late filing
of an appeal and leave to appeal in person with the High Court.
That
application was dismissed by CHATUKUTA J on 3 May 2018 under case
number CON 61/17.
On
29 May 2018 the applicant filed a similar application before the same
court.
It
is pertinent to note that in this second application the applicant
did not disclose the fact that he had a similar application dismissed
on 3 May 2018 by the same court.
The
respondent did not file any response to that second application.
This
second application was heard and granted by MUNANGATI-MANONGWA J on
22 July 2019 under case number CON 142/18.
The
applicant did not, however, proceed to file the appeal despite the
granting of that order. Instead on 13 August 2020 the applicant
filed another application in case number CON 308/20 for extension of
time within which to file the appeal. This application sought an
extension of time within which to comply with the order granted in
CON 142/18.
In
response to this latest application the respondent contended that in
case number CON 142/18 the applicant did not disclose to the court
that his initial application had been dismissed in CON 61/17 on 3 May
2018. The respondent thus contended that the order in case number CON
142/18 was a nullity as the court was functus
officio.
As
a consequence TAGU J dismissed the application to extend the order in
CON 142/18 on 3 November 2020.
The
applicant having considered and conceded that both orders by
MUNANGATI-MANONGWA J and TAGU J were invalid at law, decided to
approach this Court in a bid to challenge the order of 3 May 2018.
In
that case (CON 61/17) the Judge had found that the period of delay of
2 and a half years (it was in fact 3 and a half years) was
inordinate, and that the reasons for the delay were also
contradictory and were not reasonable in the circumstances.
The
Judge a
quo
also held that there were no prospects of success on appeal against
both conviction and sentence as such the application was dismissed in
toto.
It
is that determination that the applicant seeks to challenge but he is
out of time hence this application titled 'application against
refusal of condonation and leave to prosecute his appeal in person in
terms of r21 of the Supreme Court Rules 2018'.
This
application was filed on 23 December 2020 some two years and seven
months after the determination in question. The delay is certainly
inordinate.
In
his submissions the applicant averred that he was in fact appealing
against the court a
quo's
determination of 3 May 2018. It was in this regard that he indicated
that this application was in terms of r21 of the Supreme Court Rules
2018 as he had not appealed in time.
ISSUES
FOR DETERMINATION
1.
Whether or not there is a proper application before this Court.
2.
Whether or not the applicant has established a good cause for the
granting of the application.
APPLICATION
OF THE LAW TO THE FACTS
This
application was purportedly filed in terms of r21 of the aforesaid
rules. That rule provides that:
“Application
for extension of time or leave to appeal out of time
(1)
A person who wishes to apply for an extension of time in which to
institute an appeal in terms of rule 18 or for leave to appeal in
terms of rule 20 shall do so in Form 5 signed by himself or herself
or his or her legal representative.
(2)
The form referred to in subrule (1) shall be accompanied either by
the documents required in terms of subrule (1) of rule 18 or the
documents required in terms of subrule (2) of rule 20, whichever rule
is applicable, together with an affidavit setting out why the
applicant did not institute his or her appeal or apply for leave
within the time specified.”
It
is trite that a litigant approaching this Court must provide an
acceptable explanation for failure to comply with the rules of the
court. The explanation in the founding affidavit must be bona
fide
and satisfactory.
The
applicant must give a satisfactory explanation for the delay in
noting the appeal and show that there are prospects of success in the
intended appeal.
The
application under this rule is in effect an application to appeal out
of time and is not in itself an appeal. The relief sought must relate
to the purpose of the application which is to appeal out of time.
It
is clear from the founding affidavit and the relief sought that the
applicant is at a loss as to the nature of the relief envisaged under
Rule 21 and the relief he seeks before me.
The
application ought to be for condonation of his failure to note the
appeal in time and for leave to file the appeal out of time.
The
current application was filed on 23 December 2020, two years seven
months out of time. The applicant has not sought for condonation
for the failure to comply with this Court's rules. In essence the
applicant has not tendered any reasons for the delay herein.
Without
a proper application for condonation having been made, the applicant
is therefore improperly before this Court.
In
Bonnyview
Estates (Private) Limited v Zimbabwe Platinum
Mines
(Private) Limited and Anor
SC01/05
MAKARAU
JA (as she then was) noted that:
“Condonation
is an indulgence granted when the court is satisfied that there is
good and sufficient cause for condoning the non-compliance with the
Rules. Good and sufficient cause is established by considering
cumulatively, the extent of the delay, the explanation for that delay
and the strength of the applicant's case on appeal, or the
prospects of its success. This is trite.”
See
S
v Sibanda
2001
(2) ZLR 524.
In
casu,
such a consideration is not possible as the explanation provided
pertains to the delay from the time of conviction and sentence on 19
November 2013 to the time when he filed his application for
condonation and leave to appeal in the High Court on 21 March 2017.
The
import of the applicant's case is that I must consider those
reasons favorably and grant the application that was placed before
the High Court.
The
delay that ought to have been explained clearly is the delay from 3
May 2018 to 23 December 2020 when this application was filed with the
Supreme Court.
It
is, however, discernible from the history of the matter that after
the dismissal of the first application the applicant made two
applications before the same court seeking condonation and extension
of time within which to note his appeal.
This
was, however, not the pith of his explanation before me.
These
applications were premised on misrepresentations by the applicant in
not disclosing the fate of his first application. He thus wasted time
pursuing irregular applications.
It
may also be noted that despite the granting of the second
application, albeit irregularly, the applicant did not file his
appeal until the time given for filing the appeal lapsed hence he
re-approached the same court for an extension of that lapsed order.
The
applicant was not serious.
I
am of the view that the delay from 3 May 2018 to 23 December 2020 is
inordinate and the explanation thereof is not acceptable at all. It
is simply a result of his own misrepresentation to the court a
quo
and this cannot rebound to his benefit.
It
is trite that the intended appeal must be against the decision of the
court a
quo.
The
grounds of appeal in the draft notice of appeal filed with the
application must relate to the findings by the court a
quo
in dismissing his application for condonation and leave to appeal in
person. It is from such grounds that the court will assess whether
there is an arguable case for appeal warranting a hearing of the
appeal.
It
is only upon a favorable result that an appeal will be before this
Court in terms of the filed draft notice of appeal.
It
is imperative to note that the draft notice of appeal filed with this
application is a draft notice of appeal to the High Court and not an
appeal to the Supreme Court.
It
pertains to findings by the Regional Magistrate.
In
short the notice of appeal is against the Regional Court's judgment
and not the determination by the High Court.
The
prospects of success I am enjoined to consider must relate to the
judgment of the court a
quo
on the application that had been placed before it.
The
applicant's failure to appreciate the matter before me is
epitomized by the nature of the relief he sought.
The
relief, in effect, is for the setting aside of the court a
quo's
judgment and substituting it with an order granting leave to note his
appeal in the High Court out of time and leave to prosecute the
appeal in person.
Such
a relief is incompetent as this is not an appeal but ought to be an
application to note an appeal to the Supreme Court out of time. It is
not the appeal itself.
DISPOSITION
As
the applicant was a self-actor the nature of the relief to eventually
grant would have been within my discretion had he properly set out a
case for extension of time within which to appeal. However, the
failure to proffer any acceptable explanation or justification for
steps taken after the dismissal of the initial application and the
lack of any grounds of appeal attacking the court a
quo's
judgment make it clear that there is no proper application for
extension of time within which to note an appeal in terms of r21.
The
applicant was for all intents and purposes seeking to be granted what
the court a
quo
denied him without filing a proper appeal.
Accordingly
the matter was struck off the roll.
National
Prosecuting Authority,
respondent's
legal practitioners
