The
applicant seeks condonation for the late filing of a Notice of Appeal against
sentence only.
The
sentence was imposed on 12 October 2004.
The
applicant did not appeal for a period of close to five (5) years. He now seeks
to do so, hence this application.
His
explanation for the delay in filing his Notice of Appeal is, firstly, ignorance
of the law. Secondly, he states that he did not have the financial muscle to
assert his legal rights. Finally, that at some stage the record could not be
located for a period of time.
The
State does not challenge the explanation for delay.
The
opposition of the application is based on the lack of the reasonable prospects
of success of the appeal. In other words, it is the State's contention that the
appeal is devoid of any reasonable prospects, and on that basis it should fail.
The
factors to be considered in an application for extention of time within which
to note an appeal are aptly captured in “Criminal Procedure in Zimbabwe” by
J.R.ROWLAND. At..., the author stated –
“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, 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.” – R v Humanikwa 1968 (2) RLR 42 (A); R v Viringanayi
1969 (2) RLR 509 (A); Kombayi v Berkhout 1988 (1) ZLR (S); S v Franco and
Others 1974 (2) RLR 39 (A); and S v Moyo (1) 1978 RLR 316 (G).
In
casu, as alluded to above, the delay is almost five (5) years. This is an
inordinate delay.
For
the first four years, his explanation for the delay is ignorance of the law. In
paragraph 5 of his founding affidavit, he states -
“When
I was in prison in 2008 (four years after the date of sentence), we engaged in
discussions with other convicts and I narrated my fate, and they questioned why
I did not appeal. I told them I did not know I had that right. They pointed out
that I could, and this is when I asked the husband to my wife's sister if he
could help as he is a police officer.”
In
mid 2008, the Clerk of the Regional Court was approached, and the record of
proceedings could not be located until July 2009.
The
respondent does not dispute this explanation for the delay.
The
reason for the delay is convincing, but the delay is very long.
The
main factor advanced by the respondent is that the chances of success are
neither great nor does the applicant have an arguable case.
I
should point out that this matter was subjected to automatic review, and my
brother Judge confirmed the proceedings on 22 November 2004.
There
are no prospects of success on appeal, and after the delay of close to five (5)
years, it would not be in accordance with justice to grant this application.
Accordingly, this application is dismissed.
