OMERJEE J: On 28 July 2004 the appellant was arraigned
before the Provincial Magistrates Court,
Harare on two charges. Firstly, he was charged with contravening s 4
(2) (b) of the Firearms Act [Cap 10:09]. Secondly, he was charged, with contravening s
13 (1) (e) of the Public Order and Security Act [Cap 11:17].
The appellant tendered a
limited plea of attempting to contravene s 4 (2) (b) of the Firearms Act. The State declined to accept such limited
plea. In respect of count two he
tendered a plea of guilty and he was duly convicted on his own plea. The State
proceeded to trial in respect of count one.
After considering the evidence led, the court a quo returned a verdict of
guilty of attempting to contravene s 4 (2) (b) of the Firearms Act.
On 10 September 2004 the
court a quo sentenced the appellant
as follows:-
In respect of count one 3 years
imprisonment. In respect of count two 4 years imprisonment. The sentences were to
run consecutively. In addition the court
ordered the forfeiture of USD180 000 being the money paid for the purchase of
the weapons, the subject matter of both counts.
A further forfeiture order of a Boeing 727 aircraft brought into the
country at the behest of the appellant intended to be used to ferry weapons out
of Zimbabwe
was made by the trial court.
In these
proceedings, the appellant was represented by Mr Samkange
On
24 September 2004, the appellant through his legal practitioners noted an
appeal against both conviction and sentence.
He also instituted formal review of proceedings before this court in
November 2004. In those papers as
amended, the appellant sought a reduction in respect of the sentence
imposed. But in his submissions to the
reviewing court he sought also to challenge the propriety of conviction in
respect of count one. CHITAKUNYE J in
the course of the review confirmed the conviction in respect of both
counts. The learned judge also made an
order that the separate sentences were to run concurrently. The net effect of this order was that the
appellant was sentenced to four years imprisonment. (See case number HC 12397/04)
It is common cause that the appellant's
legal practitioners filed Heads of argument on 16 December 2005 in respect of
the appeal. In these Heads the
appellant's legal practitioner took issue with the propriety of the sentence
imposed only and made no submissions in regard to conviction.
The State responded in its Heads filed on
6 January, 2006. The appellant it is not
in dispute served his full sentence before the appeal was prosecuted. Following the institution of formal
extradition proceedings, the appellant was then extradited to the requesting
country in or about January, 2008.
This appeal has been pending since the
latter part of 2004. Heads of argument
on behalf of both the appellant and respondent respectively were filed by early
January 2006. It is a trite proposition
of the law that the appellant's legal practitioners bear an onus to ensure the
expeditious hearing of a matter awaiting appeal. A period of five years has elapsed without
the appeal being heard. Significantly,
no reasons, let alone cogent reasons have been advanced by the appellant's
legal practitioners for the inordinate delay in the hearing of this case. Furthermore, no reasons are discernible from
the record for the lengthy delay that has occurred.
There is a letter from the appellant's
legal practitioners dated 1 September 2006.
Part of the letter, which was addressed to the criminal registrar reads
as follows:
“We
refer to the above notice of hearing in which you indicated that the appeal
will be heard on 14 September 2006, could you please remove it from the roll
because Mr Samkange will be engaged
in the High Court in the matter of the State
vs Dr C. Kuruneri which has been set down to be heard from 11 September to
the end of September 2006.
Our
client would want our Mr Samkange to
personally argue the appeal on his behalf.
Please note that there will be no prejudice to the State because our
client is already serving sentence, which he is appealing against and is due
for release on 11 May 2007. Should he
advise to us to have the matter heard before completion of the sentence we will
approach you for a new set down date. In
the interim period please keep it in abeyance.”
It is apparent from the narration of events that there
has been an inordinate delay in the
prosecution
of this appeal. Such delay is
attributable to the appellant through his legal practitioner Mr Samkange. The appellant served the sentence imposed
upon him and he has since departed from this jurisdiction. It follows that the lengthy delay of five years
before prosecuting an appeal against sentence renders such proceedings to be of
academic interest. In casu the appellant's legal practitioners'
quest to have this appeal determined after a delay of five years constitutes
abuse of court process. Such conduct is
not expected of a senior and experienced legal practitioner like Mr Samkange.
To compound matters the appellant's legal
practitioner Mr Samkange on 5 January
2011 filed a Notice of Withdrawal with the Registrar in the following terms:
“Take
notice that the appellant hereby withdraws its appeal filed with this court on
24 September 2004 and each party bears its own costs.”
A
day later on 6 January 2011 the same legal practitioner filed a Notice of
withdrawal where strangely it is stated as follows:
“Take
Notice that the appellant hereby withdraws his appeal against sentence only
filed with this court on 24 September 2004 but persists with the appeal against
conviction.”
The
lengthy and detailed Heads of Argument filed by Mr Samkange on 16 December 2005 are restricted to an appeal against
sentence only and do not allude to the issue of conviction. There is no appeal against conviction in
these Heads of Argument. The effect of
the Notice of withdrawal filed by Mr Samkange
of 5 January, is that there is no appeal pending before this court. There is no application as required by law
for reinstatement of this appeal.
Instead, Mr Samkange filed a notice of withdrawal against sentence only in
which he purports to reinstate the appeal against conviction. In view of this turn of events this court
mero motu raised the issue as to whether or not there was an appeal pending
before this court. At the hearing Mr Samkange
was at pains to justify this defective appeal on the ground that the
original notice of appeal also challenged the appellant's conviction.
However, when it was pointed out that his
original Heads of Argument never dwelt with the issue of conviction, Mr Samkange accepted that to be so and
stated he took full blame for the anomaly.
He also conceded that the initial grounds of appeal were inadequate and
thus he filed “additional grounds” a day before the hearing.
It is trite that there are rules of court
that govern when a notice of appeal should be filed or when it can be
amended. When this was pointed out to Mr
Samkange, he submitted that there is
no rule governing the amendment of a notice of appeal. He made this submission in support of an
“addendum to the grounds of appeal against conviction.” That was filed a day before the hearing together
with an addendum to the Heads of argument.
Despite the withdrawal of the appeal Mr Samkange also submitted that a criminal
appeal does not lapse. Again, having
been pressed on the fact that the original Heads of argument did not address
the purported appeal against conviction, Mr Samkange
then submitted that he ought to have applied for condonation of late filing of
Heads of argument titled “appellant's “addendum to heads of argument”.
This court is of the view that there is
clearly no proper appeal pending before this court. The filing of these additional documents
demonstrates clear abuse of court process on the part of Mr Samkange. For that reason this court is unable to
entertain this purported appeal.
After all these anomalies were put to Mr Samkange, he ultimately sought a
postponement in order for him to file an application for condonation. In the view of this court Mr Samkange's conduct lacked the ethical
standards expected of a senior legal practitioner. Such conduct smacks of a clear disregard and
disdain of court rules and proceedings.
It reveals tardiness and shoddiness on his part.
Such conduct constitutes a clear abuse of
court process. The Registrar is directed
to furnish a copy of this judgment to the Law Society of Zimbabwe.
MUSAKWA
J: Agrees……………………………………………….
Messrs Byron Venturas & Partners,
appellant's legal practitioners
Attorney General's
Office, respondent's legal practitioners
