Court name
Harare High Court
Case number
CA CON 24 of 2011

S v Nyoni (CA CON 24 of 2011) [2011] ZWHHC 142 (24 March 2011);

Law report citations
Media neutral citation
[2011] ZWHHC 142

                                                                                                                              

 

CLEMENCE NYONI

versus

THE STATE

 

HIGH COURT OF ZIMBABWE

KUDYA J

HARARE, 25 March 2011

 

Chamber Application for condonation

 

S. Murambasvina, for the applicant

RK Tokwe, for the respondent

            KUDYA J: This is a chamber application for condonation for the late filing of an appeal that was filed on 25 February 2011. It was served on the Attorney General on 28 February 2011 whose representative filed a response on 16 March 2011. The response read:

“Be pleased to take notice that it is not intended to oppose the application. The respondent had sight of the respondent’s (sic) reasons for delay. May the relief be granted as per draft order.”

            On 25 March 2011 I dismissed the application on the basis that the applicant was in willful default and had no prospects of success on appeal. On 29 March and 10 June 2011, the applicant’s legal practitioners wrote to the registrar seeking my detailed reasons for dismissing the application. These are they:

            The applicant was convicted on his own plea of guilty of the possession of 10,75 grams of gold without a licence in violation of s 3 (1) of the Gold Trade Act [Cap 21:03]. On 9 December 2007, he was travelling in a white pick-up truck that was intercepted by police detectives along the Kadoma –Chikari road. During a search the detectives noted that he could not pronounce words properly. They searched his mouth and found a plastic paper containing the gold in question tied with a rubber band hidden under his tongue.

            In mitigation he stated that he was 30 years old and was married with 2 children. He also looked after 7 dependents one of whom was HIV+. He was employed and earned US$50.00 per week. He owned a head of cattle. He had religiously attended court on remand since his arrest in 2007.

            Thereafter the trial court properly explained to him the meaning of special circumstances particular to his case. In response he stated that he was employed from October 2007 until December 2007 by Musuwa at Lucy Mine Co-operative where he obtained the gold. He was thereafter sentenced on 14 April 2010 to the mandatory minimum sentence of 5 years imprisonment. In addition the gold was forfeited to the State and he was prohibited from entering precious metal locations within a period of 5 years.

             The founding affidavit to the applicant’s application for condonation was deposed to by his legal practitioner of record, Mr Stephen Murambasvina. Order 32 Rule 227 (4) states that:

(4) An affidavit filed

(a)        shall be made by the applicant or respondent, as the case may be, or by a person who can swear to the facts or averments set out therein;   and

(b)       may be accompanied by documents verifying the facts or averments set out in the affidavit, and any reference in this Order to an affidavit shall     be construed as including such documents.

To the extent that Mr Murambasvina deposed to what could only have been in the mind of the applicant, he was giving hearsay testimony. He could not have been in the applicant’s mind to know why he decided not to appeal. The information he gave could only have been supplied to him by the applicant. It should have been deposed to by the applicant himself and not by his legal practitioner. The deposition of those facts that were not personally known to his legal practitioner rendered them inadmissible. The averment in paragraph 5 of the founding affidavit is hearsay and is inadmissible.

            In an application for condonation a court is enjoined to consider the three factors of the length of the delay, the explanation for the delay and the prospects of success.  See Mashave & Ors v Zupco & Anor 2000 (1) ZLR 478 (SC) at 486 C-D.

 

Length of the delay

            Section 39 of the Supreme Court (Magistrates Courts) (Criminal Appeals) Rules, SI 504 of 1979 governs the time for noting appeals by an unrepresented accused person to the High Court. It reads:

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.

            The applicant was obliged to note an appeal against sentence within 5 days from 14 April 2010. He made the present application on 28 February 2011, a delay of 10 ½ months. I find the delay inordinate.

The explanation for the delay

            In the light of the provisions of Order 32 Rule 227 (4) of the Rules of Court, the applicant did not proffer any explanation for the delay. He was therefore in willful default. That he was in willful delay was demonstrated by the hearsay explanation proffered by Mr Murambasvina in the founding affidavit. It was that he did not have the means to raise legal fees. I found this to be a contrived explanation. The applicant did not explain why he did no seek to appeal in person or note what is commonly referred to as a bush appeal. He did not require funds to do so. Thus even if Mr Murambasvina’s explanation was properly before me, it would not have been sufficient to satisfy me that the applicant had a real desire to appeal against the sentence that was imposed by the trial magistrate. In the absence of an explanation for the delay, I am satisfied that the inordinate delay was willful.

The prospects of success

            The trial court properly explained the essential elements of the offence. It conducted a question and answer session with the applicant in which the applicant genuinely and advisedly pleaded guilty. It properly explained and recorded the explanation on special circumstances. The appellant responded and supplied what he believed amounted to special circumstances. The trial magistrate was not satisfied that any existed and imposed the mandatory minimum sentence. Mr Murambasvina submitted that the negligible value of the gold amounted to a special circumstance. I do not agree. The value of the gold is only known after assaying. At the time an accused has it in his custody; he does not know its value. That it may turn out to be negligible does not amount to an out of the ordinary factor. See S v Mungagavari 1984 (1) ZLR 80 (S) at 87A. The trial magistrate did not misdirect himself in his approach to sentence. The appellant has no arguable case on appeal.

 

Conclusion

            Despite the concession by the respondent, the application for condonation is dismissed, firstly because the applicant was in willful default and secondly, because there are no prospects of success on appeal.

 

Jarvis Palframan,applicant’s legal practitioners

Criminal Division of the Attorney General, respondent’s legal practitioners