Court name
Supreme Court of Zimbabwe
Case number
SC 93 of 2004
Criminal Appeal 114 of 2003

S v Chikanga (14/03) (SC 93 of 2004, Criminal Appeal 114 of 2003) [2004] ZWSC 93 (18 October 2004);

Law report citations
Media neutral citation
[2004] ZWSC 93
















DISTRIBUTABLE
(76)


Judgment
No. SC 93/04


Criminal
Appeal No. 114/03











GEORGE
TANYANYIWA CHIKANGA v THE STATE








SUPREME
COURT OF ZIMBABWE


HARARE
OCTOBER 19, 2004








Mr
Mazonde
, for the
applicant





No
appearance for the respondent











In
Chambers, in terms of rule 20 (5) of the Supreme Court Rules.









ZIYAMBI
JA: This is an application for an extension of time in which to note
an appeal. Both counsel having filed heads of argument,
the matter
was set down for hearing before me but on the hearing date Mr

Mazonde
who appeared
on behalf of the applicant, advised that Counsel for the State was
out of town and that they had agreed that the matter
should be dealt
with in terms of rule 20 of the Rules of this Court and decided upon
consideration of the papers. Sub rule (5)
of Rule 20 provides as
follows:





“After
hearing the applicant and the Attorney-General or, if they do not
appear, on consideration of the papers, a judge may, subject
to the
provisions of subsection (3) of s 19 of the Act, grant or refuse the
application. If the application is granted, and the
case is one in
which leave to appeal is necessary, the judge may, thereupon, grant
or refuse leave to appeal:






Provided
that leave to appeal shall not be granted in terms of this subrule
unless application for leave to appeal has been made to
the High
Court and has been refused.”







The facts forming
the background of this application are as follows:





The
applicant was convicted by the High Court of armed robbery and was
sentenced, on 18 July 2001, to undergo a term of 16 years
imprisonment.
On the same date, the applicant who was represented by
counsel, applied for and was granted leave to appeal by the trial
court.






Thereafter,
so the applicant averred, nothing further was heard of the appeal
until the applicant enquired from his legal practitioner
in February
2003 nineteen months later, as to why the appeal had not been set
down for hearing. It was then that he was advised by
his legal
practitioner that no appeal had been noted ‘for no apparent
reason’. He averred that he had been deprived of his opportunity
to defend his innocence due to the negligence of his former legal
practitioner.






In determining applications of this nature the extent of
the delay and the prospects of success on appeal should the
application be
granted are the two main factors to be considered. In
terms of sub rule (3) of Rule 17 of the rules of this Court, an
appeal should
have been noted in this Court within 10 days of the
date on which the applicant was sentenced.





This application was filed on 15
April 2003. A delay of 1 year and 9 months is inordinate and, unless
there is a cogent explanation
for the delay and strong prospects of
success on appeal, the application must fail. Further;





“a
long delay will disincline a Court from granting relief unless the
applicant has throughout exhibited a desire to prosecute his
appeal
(
Edwards v Niven & Rowe
NNO
& Ors 1966 (2) SA 709) and there are very
reasonable prospects of success on appeal.”





See
Tendai Nemakuyu v The State
SC 146/87





See also
Jack Peche v Commissioner of Taxes
HCH 283/82.





In R v
Humanikwa
1968 (2) RLR 42 at p 44 BEADLE CJ remarked:





“It
is trite law that the longer the delay in applying the condonation in
the late noting of an appeal the more certain the court must
be that
there is a real chance of the appeal succeeding before it will grant
leave. Conversely, the shorter the period of the delay
the less
satisfied the court need be before granting leave. Where a delay
has been as short as three days, I would be disposed
to grant leave
to appeal if the court was satisfied that the applicant had no more
than an arguable case.”






The explanation for the delay in casu is by no means a cogent
one. Although blame has been placed on the applicant’s former legal
practitioner, no affidavit from that
legal practitioner is filed with
the papers. The applicant’s averment that the fault was to be
attributed to the negligence of
his legal practitioner is totally
unsubstantiated and I find it difficult to accept that the applicant,
having briefed a legal practitioner
to prosecute his appeal would
wait for 19 months before enquiring as to the progress of the appeal.
In any event where serious allegations
of this nature are made
against a legal practitioner it is incumbent on the applicant to
afford the legal practitioner an opportunity
to offer an explanation
or otherwise respond to the allegations. There is nothing on the
record to show that the legal practitioner
was approached before this
application was made. In such circumstances it is difficult to escape
the inference that the applicant
has not been honest with the court
and that an explanation from the legal practitioner might well be to
his disadvantage.






In any event, even if I were to
accept that that the legal practitioner was negligent in failing to
note the appeal,





“ …
because of the increase in applications for condonation
on precisely this ground the courts are less inclined to take a same
benevolent
view of the negligence of applicant’s legal
practitioner.”





See
Tendai Nemakuyu v The State supra; and





“There
is a limit beyond which a litigant cannot escape the results of his
attorney’s lack of diligence or the insufficiency of the
explanation tendered. To hold otherwise might have a disastrous
effect upon the observance of the Rules of this Court.
Considerations
ad
misericordiam should not be allowed to become an invitation to
laxity”;






See Saloojee and Another v Minister of Community Development
1965 (2) SA 135 at 141C.






The applicant is by no means blameless. He waited for nearly two
years before enquiring as to the progress of his appeal. In view
of
this it cannot be said that he evinced an intention throughout to
prosecute his appeal. As KORSAH JA remarked in Tendai Nemakuyu v
The State
supra:





“for
a party who had expressed the intention to appeal against a judgment
read in open court the delay of six months between the handing
down
of the judgment and the filing of this application appears to me to
be inordinately long and one which calls for cogent and
very sound
explanation”.








In the present case the delay is 21
months and the explanation given by the applicant is neither cogent
nor sound.






With
the above in mind I examine the prospects of success. The applicant
alleged that he was convicted, not on proof beyond reasonable
doubt,
but on a balance of probabilities. A reading of the record shows the
contrary. The applicant was found by the court to be
one of a gang
of some three or four persons who, with brandishing pistols and an
automatic rifle, robbed the Birmingham road branch
of First Bank of
$221 000 on the morning of 16 September 2000. The robbery was,
according to the court
a quo:






“vividly
captured on the sophisticated multi-camera video surveillance system
employed by the bank.







The
robbery from the video footage shown in court would have been a
terrifying experience for the persons, customers and employees
of the
bank at the time. Thankfully no shots were fired and no one was
injured but the images are chilling in particular the footage
of a
teller being threatened with a pistol held to his temple in an
attempt to force him to open the strong room door.” (Record
p 24).












The applicant denied any involvement whatsoever in the robbery.
However, not only was he identified in court by a credible witness
as
having been a participant in the robbery but on viewing the video
recording of the robbery produced in evidence as well as the
photographs of the applicant which were extracted therefrom, the
court was satisfied that the applicant was one of the persons
depicted
in the video as participating in the robbery.






The robbers wore over their faces
mutton cloth with three holes cut therein for the eyes and mouth.
Upon his arrest one such piece
of mutton cloth was found in the
applicant’s possession. The court was satisfied on the evidence
before it that the state had established
beyond reasonable doubt the
guilt of the applicant.





It seems to me that the conviction is
unassailable and the applicant’s prospects of success on appeal, if
any, are very slim. In
the circumstances the applicant has not made
out a case for the grant of the indulgence sought and the application
is dismissed.














T.H.
Chitapi Legal Practitioners
, applicant’s legal practitioners


Attorney-General’s Office, respondent's
legal practitioners