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