S v Zingani (REF CRB MBARE 4029 of 2011) [2015] ZWHHC 154 (10 February 2015)

1 HH 154-15 CON263/14 Ref Case No. CRB MBARE 4029/11 AARON ZINGANI versus THE STATE HIGH COURT OF ZIMBABWE TAGU J HARARE, 19 November 2014 and 11 February 2015 Chamber Application For Late Filing Of Notice Of Appeal S. Murambatsvina, for applicant R. Chikosha, for respondent TAGU J: On 19 November 2014 I perused the papers filed of record and dismissed a Chamber Application for Condonation of late filing of notice of appeal against sentence only. I have been asked to comment following a note written by the applicant’s legal practitioners, wherein they said they were anticipating filing an answering affidavit and heads of argument in view of the respondent’s opposition to the application. The following is my comment. The salient features of this case were that the applicant was convicted on his own plea of guilty to five (5) counts of Theft as defined in s 131 of the Criminal Law (Codification and Reform) Act [Chapter 9:23]. He was sentenced by a Mbare Magistrate on 29 May 2013. All the five counts were taken as one for purposes of sentence and he was slapped with a 5 year term of imprisonment of which 2 years imprisonment were suspended for 5 years on the usual condition of future good behaviour. The applicant who was employed by the complainant as an accounts clerk had stolen a total of $ 3 617.13 which comprised of salaries for other employees. In dismissing the application without waiting for supplementary submissions I took into account the length of the delay, reasons advanced for the delay and the chance of the appeal succeeding. The applicant was sentenced on 29 May 2013. The application was filed on 24 of October 2014. This was more than one and half years later. HH 154-15 CON263/14 Ref Case No. CRB MBARE 4029/11 Rules 34 and 39 of the Supreme Court (Magistrates Courts) (Criminal Appeals) Rules 1979, govern the noting of appeals against sentences. They provide as follows- “APPEAL AGAINST SENTENCE BY CONVICTED PERSON WHO IS LEGALLY REPRESENTED 33……………………………… 34. Noting of appeal (1) 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 setting out clearly and specifically the grounds of the appeal and giving for the purpose of service the address of his legal representative or, if a legal representative has yet to be appointed, the address of the appellant:” On the other hand r 39 says – ‘‘APPEAL AGAINST SENTENCE BY CONVICTED PERSON IN PERSON 38………………………………….. 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” In casu, the delay is almost one and half years. To me this is an inordinate delay. His explanation for the delay is financial constraints. In para(s) 5.2 to 5.4 of his founding affidavit the applicant stated that- “5.2 Whilst I was aware that I should institute such appeal within five (5) days of being sentenced, I was unable to, because of dire financial constraints. 5.3 The theft in question that I committed resulted in my loss of employment, hence my failure to raise money with which I would approach lawyers with instructions to appeal at this honourable court against my said sentence. 5.4 By the time that my unemployed wife managed to raise a paltry sum with which she approached my current legal practitioners, the time within which I should have appealed had long expired/ lapsed, hence my present application.” In my view the delay was not due to ignorance of the law. If the applicant was desirous to appeal he had a choice to engage a lawyer and proceed in terms of r 34, or to proceed in terms of r 39 and prosecute his appeal in person. The reason for the delay was therefore unreasonable. HH 154-15 CON263/14 Ref Case No. CRB MBARE 4029/11 I carefully looked at the facts, the reasons given by the trial magistrate and the ultimate sentence that was imposed. All the 5 counts were treated as one. This was a serious theft from employer on a number of occasions. There was a breach of trust reposed on the applicant by his employer. A total of $ 3617.13 was stolen of which nothing was recovered. The sentence imposed was in line with decided cases. The trial magistrate judiciously balanced the mitigatory and aggravatory factors. There are no prospects of success on appeal. It would have been an exercise in futility to ask for heads of arguments as this was not going to change anything. In coming to the decision as I did I took into account the wise words of JR Rowland in Criminal Procedure in Zimbabwe, where, in stating the factors to be considered in an application of this nature, he said- “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 is short 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”. See the cases of S v Franco and Others 1974 (2) RLR 38 (A) and S v Moyo (1) 1978 RLR 316 (G). In this case, the delay was too long, the reason for the delay was unsatisfactory and the chance of success was nil. Accordingly, the application is dismissed. Jarvis Palframan, applicant’s legal practitioners. National Prosecuting Authority, respondent’s legal practitioners