Artwell Kandiyero v The State

The applicant was charged with kidnapping as defined in section 93(1)(b) of the Criminal Law (Codification and Reform) Act. On 25 June 2020, along Cecil Avenue, Selbourne Park, Bulawayo, the applicant forced a twelve-year-old complainant into his motor vehicle. While inside the vehicle, he tied the complainant's hands together with shoe laces. He drove to the gate of the complainant's home, pushed her out of the vehicle, and drove away. The applicant appeared before the Regional Court sitting at Tredgold, Bulawayo, with legal representation. He pleaded not guilty. The prosecution called five witnesses, and the applicant testified but called no witnesses. He was convicted and sentenced on 9 December 2020 to 24 months imprisonment, of which 10 months were suspended for 5 years on condition of good conduct. The applicant sought condonation for late filing of notice of appeal against both conviction and sentence, and leave to prosecute the appeal in person. The application was filed on 22 March 2021, approximately three months late.

• Whether condonation should be granted for late filing of notice of appeal
• Whether the length of delay (approximately three months) was excessive
• Whether the explanation for the delay (ignorance of law, abandonment by legal practitioners, COVID-19 lockdown measures) was adequate
• Whether there were reasonable prospects of success on appeal against conviction
• Whether there were reasonable prospects of success on appeal against sentence
• Whether the identification evidence of the complainant was reliable
• Whether the sentence imposed was disturbingly inappropriate or excessive

The application for condonation for late filing of notice of appeal was dismissed.

In applications for condonation for late filing of appeals, the court must consider three factors: (1) the length of delay; (2) the explanation for delay; and (3) the prospects of success. Even where the delay is not inordinate and the explanation is reasonable, condonation will be refused if the prospects of success are very slim or non-existent. Condonation is an indulgence and not a right obtainable on demand. Where delay is short and the reason convincing, prospects of success need not be great—an arguable case may suffice—but this does not assist where prospects are objectively very poor. In assessing prospects of success on identification evidence, courts will consider factors including: prior acquaintance between parties, lighting conditions, duration of contact, proximity, and corroborating evidence. An appellate court will only interfere with a sentence if it is disturbingly inappropriate or out of proportion to the seriousness of the offence.

The court observed that when applicant's legal practitioners abandoned him after conviction and sentence, he was left without knowledge of appeal procedures and timelines, which was a reasonable explanation for delay. The court noted that COVID-19 lockdown measures and restrictions made it difficult to file applications timeously during that period. The court made the observation that to ambush a twelve-year-old child coming from school, force her into a motor vehicle, tie her hands together, drive with her for about 100 meters, and then push her off the vehicle is particularly aggravating conduct. The court also noted that the explanation for delay must be full, detailed, accurate, and frank, accounting for every period of inactivity and showing that the applicant took available steps to avoid or curtail delay.

This case is significant in Zimbabwean criminal procedure law (relevant for comparative purposes in South African law) as it demonstrates the application of the three-factor test for condonation applications (delay, explanation, prospects of success). It illustrates that even where delay is not inordinate and the explanation is reasonable, an application will fail if there are insufficient prospects of success on appeal. The case also provides guidance on assessing identification evidence in criminal cases, particularly where there is prior acquaintance between victim and accused, and reiterates the principle that appellate courts will not interfere with sentences unless they are disturbingly inappropriate. The judgment emphasizes that condonation is an indulgence, not a right, and that all three jurisdictional factors must be satisfied.