Biscend Zhuwao v The State

The applicant and his co-accused were convicted on 3 October 2017 by the Bindura Magistrates Court of 3 counts of robbery as defined in section 126(1)(a) of the Criminal Law (Codification and Reform) Act. They were each sentenced to 10 years imprisonment of which 2 years were suspended for 5 years on condition of good behaviour. The robberies occurred on two separate occasions: counts 1 and 2 on 11 August 2016 in Shamva (involving two gold-buying agents who knew the applicant and co-accused as they had been regular customers for three months), and count 5 on 5 October 2016 at Mazowe River. In counts 1 and 2, the applicant and accomplices robbed gold-buying agents using weapons including a black pistol, okapi knives and a machete, stealing property worth US$15,560.00 and seriously injuring one complainant. In count 5, they impersonated police officers and stole property worth US$1,800.00. The applicant filed this application for condonation for late noting of appeal on 18 June 2021, approximately four years after conviction and sentence, claiming ignorance of the law and COVID-19 restrictions as reasons for delay.

• Whether condonation should be granted for the inordinate delay in noting an appeal against conviction and sentence
• Whether extension of time to note the appeal should be granted
• Whether leave to prosecute the appeal in person should be granted
• Whether a reasonable explanation had been provided for the delay of approximately four years
• Whether there were reasonable prospects of success in the intended appeal against conviction
• Whether there were reasonable prospects of success in the intended appeal against sentence
• Whether the charges were improperly split by charging two counts of robbery for two complainants robbed in the same incident

The application for condonation for late noting of an appeal against both conviction and sentence, extension of time within which to appeal and leave to prosecute the appeal in person was dismissed.

When seeking condonation for late noting of an appeal, an applicant must provide a reasonable explanation for the delay, including specific dates enabling the court to assess the reasonableness of the explanation. Ignorance of the law cannot constitute a reasonable explanation for failure to note an appeal timeously. Where an application for condonation is itself filed late, there is an additional requirement to explain why the condonation application was not brought without undue delay. Deliberate omission of material dates in a condonation application will result in dismissal. Prospects of success on appeal remain a critical factor in determining whether to grant condonation. The principle that everyone is presumed to know the law applies even to self-represented litigants. Courts have a gate-keeping function and must consider the need for finality in litigation when determining applications for condonation brought years after conviction and sentence.

The court observed that with remission of a third of the effective sentence by prison authorities, the applicant had just over a year remaining to serve, suggesting the applicant had initially accepted both conviction and sentence. The court made approving reference to the principles in S v Madondo 1989(1) ZLR 300(H) regarding the inherently serious nature of robbery and the need for sentences to reflect that robbery is a particularly reprehensible form of criminal behaviour involving premeditation, criminal resolve, brazen execution, attack on personal security, and being a terrifying and degrading experience. The court noted that documents received at Chikurubi Maximum Prison are checked by prison authorities who affix date-stamps, and the absence of such a stamp undermined the applicant's claim about when he received the record. The court observed that the sentence imposed was actually very lenient given the aggravating circumstances, rather than being manifestly harsh.

This case is significant in Zimbabwean criminal procedure law as it reinforces strict requirements for applications for condonation for late noting of appeals. It establishes that: (1) ignorance of the law is not an acceptable excuse for delay; (2) applicants seeking condonation must provide specific dates and a detailed chronology to enable the court to assess reasonableness of delay; (3) deliberate omission of material dates will result in dismissal; (4) even when out of time, applications for condonation must be brought without undue delay and additional explanation is required for late filing of the condonation application itself; (5) courts will not entertain stale litigation or engage in academic exercises; (6) the need for finality in litigation is paramount; and (7) prospects of success on appeal remain a critical consideration in condonation applications. The judgment also reinforces sentencing principles for robbery, particularly gang robbery involving weapons, serious injuries, and breach of trust.