Brighton Ndebele v The State

The applicant, Brighton Ndebele, was a Pastor of the Seventh Day Adventist Church who was convicted on 5 October 2016 of contravening section 67(1)(a) of the Criminal Law Codification and Reform Act Chapter 9:23 (indecent assault). The allegations were that he hugged and caressed the back and buttocks of Ntokozo Tachiona, a married female congregant and Head Superintendent of the church, with indecent intent and against her consent on 20 April 2016 at her office. The applicant was sentenced to 315 hours of community service, which he completed. He left for South Africa on 31 March 2017 and returned on 26 December 2017. On 18 March 2018, approximately 16 months after sentencing, he filed an application for condonation of the late filing of an appeal. The applicant claimed the hug was consensual and that the complainant later filed civil suits against him and his former employer seeking $250,000 in damages.

• Whether the applicant showed sufficient cause for condonation of the late filing of an appeal
• What factors should be considered in determining an application for condonation
• Whether the degree of non-compliance with the rules was acceptable
• Whether the applicant provided a satisfactory explanation for the delay
• Whether the applicant had reasonable prospects of success on appeal
• Whether fresh evidence should be admitted on appeal

The application for condonation of late noting of an appeal was dismissed.

For condonation of late filing of an appeal to be granted, an applicant must satisfy the court that there is sufficient cause to excuse non-compliance with the rules. The court must exercise its discretion judicially by considering all relevant factors including: the degree of non-compliance, the explanation for delay, the importance of the case, prospects of success, the respondent's interest in finality, court convenience, and avoiding unnecessary delay in the administration of justice. An inordinate delay (16 months where 10 days was required) coupled with unsatisfactory, contradictory explanations and no prospects of success on appeal will result in refusal of condonation. The principle of finality in litigation applies with particular force where the crime affects the dignity and emotional wellbeing of the victim.

The court observed that even if a legal practitioner is negligent, the client will be adversely affected by this negligence because the client freely chose that lawyer - the client's liability for a legal practitioner's conduct is the same as if the client had performed the service himself. The court also noted that it would be unreasonable to believe that a sophisticated person like the applicant (a pastor) would not appreciate the need to appeal, particularly when he maintained his innocence throughout the trial. The court commented that where a crime is against the person, affecting dignity or causing emotional stress, it is desirable that there be finality to enable the victim to move on the recovery path. The court also observed that it was difficult to believe how a Christian, conservative, married professional woman would fabricate allegations about her pastor of two years caressing her buttocks, particularly when there was no motive to do so and she had reputation and business interests to protect.

This case reinforces the stringent approach Zimbabwean courts take to applications for condonation of late filing of appeals. It illustrates that: (1) courts will not grant condonation as a mere formality but require sufficient and satisfactory grounds; (2) contradictory and implausible explanations for delay will be rejected; (3) a delay of 16 months is inordinate and excessive; (4) lack of legal fees alone is not a sufficient explanation without detailed supporting information; (5) the finality of litigation is particularly important in cases affecting the dignity and emotional wellbeing of victims of crimes against the person; (6) fresh evidence will not be admitted on appeal where it was available at trial and does not meet the established legal test; and (7) appellate courts will be slow to interfere with credibility findings of trial courts where those findings are reasonable on the evidence.