Christopher Chigubhu v The State

The applicant was convicted and sentenced by a magistrate's court on 8 July 2019 following an unequivocal guilty plea. The record of proceedings was transcribed and signed by the trial magistrate on 19 August 2019. The applicant had a previous conviction for indecent assault with a suspended sentence. More than a year after the record was transcribed, on 21 October 2020, the applicant filed an application for condonation for late noting of appeal and leave to prosecute the appeal. The delay between the transcription of the record (August 2019) and the filing of the application (October 2020) was over a year, with no application filed during the 7-month period between August 2019 and the COVID-19 lockdown in March 2020. The applicant sought to appeal his conviction despite having entered an unequivocal guilty plea at trial.

• Whether condonation should be granted for the late noting of an appeal
• Whether leave to prosecute the appeal should be granted
• Whether the applicant's explanation for the delay was satisfactory
• Whether the applicant had prospects of success on appeal given his unequivocal guilty plea
• Whether the sentence imposed was unduly harsh

The application for condonation for late noting of appeal and leave to prosecute the appeal was dismissed.

An application for condonation for late noting of an appeal will be refused where: (1) the applicant has no prospects of success on appeal, particularly where an unequivocal guilty plea was entered at trial and there is no explanation for seeking to depart from it; (2) the delay in filing the application is inordinate and the explanation for the delay is unsatisfactory; and (3) general circumstances such as COVID-19 do not excuse delay where they do not account for the entire period of non-compliance. A court will not grant leave to appeal where the sentence imposed is not unduly harsh and meets the justice of the case, particularly where the appellant is not a first offender.

The court observed that the COVID-19 pandemic and related lockdown measures may be used as an excuse for delay in certain circumstances, but such an excuse must be properly substantiated and account for the entire period of delay. Where there is a significant period before the lockdown during which an application could have been filed, the COVID-19 excuse will be viewed as 'lame' and insufficient. The court also noted that when considering whether a sentence is unduly harsh, the court will take into account the applicant's previous convictions and criminal history, including suspended sentences for related offences.

This case illustrates the strict approach Zimbabwean courts take to applications for condonation of late appeals, particularly where: (1) the applicant entered an unequivocal guilty plea and provides no explanation for departing from it; (2) there is inordinate and unexplained delay in filing the application; (3) the prospects of success on appeal are nil; and (4) excuses such as COVID-19 are scrutinized and may be rejected where they do not account for the entire period of delay. The case reinforces the principle that condonation is not automatic and requires a satisfactory explanation for delay, reasonable prospects of success, and the interests of justice.