Dereck Nkala v The State

The applicant was jointly charged with two others on two counts of robbery/carjacking as defined in section 126 of the Criminal Law (Codification and Reform) Act. He was convicted after a full trial on 4 March 2015 and sentenced to 10 years imprisonment on each count (20 years total), with 5 years suspended on conditions. The applicant filed an application for condonation for late filing of a review application on 23 June 2017, some 26 months after conviction. He pleaded not guilty at trial. The State called six witnesses including two complainants. The robberies occurred at night on 4 December 2014 (count 1) and 15 December 2014 (count 2). Evidence showed the applicant employed a witness to drive one of the stolen vehicles, collected hire money daily, swore a false affidavit claiming ownership of a Honda Fit, and was paid purchase prices by buyers of both stolen vehicles. The applicant's legal practitioner filed a sworn affidavit while the applicant filed an unsigned and unsworn draft founding affidavit.

• Whether condonation should be granted for the late filing of a review application 26 months after conviction
• Whether the delay was adequately explained by lack of financial means
• Whether the applicant had prospects of success in the review application
• Whether the trial court committed irregularities in recording a guilty plea
• Whether the trial court erred in admitting dock identification evidence without a prior identification parade
• Whether the trial court exercised its sentencing discretion irrationally by not treating both counts as one for sentencing purposes

The application for condonation of late noting of an application for review was dismissed. The court noted that the application was riddled with lies and had no prospects of success.

An application for condonation of late filing of review proceedings will be dismissed where: (1) the delay is inordinate (26 months versus the 8-week rule requirement); (2) the explanation for the delay is unsatisfactory and unsubstantiated; (3) there are no prospects of success on the merits; and (4) the application contains false allegations. When reviewing conviction, independent corroborative evidence can properly support a conviction even where identification evidence alone is tenuous. In sentencing for multiple offences of the same nature, separate sentences are appropriate where the offences are not closely linked in time, and such an approach does not constitute an irregular exercise of sentencing discretion. The court has discretion to grant condonation when principles of justice and fair play demand it, but in cases of flagrant breach of rules without acceptable explanation, condonation may be refused regardless of merits.

Takuva J made strong observations about the increasing number of applications for condonation and other relief arising from delays by litigants or their lawyers. The court quoted with approval the statement from Ndebele v Ncube that "We are bombarded with excuses for failure to act. We are beginning to hear more appeals for charity than for justice. Incompetence is becoming a growth industry." The judge characterized the applicant as "a serial robber who in mitigation described his nefarious escapades as 'piece jobs'" and noted that the applicant "did not exhibit the same candidness to his legal practitioner." The court also commented on the impropriety of the applicant filing an unsigned and unsworn draft founding affidavit. The judgment emphasizes the policy of finality in litigation and warns the legal profession to be more vigilant rather than relying on the court's indulgence.

This case reinforces the strict approach Zimbabwean courts take to applications for condonation of late filing, particularly in criminal review proceedings. It emphasizes that: (1) inordinate delays (26 months) require compelling and substantiated explanations; (2) unsubstantiated claims of financial hardship are insufficient; (3) condonation will be refused where there are flagrant breaches of rules and no prospects of success on the merits; (4) applicants must be vigilant and not rely on the court's charity; (5) false allegations of procedural irregularities will be treated harshly; and (6) independent evidence can overcome weaknesses in identification evidence. The judgment cites the principle "vigilantibus non dormientibus jura subveniunt" (the law helps the vigilant, not the sluggard) and warns against the growing trend of incompetence becoming "a growth industry" in legal practice.