Dominic Tichaona Tichawangana v The State

The applicant appeared before a Regional Magistrate at Tredgold, Bulawayo on 15 November 2017 facing three counts of armed robbery and one count of escaping from lawful custody. After a lengthy trial, he was convicted on all charges and sentenced to 22 years imprisonment with 8 years suspended for 5 years on conditions of good conduct. Count 1: On 29 July 2017, applicant and two associates lured taxi driver Sylvester Chitandawata from Pelandaba Township to the City Centre. While in the taxi, they stripped the complainant, strangled him, robbed him of cash and mobile phone, and left him naked on the roadside, driving away in his Toyota Raum. The complainant knew the applicant as a tenant at a property where he resided in Makokoba. Count 2: Complainant Ndumiso Ndlovu picked up three men in his white Honda Fit. In Nketa suburb, he was manhandled, robbed of cash and mobile phone, moved to the rear seat, threatened with a knife and firearm, tied up with seat belts and dumped. He later untied himself and reported to police. Count 3: On 2 August 2017, applicant and associates attended Moriah Guest Lodge where Robert Chinemurumbi was working as Manager. They pretended to want a booking, left, then returned at 2200 hours. One accomplice produced a firearm, ordered complainant to lie down, demanded cash, robbed him of US$50 and a mobile phone, and locked him in a toilet. The mobile phone recovery led to arrests. Count 4: On 28 August 2017, at Ntabazinduna Plaza tollgate, applicant and Farai Nhiwatiwa escaped from lawful custody after removing leg irons and handcuffs while being transported for indications. The matter concluded on 17 November 2017. The application for condonation was dated 13 November 2019, nearly two years later.

• Whether condonation should be granted for the late noting of an appeal nearly two years after conviction
• Whether the applicant provided a reasonable explanation for the delay in noting the appeal
• Whether the applicant demonstrated reasonable prospects of success on appeal
• Whether recognizable grounds of appeal existed
• Whether the application constituted an abuse of court process

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

In an application for condonation for the late noting of an appeal, the application must show ex facie the grounds of appeal and the explanation for the delay. The court must consider the factors laid down in Kombayi v Berkhout 1998 (1) ZLR 53 (S): (1) the length of the delay, (2) the explanation for the delay, and (3) the applicant's prospects of success in the contemplated appeal. Condonation is not a formality and courts will not indulge an applicant who does not make full disclosure of the basis of the application. An application for condonation that fails to demonstrate reasonable prospects of success, provides no recognizable grounds of appeal, and offers no reasonable explanation for delay constitutes an abuse of court process and will be dismissed.

The court expressed concern about the recent upsurge in applications for condonation with no merit, stating: "While every litigant enjoys the right to seek condonation, the courts should not be flooded with countless applications for condonation with no merit. This is an abuse of court process and the court must emphasise that only deserving cases for condonation for non-compliance with the rules of court will be entertained." The court also observed regarding the escape from custody charge that "It is no defence to the charge of unlawful escape from custody to assert that the escape itself was orchestrated by some other third party," rejecting the applicant's contention that police had engineered the escape in exchange for a motor vehicle inducement.

This case reinforces important principles regarding applications for condonation for late noting of appeals in Zimbabwean criminal procedure. It emphasizes that: (1) condonation is not a formality or automatic right; (2) courts require full disclosure including clear grounds of appeal and proper explanation for delays; (3) courts will not entertain applications lacking merit as this constitutes abuse of process; (4) the surge in unmeritorious condonation applications must be curtailed; (5) only deserving cases for non-compliance with court rules will be entertained. The judgment serves as a warning against frivolous applications that burden the judicial system without substantial grounds. It also demonstrates the high threshold required to overturn criminal convictions based on credible witness identification evidence in armed robbery cases.