Garikayi Mhepo v The State

The Applicant was convicted of Stock Theft and sentenced to an effective 27 years imprisonment. The sentence was stamped on 9 December 2019 and 18 June 2020. In terms of rule 101(2) of S.I. 202/21, the Applicant was required to note an appeal within ten days of the passing of sentence. However, the Applicant only filed an application for condonation of late noting of appeal on 9 March 2022. The Applicant explained that the delay was due to lacking support in securing the record of proceedings and that after obtaining the record, he engaged a bogus lawyer. The Applicant also sought leave to prosecute the appeal in person. The theft involved a total of eight (8) cattle.

• Whether condonation should be granted for the late noting of an appeal
• Whether there were reasonable prospects of success on appeal
• Whether the sentencing court properly exercised its discretion in imposing consecutive rather than concurrent sentences
• Whether the mandatory minimum sentence for stock theft was appropriately applied
• Whether leave should be granted to prosecute the appeal in person

The application for condonation of late noting of appeal was dismissed. The application for leave to prosecute the appeal in person also failed as a consequence.

When considering an application for condonation of late noting of an appeal, the court must consider not only the explanation for the delay and bona fides of the application, but also the prospects of success on appeal. Where an offence carries a mandatory minimum sentence under Zimbabwean law, the sentencing court has limited discretion, and section 114(4)(a) prohibits ordering that the operation of the whole or any part of such sentence be suspended. Ordering mandatory minimum sentences to run concurrently in circumstances where multiple counts are involved may effectively amount to a prohibited suspension of part of the mandatory penalty and would be against the spirit of section 114(4)(a). The marginal benefit obtained by an offender from crimes cannot be a ground for interfering with a prescribed mandatory sentence.

The court observed that the sentence of 27 years for stealing eight cattle was actually lenient, having regard to the number of cattle involved. The court cited with approval the principles from State v Damba 2004 (1) ZLR 296, where Makarau J (as she then was) stated that where multiple counts are similar in nature and not merely kindred, and are closely related in terms of time, the sentencing court has an option to either take each count separately or to take all counts as one, but the resultant sentence should not distort the gravity of each conviction. The court noted that stock theft is viewed so seriously by the legislature that a mandatory minimum sentence is provided for.

This case illustrates the Zimbabwean courts' strict approach to applications for condonation of late noting of appeals in criminal matters, particularly where mandatory minimum sentences are involved. It demonstrates that even where an explanation for delay may be acceptable, condonation will not be granted where there are no reasonable prospects of success on appeal. The case also reinforces the legislature's serious view of stock theft and the limited discretion courts have in relation to mandatory minimum sentences, particularly regarding the prohibition on ordering such sentences to run concurrently in a manner that would effectively reduce the prescribed penalty. It confirms that ordering concurrent sentences for multiple counts of offences carrying mandatory minimum sentences may be contrary to the spirit of section 114(4)(a) which prohibits suspension of any part of such sentences.