Harmony Fararira v The State

The applicant was convicted and sentenced on three separate matters: (1) On 10 June 2016 under CRBGKR 92-3/16, he pleaded guilty to 4 counts of robbery and 1 count of unlawful possession of a firearm, receiving 20 years imprisonment (with partial suspensions) and 12 months for the firearm charge. (2) On the same date under CRBGKR 94/16, he pleaded guilty to attempted robbery and theft, receiving 30 months and 15 months imprisonment respectively (with partial suspensions). (3) On 15 December 2017 under CRBKDR 130/17, he was convicted after trial of robbery in aggravating circumstances and sentenced to 8 years imprisonment (2 years suspended). On 2 June 2022, almost six years after the first two convictions and over four years after the third, the applicant filed an application for leave to appeal out of time and to prosecute the appeal in person.

• Whether the applicant provided a reasonable explanation for the inordinate delay in filing his application for leave to appeal out of time
• Whether leave to appeal out of time should be granted despite the delay of approximately six years (for two matters) and four years (for one matter)
• Whether the applicant demonstrated the good faith required to obtain an indulgence from the court

The application for leave to appeal out of time and to prosecute such appeal in person was dismissed.

An applicant seeking leave to appeal out of time must provide a reasonable and truthful explanation for the delay. Where an applicant provides a false explanation for an inordinate delay and fails to demonstrate utmost good faith in seeking an indulgence from the court, the application must be dismissed. The principle of finality in litigation requires that applications for leave to appeal out of time brought several years after conviction and sentence, without adequate justification, cannot succeed.

The court observed that the applicant had been a self-actor throughout the trial proceedings, which made his claim that he believed only a legal practitioner could note an appeal particularly implausible. The court also commented that by 2020, after serving four years, the applicant had more than adequate time to have been advised by fellow inmates about his right to file an application to appeal out of time, suggesting that such advice would typically be shared much earlier in an inmate's incarceration. The court noted that many convicted inmates face challenges in obtaining records of proceedings, acknowledging this as a systemic issue, though it did not excuse the applicant's conduct in this particular case.

This case reinforces the principles governing applications for leave to appeal out of time in Zimbabwean criminal procedure. It emphasizes that: (1) applicants must provide reasonable and truthful explanations for delays in noting appeals; (2) inordinate delays (six years and four years in this case) will not be tolerated without compelling justification; (3) utmost good faith is required from litigants seeking indulgences from the court; (4) false explanations will result in dismissal of applications; and (5) the need for finality in litigation is a paramount consideration in determining whether to grant extensions of time.