Levison Popi v The Trial Magistrate N. Mupeiwa N.O and Prosecutor General

The applicant was convicted on 16 December 2024 of attempted indecent assault in contravention of s 189(1) as read with s 66(1) of the Criminal Law (Codification and Reform) Act (Chapter 9:23) by the first respondent, a Regional Magistrate. On 26 March 2025, his appeal against conviction was struck off the roll for being fatally defective. The applicant filed an application for condonation of late filing of a review application on 30 May 2025, approximately 5 months after conviction. He alleged that the trial magistrate did not clearly explain his right to call a witness, Alice Nyanjowa (now deceased), who had given a statement that she was present in the room where the alleged assault occurred and did not observe anything concerning the allegations. The applicant claimed he had been advised by prison inmates that an appeal is limited to what is on record, and only raised the issue of the missing witness when he showed the statement to his lawyer after the appeal was struck off. The record showed that at trial, the applicant had been advised of his right to adduce evidence and call witnesses, had testified himself, and called two witnesses, but did not call Alice Nyanjowa despite having her statement at the commencement of trial.

• Whether the applicant provided a reasonable explanation for the delay in filing the review application
• Whether there was any irregularity in the trial proceedings relating to the applicant's right to call witnesses
• Whether the proposed review application had prospects of success
• Whether the second respondent's opposing papers were filed late and in improper form

The application for condonation of late filing of the review application was dismissed for lack of merit.

An application for condonation of late filing of a review application requires not only that the delay not be inordinate, but that the applicant provide a reasonable explanation for the delay and demonstrate that the underlying review application has prospects of success. Where an accused person has been properly advised by a trial court of the right to adduce evidence and call witnesses, and the accused chooses not to call an available witness despite having that witness's statement, there is no irregularity in the proceedings that would warrant review. An accused cannot later claim that the trial court failed to explain the right to call witnesses when the record clearly shows proper advisement occurred. The failure to call a witness is the responsibility of the accused, not the trial magistrate or prosecutor.

The court observed that in chamber applications there is generally no time limit set in the rules as to when opposing papers should be filed, as such applications are judge-driven. There is also no format or form prescribed for opposing papers and hence no requirement for a respondent to file an opposing affidavit in a specific format. The court noted that it appeared the issue of the missing witness came as an afterthought after the appeal was struck off the roll, and became a convenient avenue to pursue after the failure of the appeal.

This case provides guidance on the requirements for condonation of late filing of review applications in criminal matters in Zimbabwe. It emphasizes that an applicant must provide a reasonable explanation for delay and that the underlying application must have prospects of success. The case also clarifies procedural points regarding chamber applications, confirming that there is no prescribed time limit for filing opposing papers in chamber applications and no required format for such papers. The judgment reinforces the principle that accused persons bear responsibility for calling their own witnesses at trial and cannot later claim irregularity when they fail to call available witnesses after being properly advised of their rights.