Makhosiwonke Ncube v The State

The applicant was convicted along with three accomplices before a Regional Magistrate of contravening section 126 of the Criminal Law Codification and Reform Act Chapter 9:23 (robbery). On 13 March 2018, the applicant and accomplices went to house No. 115 Mahatshula South Bulawayo, pretended to be police officers, produced a firearm and threatened to shoot the complainant Sipho Nobulelo Mowa and her family. They ransacked the house and stole various items including a solar battery, HP Laptop, Samsung S7 cellphone, welding machine, cash (US$600 and $800 bond notes) and a passport. On 18 March 2018, detectives arrested the three accomplices in possession of a 9mm pistol with ammunition. The applicant was incriminated by his accomplices. All four pleaded guilty and were each sentenced to 10 years imprisonment with 2 years suspended on 20 March 2018. Almost a year later, on 20 February 2019, the applicant filed an application seeking condonation for late noting of appeal against conviction and sentence.

• Whether condonation should be granted for late noting of appeal based on: (a) the extent of the delay; (b) the reasonableness of the explanation for the delay; (c) the applicant's prospects of success on appeal
• Whether the court a quo complied with section 271(2)(b) of the Criminal Procedure and Evidence Act in accepting the guilty plea
• Whether the court a quo properly explained the charge and essential elements of the offence to the unrepresented accused
• Whether the applicant's guilty plea was unequivocal and genuine
• Whether the sentence imposed was manifestly excessive so as to induce a sense of shock

The application for condonation for late noting of appeal was dismissed in its entirety.

Condonation for late noting of appeal requires consideration of three interrelated factors: extent of delay, reasonableness of explanation, and prospects of success on appeal. These factors must be weighed together and are not individually decisive. Where an applicant shows no reasonable prospects of success on appeal, condonation will be refused even if the delay might be explained. A court accepting a guilty plea under section 271(2)(b) of the Criminal Procedure and Evidence Act must: (1) explain the charge and essential elements to the accused; (2) inquire whether the accused understands the charge and essential elements; (3) determine whether the guilty plea is an admission of the elements and acts/omissions; and (4) record all of this. Where the record demonstrates full compliance with these requirements and shows clear, unequivocal admissions by an accused person, the guilty plea is properly entered. An appellate court will only interfere with a sentence if it is manifestly excessive so as to induce a sense of shock or is vitiated by an irregularity.

The court observed that while poverty and inability to afford legal fees may be a plausible explanation for delay in light of the country's economic situation, this alone is insufficient where prospects of success are hopeless. The court quoted with approval the principle from S v Madondo that robbery 'usually involves premeditation, criminal resolve and purpose. It requires brazen execution. It is an attack on a human victim with attendant disregard of that person's regard to personal security...It is usually a terrifying and degrading experience, the sentence of the court must reflect the abhorrence with which the courts view this form of criminal behaviour.' The court also noted that the provisions of section 271(2) extend to what an accused says in mitigation, and if at that stage something creates doubt about the plea, the court should alter it to not guilty. The court emphasized that an accused's claim that he did not benefit from the proceeds of a robbery committed in common purpose is 'neither here nor there' when he was present at the scene and drove the getaway car.

This case demonstrates the strict approach Zimbabwean courts take to condonation applications for late noting of appeals, particularly where prospects of success are absent. It reinforces the importance of compliance with section 271(2)(b) of the Criminal Procedure and Evidence Act when accepting guilty pleas, and confirms that proper recording of proceedings is essential. The case also affirms the principle that appellate courts will not interfere with sentences unless they are manifestly excessive or vitiated by irregularity, and that armed robbery attracts severe sentences due to its serious and terrifying nature, even where mitigating factors exist.