Merryward Marara v The State and National Prosecuting Authority

The applicant appeared before a Regional Magistrate at Bulawayo on 4 November 2020 facing a charge of rape as defined in section 65 of the Criminal Law Codification and Reform Act (Chapter 9:23). The facts were that on 30 September 2018, the applicant, a self-proclaimed prophet, raped a nineteen-year-old complainant, Tsitsidzashe Dhliwayo, at a shrine in a bushy area in Westgate, Bulawayo. The applicant had lured the complainant to a secluded pit where he ordered her to lie down facing upwards, claiming he was exorcising evil spirits. He then had sexual intercourse with her without her consent. The complainant reported the matter to her aunt soon after the incident. The applicant denied having sexual intercourse with the complainant in his defence. The court a quo accepted the complainant's narration and convicted the applicant, sentencing him to 15 years imprisonment of which 5 years was suspended for 5 years on condition of future good conduct. The applicant then sought condonation for late noting of appeal and leave to prosecute the appeal in person. The sentence was handed down on 4 November 2020, but the application was only lodged on 25 March 2021.

• Whether condonation should be granted for the late noting of an appeal
• Whether the length of delay was reasonable
• Whether the applicant provided a reasonable explanation for the delay
• Whether there were prospects of success on appeal
• Whether the trial court misdirected itself in assessing the credibility of witnesses
• Whether the sentence imposed was appropriate and whether it should have run concurrently with another sentence

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

In applications for condonation for late noting of appeals, courts must consider: (1) the length of delay; (2) the reasonableness of the explanation for delay; and (3) the prospects of success on appeal. An inordinate delay without reasonable explanation will result in dismissal of the application. Financial constraints alone do not constitute a reasonable explanation for delay, particularly where the application itself appears to have been prepared with legal assistance. Prospects of success exist only where an appeal is free from predictable failure and not hopelessly doomed to fail - mere room for difference of opinion is insufficient. All three factors must be satisfied for condonation to be granted.

The court observed that applications for condonation are not "just there for the taking" and expressed concern about litigants using lack of financial resources as a "lame excuse" for delays. The court noted that in many cases, applications are made by convicted persons from prison and all the applicant must show is a genuine desire to lodge an appeal. The court also emphasized that rape is a serious crime that violates and traumatizes victims, and remarked on the appropriateness of substantial sentences for such offences. The court observed that there was no reason for the complainant in this case to concoct a false story of rape given her early report to her aunt.

This case reinforces the strict approach taken by Zimbabwean courts to applications for condonation for late noting of appeals. It demonstrates that applicants must provide genuine, reasonable explanations for delays and cannot simply rely on allegations of financial constraints, particularly where there is evidence of legal assistance in preparing the application itself. The case also reaffirms the test for prospects of success on appeal and the principle that appeal courts rarely interfere with trial courts' assessment of evidence and credibility of witnesses. It illustrates the courts' robust approach to sentencing in rape cases, emphasizing the seriousness of the offence and the violation and trauma suffered by victims.