Munyaradzi Nhanhanga and Freedom Mandundu v The State

The applicants were convicted by a magistrate at Victoria Falls on 5 February 2015 of contravening section 82(1) of SI 362/1990 read with section 128(b) of the Parks and Wildlife Act (Chapter 20:14) for possession of raw ivory. They were sentenced to the mandatory 9 years imprisonment. On 27 January 2015, police received information that the applicants and two others were in possession of an elephant tusk intending to sell it. Police ambushed the applicants at Kingdom Hotel car park, where they recovered an elephant tusk weighing 9.4 kg valued at US$2,335 and a digital scale from the boot of a Sunny motor vehicle driven by the applicants. The applicants filed a notice of appeal on 18 March 2015, but the appeal was dismissed for want of prosecution when their legal practitioner (Messrs Marondedze, Mukuku and Partners) failed to appear on the set down date of 27 March 2017. The applicants became aware of the dismissal on 23 November 2017 and applied for reinstatement of the appeal.

• Whether the applicants advanced a reasonable explanation for the dismissal of their appeal for want of prosecution
• Whether the applicants' appeal had prospects of success
• Whether the trial magistrate erred in rejecting the defence that the applicants were waiting to surrender the ivory to National Parks personnel
• Whether the trial magistrate misdirected himself in restricting special circumstances to only those peculiar to the commission of the offence
• Whether the mandatory sentence was properly imposed

The application for reinstatement of the appeal was dismissed.

An applicant seeking reinstatement of an appeal that was dismissed for want of prosecution must satisfy two requirements: (1) advance a reasonable and credible explanation for the dismissal; and (2) demonstrate prospects of success on appeal. A litigant who elects to be represented by a legal practitioner gives that representative full mandate and cannot escape the consequences of the legal practitioner's failure to attend court when properly served with notice of set down. Condonation and reinstatement of appeals are not mere formalities - the onus is on the applicant to satisfy the court that there is sufficient cause for excusing non-compliance with procedural requirements.

The court expressed concern about the increasing number of applications for condonation and reinstatement of appeals brought before the court due to legal practitioners' failure to attend court or comply with prescribed time limits. Makonese J stated that such conduct by legal practitioners is "clearly unethical and affects the smooth administration of justice." The court emphasized there appears to be a concerning tendency among legal practitioners to take the view that dismissed appeals will be reinstated "on the mere asking," which is incorrect. The court also observed that the applicants' defence was "absurd" and that no reasonable court would have accepted it, noting that the application appeared to be an abuse of court process.

This case reinforces the principle that applications for reinstatement of appeals are not a mere formality in Zimbabwean law. It establishes that: (1) litigants cannot hide behind their legal practitioners' failures to comply with procedural requirements; (2) both a credible explanation for non-compliance and prospects of success must be demonstrated; (3) courts will not condone repeated failures by legal practitioners to attend court on set down dates as this affects the administration of justice; and (4) the approach in South African jurisprudence regarding condonation applications (citing Saloojee v Minister of Community Development) is applicable. The case also demonstrates the courts' strict approach to wildlife protection offences and mandatory sentencing under the Parks and Wildlife Act.