Nyasha Ngwerume v The State

The applicant was convicted by the regional court sitting at Chitungwiza on a charge of aggravated indecent assault as defined in section 66(1)(ii) of the Criminal Law (Codification and Reform) Act [Chapter 9:23]. He was sentenced on 23 March 2018 to twenty years imprisonment of which three years were suspended. The applicant intended to appeal against both conviction and sentence. He filed a chamber application on 1 October 2018 seeking condonation of late filing of appeal and leave to appeal out of time. The State consented to the application, citing that the applicant did not have money to engage the services of a legal practitioner. The State's response did not address the merits of the appeal.

• Whether leave should be granted to note an appeal out of time
• Whether the draft notice of appeal complied with the requirements of Rule 48 of the Supreme Court (Magistrates Court) Criminal Appeals Rules 1979
• Whether a defective or nullity notice of appeal can form the basis for granting leave to appeal out of time

The application was dismissed.

An application for leave to note an appeal out of time in terms of Rule 48 of the Supreme Court (Magistrates Court) Criminal Appeals Rules 1979 must be accompanied by a draft notice of appeal that complies with the appropriate provisions of the rules. The draft notice of appeal is central to considering such applications. Where the draft notice of appeal is a nullity or lacks merit because it fails to set out grounds of appeal clearly, specifically and concisely, stating briefly how the lower court erred, the application for leave to appeal out of time must be dismissed. Leave cannot be granted to enable an applicant to file a nullity. Grounds of appeal must not consist of detailed analysis of evidence or submissions in mitigation, but must concisely identify the errors of law or fact made by the lower court.

The court observed that the State's response to the application was unhelpful, covering only half a page and failing to address the merits of the appeal. The court noted that the State's support for the application was based solely on the ground that the applicant did not have money to engage legal services, without any consideration of whether the proposed appeal had merit. The court also commented on the mischaracterization of the application as one for "condonation of late filing of a notice of appeal" when such wording does not appear in the rules, the proper characterization being an application for leave to note an appeal out of time under Rule 48.

This case establishes important procedural requirements for applications for leave to appeal out of time in criminal matters in Zimbabwe. It emphasizes the critical importance of complying with the technical requirements for drafting notices of appeal, particularly the requirement that grounds of appeal must be clear, specific, concise and state briefly how the lower court erred. The judgment clarifies that a defective draft notice of appeal that constitutes a nullity will result in the dismissal of an application for leave to appeal out of time, regardless of other factors such as consent by the State or explanations for delay. It reinforces that the merits of the proposed appeal, as reflected in the draft notice of appeal, are central to the court's consideration of whether to grant leave to appeal out of time.