Richmore Usayi v The State

The applicant was convicted on 11 December 2015 by the Regional Magistrate at Harare on two counts of rape in terms of s 65(1) of the Criminal Law (Codification & Reform) Act. He was sentenced to 15 years imprisonment on each count (total 30 years), with 5 years of count 2 running concurrently with count 1, and a further 5 years suspended, leaving an effective 20 years imprisonment. The charges arose from allegations that between June-December 2013, the applicant, a domestic worker, twice raped a 4-year-old complainant (daughter of a co-worker) at a house in Mount Pleasant, Harare. The incidents were only discovered in September 2015 when the complainant fell ill and tested HIV positive, while the applicant tested HIV negative. Approximately 5 years after conviction, the applicant applied for leave to appeal out of time and for bail pending determination of that application. The applicant appeared in person, citing inability to afford legal representation and difficulties obtaining the trial record as reasons for the delay.

• Whether the applicant's application for bail pending determination of an application for leave to appeal out of time is competent under s 123 of the Criminal Procedure & Evidence Act
• Whether the applicant should be granted leave to note an appeal out of time under rule 48 of the Supreme Court (Magistrates Court) (Criminal Appeals) Rules, SI 504/1979
• Whether the applicant's explanation for the 5-year delay in seeking to appeal was reasonable and acceptable
• Whether there were sufficient prospects of success on appeal to justify granting leave to appeal out of time
• The proper terminology and procedure for applications where a convicted person is time-barred from noting an appeal

a) The applicant's bail application filed under case No B 1856/20 was declared a nullity and struck off the roll. b) In case No CON 354/20, the applicant was granted leave to note an appeal out of time in regard to his conviction and sentence under case No R 845/15. c) The applicant was directed to note his appeal within 10 days from the date the Registrar effects personal service of the order. d) The applicant was granted a certificate to prosecute his appeal in person.

The binding legal principles established are: (1) There is no provision in law permitting a convicted person who is time-barred from noting an appeal to apply for bail pending determination of an application for leave to appeal out of time - such applications are nullities. Section 123 of the Criminal Procedure & Evidence Act only permits bail applications where an appeal has already been noted, or pending determination of an application for leave to appeal or extension of time (which contemplates appeals noted within time), or pending a review under ss 57 or 58 of the Magistrates Court Act. (2) The correct legal procedure for time-barred convicts is to first obtain leave to appeal out of time under rule 48 of SI 504/1979, then note the appeal, and only thereafter apply for bail pending the appeal. (3) Applications by time-barred convicts should be properly styled as 'applications for leave to note an appeal out of time' in accordance with rule 48, not 'applications for condonation of late noting of appeal', as no valid appeal can exist until leave is granted. (4) When determining whether to grant leave to appeal out of time, courts must apply the principle from Kuzsaba-Dabrowski: the less satisfactory the explanation for delay, the greater the prospects of success must be; conversely, the more satisfactory the explanation, the more easily delay will be condoned provided there are prospects of success. (5) When multiple counts are charged in a single indictment, prosecutors and courts must ensure that evidence is led separately for each count and each count is independently proved beyond reasonable doubt, despite the convenience of charging together. Conflation of evidence that makes it impossible to determine what proves each individual count constitutes a misdirection.

Chitapi J made several important obiter observations: (1) The court expressed concern about the practice of describing subsequent counts by reference to earlier counts (e.g., 'in the same manner as count 1'), noting the danger that adverse findings on the first count will affect the second count, and that such charging may lead to counts being dealt with together rather than as distinct offences at trial. (2) The court observed that it was unclear why part of the sentence in count 2 was ordered to run concurrently with count 1, questioning the reasoning and justification for this approach. (3) Most significantly, the court identified and commended to the executive for consideration a lacuna in the law regarding legal assistance for convicted persons wishing to appeal. The court noted that while the Constitution (ss 50, 70) and legislation (ss 191, 163A of the Criminal Procedure & Evidence Act) provide for legal representation at arrest and trial, including pro deo counsel in High Court trials, there is no explicit provision for legal assistance post-conviction despite s 70(5) of the Constitution providing a right to appeal. The court observed that appeals are more technical than trials (involving demonstration that conviction/sentence was wrong rather than leading fresh evidence) and suggested it would be a 'plausible development' for convicts to be provided access to legal representation when deciding whether to appeal. (4) The court noted that while the Legal Aid Act [Chapter 7:16] permits applications for legal aid in criminal matters and allows courts to recommend legal assistance, a convict without a pending appeal (which can only exist after filing notice and grounds of appeal) does not yet have a 'pending case' that would enable such recommendation. (5) The court strongly advised the applicant to arrange legal representation to assist in noting and prosecuting the appeal, noting his poor command of English, atrocious grammar, and ineloquently drawn grounds of appeal made clear the task was beyond his capabilities, but acknowledged the court's limited power to assist at this preliminary stage.

This judgment is significant for several reasons: (1) It clarifies the correct procedural terminology and requirements for applications where convicted persons are time-barred from noting appeals, emphasizing that the proper description is 'application for leave to note an appeal out of time' under rule 48 of SI 504/1979. (2) It definitively determines that no provision exists in law for bail pending determination of an application for leave to appeal out of time under s 123 of the Criminal Procedure & Evidence Act. (3) It identifies a legislative lacuna regarding legal representation for convicted persons seeking to appeal, with the court noting that while the Constitution and legislation provide for legal representation at trial, there is no explicit provision for legal assistance post-conviction for appeals, despite appeals being more technically complex than trials. (4) It demonstrates judicial flexibility in considering genuine challenges faced by self-represented convicts, including lack of legal knowledge, inability to afford representation, and difficulties accessing court records. (5) It emphasizes the importance of proper separation of evidence when multiple counts are charged, and the danger of conflating evidence across counts. (6) It illustrates the application of the Kuzsaba-Dabrowski principle that high prospects of success on appeal can overcome less than satisfactory explanations for delay.