The State v Shepherd Mburuma

The applicant was convicted by the Regional Court sitting at Harare on 7 November 2018 on two charges of rape as defined in section 65(1) of the Criminal Law (Codification and Reform) Act (Chapter 9:23) and attempted rape as defined in section 189 read with section 65(1) of the Criminal Law Code. The complainant was 13 years old at the time of the sexual intercourse. Medical evidence confirmed sexual intercourse had occurred. The applicant failed to exercise his right to appeal within the stipulated period of ten working days. The application for condonation was filed on 28 October 2019, approximately one year after conviction. The applicant blamed his former legal practitioner who had assured him he would appeal but relocated to South Africa without filing the appeal or communicating with the applicant. The applicant sent relatives to the offices of the Registrar of the High Court and Regional Court to enquire about the appeal, but no record was found. While waiting for relatives to raise money for another legal practitioner, the applicant learned he could apply for condonation, extension of time, and leave to prosecute the appeal in person.

• Whether condonation should be granted for failure to note an appeal timeously
• Whether the explanation for the delay was reasonable
• Whether the applicant had prospects of success on appeal
• Whether leave to prosecute an appeal in person should be granted

1. The application is granted. 2. The failure by the applicant to note an appeal against conviction and sentence in case number Harare Magistrates Court R 573/18 within the time set by the rules is condoned. 3. The applicant is granted leave to prosecute the appeal in person. 4. The applicant shall note his appeal within ten days of this order. 5. He is granted leave to prosecute appeal in person.

Where an applicant seeks condonation for failure to note an appeal timeously, the court must consider: (1) the explanation for the delay; (2) the extent of the delay; and (3) the prospects of success on appeal if condonation is granted. Where the delay is caused by the failure of a legal practitioner to file an appeal despite assurances to do so, and the accused has taken reasonable steps to follow up on the appeal and eventually bring the condonation application, this constitutes a reasonable explanation for delay. Where an application for condonation is unopposed and the averments are not controverted by the State, the court may accept those averments and grant the application. In sexual offence cases involving minors, even where lack of consent may be in doubt for purposes of a rape conviction, an accused may still be convicted of the alternative offence of unlawfully having sexual intercourse with a minor under section 70(1)(a) of the Criminal Law (Codification and Reform) Act.

The court noted that although the application did not provide specific dates and time frames, the level of detail provided in the account of efforts made to lodge the appeal was sufficient. The court also observed, without making a final determination, that the applicant's prospects of success on the rape and attempted rape charges had not been controverted by the State, suggesting that in an unopposed application context, uncontroverted assertions about prospects of success may be accepted. The judgment also implicitly suggests that the court is sympathetic to self-represented litigants in criminal matters who have been let down by their legal practitioners.

This case is significant in Zimbabwean criminal procedure as it demonstrates the court's approach to condonation applications for late filing of appeals, particularly in circumstances where an accused person's legal practitioner has failed to perform their duties. It illustrates the court's willingness to consider the interests of justice and grant condonation where the delay is reasonably explained by the failure of legal representation, even where the delay is substantial (approximately one year). The case also demonstrates the court's willingness to grant leave to prosecute appeals in person where an accused lacks legal representation. Additionally, it illustrates an important substantive criminal law principle regarding sexual offences against minors - that even if consent or lack thereof is in doubt on a rape charge, conviction may still be sustained under the alternative offence of unlawful sexual intercourse with a minor.