Vincent Calvin Chikasha v The State

The applicant, aged 19 at conviction, and two co-accused were tried before the Regional Magistrate at Marondera on three counts of robbery as defined in s 126(1)(a)(b) of the Criminal Procedure and Evidence Act. The charges involved three separate incidents at Cyclone Mine, Goromonzi in July 2018 (on 6th, 15th, and 29th) where the trio allegedly used violence and a knife to induce submission and stole Honda Fit vehicles from three different complainants. The applicant and second accused were convicted on all three counts on 21 September 2018 and each sentenced to 30 years imprisonment (10 years suspended for 5 years on conditions of good behavior), making an effective 20 years. The third accused (18 years old) was acquitted on the third count, convicted on the first two counts, and sentenced to 8 years on each count (total 16 years with 8 years suspended, effective 8 years). The applicant did not immediately appeal. In September 2020, he filed a bail application (B 1479/20) which was struck off by Musakwa J on 13 October 2020 as he had not yet obtained condonation for late noting of appeal. On 28 October 2020, the applicant filed an application for condonation of late noting of appeal (CON 420/20), followed by another bail application on 9 November 2020 (B 1907/20) pending determination of the condonation application.

• Whether bail pending determination of a condonation application for late noting of appeal is competent under s 123 of the Criminal Procedure and Evidence Act
• Whether condonation should be granted for the approximate two-year delay in noting the appeal
• What factors are relevant in determining whether to grant condonation for late noting of appeal
• Whether the proposed appeal has prospects of success on conviction and sentence

The bail application (B 1907/20) was struck off the roll as incompetent. The condonation application (CON 420/20) was granted. The applicant was granted leave to note appeal out of time and extension of time within which to note the appeal. The applicant was ordered to note his appeal within 10 days of service of the order by the Registrar. Copies of the judgment were to be filed in both case numbers.

There is no competent application for bail pending determination of a condonation application for late noting of appeal. Under s 123(b) of the Criminal Procedure and Evidence Act, bail after conviction by a magistrate may only be granted: (i) pending review where the record is required to be transmitted for review; (ii) pending determination of a noted appeal; or (iii) pending determination of an application for leave to appeal. An applicant must first obtain condonation for late noting of appeal and actually note the appeal before being entitled to apply for bail pending that appeal. In condonation applications, the interests of justice is the overriding test, considering factors including length and cause of delay, prospects of success, prejudice to the other party, and effect on administration of justice. No single factor is determinative; all must be weighed holistically in the circumstances of each case. Prospects of success, while not decisive, is a weighty factor in favor of granting condonation. The court has a constitutional duty under s 44 of the Constitution and in recognition of the constitutional right of appeal to assist unrepresented indigent inmates in exercising their appeal rights, including by accepting reasonable explanations for delay arising from genuine practical difficulties in accessing stationery, legal knowledge, and transcribed records while in custody.

The court observed that the lack and shortage of stationery in prisons is a reality that may, depending on circumstances, amount to a reasonable explanation for delay in noting appeals. The court noted that the appeal process is a specialized procedure requiring competence and understanding, and without in-house counsel at prison, unrepresented convicts who intend to appeal become victims of lack of knowledge. The court commented that it becomes the duty of the judge to assist unrepresented convicts to the extent possible without turning into their legal representative, to enable appeals to be noted for hearing, potentially including appointment of counsel under the Legal Aid Act. The court observed that while finality in litigation is important and the State should not be bogged down with completed cases, prejudice to the State and administration of justice from delayed appeals is watered down if the intended appeal has prospects of success, because every agency of government has a constitutional duty under s 44 to protect, promote and fulfill rights in the Declaration of Rights, including appeal rights. The court noted that ordinarily accomplices are sentenced similarly unless there is good reason to differentiate them, and even the extent of differentiation must be justified. The court commented that the applicant's grounds of appeal against sentence were inadequately drawn but that he would have the opportunity to file properly drafted grounds if condonation was granted.

This judgment is significant for clarifying the proper procedure for post-conviction bail applications in Zimbabwe. It establishes that bail pending determination of condonation for late noting of appeal is not competent under s 123 of the Criminal Procedure and Evidence Act—an appeal must first be properly noted before bail pending appeal can be sought. The case demonstrates judicial recognition of the practical difficulties faced by unrepresented indigent inmates in exercising their constitutional right of appeal, including challenges accessing stationery, legal knowledge, and transcribed records. It affirms the court's duty to assist unrepresented convicts in bringing appeals before the court without becoming their legal representative. The judgment also emphasizes that condonation applications are considered holistically based on all relevant factors with the interests of justice as the overriding consideration, and that prospects of success (both on conviction based on constitutional fair trial rights and on sentence based on parity principles) remain a weighty factor favoring condonation even where delay is substantial.