S v Fichani (882 of 2022) [2022] ZWHHC 882 (22 May 2022)

1 HH 882-22 Cross Ref HC CON 301/21 HB 33-14 ONISMO MURUVI FICHANI Versus THE STATE HIGH COURT OF ZIMBABWE CHILIMBE J HARARE 22 May 2022 Chamber application for condonation for late noting of appeal Applicant in person T. Mapfuwa for respondent CHILIMBE J [ 1] On 22 May 2022, I dismissed the chamber application for condonation for late noting of appeal. Reasons were subsequently requested and I furnish same hereunder. [ 2] The applicant was convicted by this court of murder with actual intent as defined in s 47 (1) of the Criminal Law (Codification and Reform) Act [ Chapter 9:23] on 31 January 2014 at Gweru. He was sentenced to 23 years imprisonment. On 29 November 2021 he filed an application for condonation of late noting of appeal together with a draft notice of appeal against both conviction and sentence. THE BACKGROUND FACTS [ 3] On 18 October 2012 a soccer match was held at Joboringo Primary School, Chief Nemangwe, Gokwe South in the Midlands Province. After this match, the accused was involved in an altercation which led to the death of Isaac Mbofana. It is common cause that the deceased was an assistant referee (“linesman”) during the match. Applicant claimed to have been the head coach of one of the contesting teams. It is also common cause that typical of such events, various spectators (“supporters”) expressed themselves rather vehemently as goals were scored or disallowed and fouls called as the match progressed, leading to several misunderstandings. HH 882-22 Cross Ref HC CON 301/21 HB 33-14 [ 4] These misunderstandings continued after the match and degenerated into altercations. Those altercations in turn, escalated into scuffles including one leading to the unfortunate death of the deceased. Conflicting versions were tendered as to what exactly took place during such exchanges, or who was victim and aggressor. It is common cause that both the applicant and deceased were involved. The applicant claimed, as part of his defence, that the deceased and other persons associated with the opposing team were the aggressors. He also tendered as defences (a) self-defence (b) the putative defence of his brother, (c) provocation by the deceased and (c) intoxication. The court rejected applicant`s defences and found that he armed himself with a log (weighing about 5kg) and “brutally attacked the deceased by crushing his head”. THE REASONS FOR DELAY [ 5] The applicant submitted in his papers that he was precluded from filing his notice of appeal within the time prescribed by the rules because (a) as a self-actor, he was unaware of the “procedural technicalities”, (b) his pro-deo counsel promised to visit him in order to assist process the appeal but the years came and the years went and counsel did not turn up, (d) he struggled to secure the record of proceedings from the High Court`s Bulawayo registry. In fact, applicant contends that it took him “years” to obtain the said record. THE INDICATIVE GROUNDS OF APPEAL [ 6] The applicant`s draft notice of appeal contested the trial court`s findings and insisted that the proper conviction ought to have been that of culpable homicide. The applicant also argued that the sentence of 23 years imprisonment imposed by the trial court was disproportionately heavy given the 25 head of cattle delivered as compensation to the deceased`s family. THE LAW ON APPLICATIONS FOR CONDONATION OF LATE [ 7] In applications of this nature, a court is mandated to consider, as an exercise of discretion, three factors; - the length of the delay, the explanation for such and the prospects of success.1 1 See Viking Woodwork (Pvt) Ltd v Blue Bells Enterprises (Pvt) Ltd 1998 (2) ZLR 249 (S); Mashave v Zupco & Anor 2000 (1) ZLR 478 (S). HH 882-22 Cross Ref HC CON 301/21 HB 33-14 [ 8] The explanation tendered by the applicant for the delay in filing his application for condonation dwell on the handicaps generally affecting incarcerated self-acting applicants. This court is cognisant of the circumstances affecting such applicants, with CHITAPI J having observed as follows in Potifa Sawaka v The State HH 262-20, [ page 6]; - “….it must be accepted as fact that when a convict is incarcerated, his freedom to maneuver around and even communicate with the registrar and clerk of court, as the case may be, for purposes of making arrangements for preparation of the court record is very much curtailed. The convict relies on prison authorities and benefactors outside of prison, the latter whose access to the convict is governed by prison regulations. Access is not granted on an open ticket. Whilst I fully subscribe to the position that it is incumbent upon litigants who wish to bring their cases before the court to follow or comply with the relevant rules of court, I would hold that the peculiar circumstances of a convict who wishes to pursue his rights on appeal or review to the appropriate court must be considered when the judge considers an application for condonation of late noting of appeal.” 2 [ underlined for emphasis] [ 9] In the present application, the application for condonation was filed 7 years and 10 months post-conviction and sentence. The delay is unquestionably inordinate, and no doubt, the applicant`s circumstances contributed to same as per the court`s observations in Potifa Sawaka. But one may note that in that same decision, the court recognised, as a matter of first instance, that the rules of court and their prescriptions applied with equal force to all litigants. Mere incarceration did not therefore exonerate applicants from the obligations imposed by the rules of court. [ 10] Put differently, this court in Potifa Sawaka, did no more than (a) draw attention as a general precept, to the compellingly restrictive circumstances of incarcerated self-acting litigants, and (b), remind them of their obligation to still tender, plausible explanations for having failed to adhere to the rules. Accordingly, the court considered the said challenges faced by the incarcerated self-representing applicant and concluded that a delay of 20 months as condonable. 2 See also Elvis Mucheri v The State HH 120-20 per CHITAPI J on some of the challenge’s associated with self- actors prosecuting applications for condonation. HH 882-22 Cross Ref HC CON 301/21 HB 33-14 [ 11] In the present application, the period involved is 7 years and as noted, is indisputably lengthy. The applicant has almost gone through a third of his sentence. Given this delay, it would require applicant to furnish more than just a bare statement that incarceration precluded him from acting timeously. Concomitant with setting out the exact nature of challenges faced, the applicant should have stated the attempts he took to overcome them. In that regard, applicant could have produced a sheaf of letters or reminders written to the various registries in pursuit of the record. Surely, such correspondence did exist? Because if not by letter, then in what form did the “struggles” to secure the court record take place? [ 12] Many more questions arise; -did applicant not access the office of Visiting Justices during the course of those seven years? How did he eventually succeed in securing the record of proceedings? These beings’ questions which the application ought to have anticipated and addressed. Surely, it would have thus been logical for an applicant whose bosom is burdened by the challenges of incarceration to articulate all these issues fully and independently, detailing how exactly they affected him. Dates, events, personalities and other such facts would assist to bolster the sincerity of any applicant seeking to do their utmost to upset a conviction and sentence wrongly incurred. [ 13] One may perhaps argue that the applicant was failed in that regard, by his circumstances as an unrepresented and incarcerated self-actor. I must mention that the papers before me suggest otherwise. Despite having been drawn entirely in long hand by an incarcerated self- actor, the papers reflect a decently constructed and coherent application. The application points toward focussed industry which enabled applicant, despite his circumstances, to structure and articulate his arguments lucidly, complete with case authorities. On that basis, I find no reason why the process was not completed by way of fully accentuating the factors which impeded earlier attempts at applying for condonation. Such detail would have been consistent with a bona fide application. Given the period of delay concerned, the generalised grounds tendered by applicant become insufficient as a plausible explanation for the delay. [14] On this point, a court considering such applications is enjoined to take into account the interests of justice as an overarching consideration. Without in any manner seeming to suggest that justice must rush pell-mell and smother a convicted person`s right to appeal, one must take HH 882-22 Cross Ref HC CON 301/21 HB 33-14 into account the age-old desire to have finality to litigation. This position was recently articulated, as it relates to the administration of justice- as follows in Petronella Kagonye v The State HH 657-22 [ at page 8]; - “The law requires a person convicted and sentenced by a competent court to immediately start serving the sentence thereby ousting the common law principle that execution of a judgment is automatically suspended by the noting of an appeal. [unless bail pending appeal of review is granted] See s 63 of the magistrates Court Act [Chapter 7:10].” PROSPECTS OF SUCCESS [ 15] The foregoing finding regarding absence of a plausible explanation for the delay notwithstanding, I am still required to weigh the applicant`s prospects of success in the appeal against both conviction and sentence itself. The position on prospects of success is trite in our law and was summed up by this court in a recent decision -Knowledge Mashopo versus The State HH 614-22 where CHINAMORA J held thus at page 4; - “In an application for condonation for the late noting of an appeal and applicant must demonstrate that there are prospects of success. The test for prospects of success was well articulated in S v Chikumba HH-724-15. In that case the court held that the prospects of success exist where an appeal is free from predictable failure. The appeal must not be hopelessly doomed to fail. The question is therefore not whether there is room for difference of opinion vis-à-vis the impugned conviction or sentence.” [ 16] With respect to conviction, the trial court made the following findings [ see page 7 of HB 33-14]; - “Factual findings We therefore find the following as proved: (a) accused armed himself with the log i.e., Exhibit 5 (b) accused hit deceased with that log on the head. (c) accused aimed his blow at deceased’s head (d) the deceased died from the injuries inflicted by the accused (e) accused was not acting in self defence or in defence of his brother HH 882-22 Cross Ref HC CON 301/21 HB 33-14 (f) accused was never assaulted by the deceased but accused fought with Mazengenya (g) deceased was not armed and the only person who was armed with a log is the accused (h) the accused’s motive was to punish deceased for raising his flag (i) accused had taken some alcohol, but he appreciated what he was doing (j) accused fractured 4 bones situate on the front part of deceased’s head. These injuries are consistent with the state witnesses’ testimony.” [ 17] These conclusions were made on the back of positive findings of credibility of the state witnesses. The accused`s testimony on the other hand was emphatically discredited by the trial court. These factors deal significant blows to the applicant`s attempt to contest the findings of the trial court. In essence, the contest seeks to persuade the appeal court to substitute itself for the trier of fact, without specifically drawing attention to the defect justifying such interference. I was not persuaded that there are prospects of success on appeal. [ 18] In the same vein, the protest against sentence was premised on claims that a lesser verdict ought to have been returned. There was the further argument that a lesser sentence should have been imposed given the 25 head of cattle delivered on behalf of the applicant to the deceased`s family. The approach by our courts is to take such compensation by an accused convicted of murder or culpable homicide as a positive expression of contrition which mitigates the accused`s sentence. [ See S v Hlahla HMA 01-16; S v Jokwi HH 305-21; S v Muburirwa HMA 04-22]. [ 19] The trial court did not disregard this gesture but it considered same against the following aggravating factors; - [ see page 9 of HB 33-14] “Aggravation Accused has been found guilty of murder with actual intent. This is a serious offence. Human life was unnecessarily lost. Accused brutally attacked the deceased by crushing his head.” Further, the sentence imposed by the trial court has not been demonstrated as outlandish [ see S v Ndlovu 2012 (1) ZLR 393]. HH 882-22 Cross Ref HC CON 301/21 HB 33-14 [ 20] I have also taken into account the fact that the respondent in this matter conceded to the relief sought. That concession was predicated on the sole issue that applicant`s intent was affected by the alcohol he had consumed on the day in question. [ 21] Beyond making that rather terse and simple submission, the respondent did not relate to how the trial court, which comprehensively addressed the issue, could be faulted on its treatment of that aspect of applicant`s defence. On that basis, I found the concession, with respect, to have been neither well-thought out nor properly taken. DISPOSITION [ 22] It is for the aforegoing reasons that the application for condonation for the late noting of appeal was refused. CHILIMBE J ________15/12/22 National Prosecution Authority -respondent`s legal practitioners