Bekezela Tshuma v The State

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HB74/22
HCA (COND) 10/22
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BEKEZELA TSHUMA

Versus

THE STATE

IN THE HIGH COURT OF ZIMBABWE

KABASA J

BULAWAYO 9 MARCH 2022

Application for condonation

T. Tavengwa, for the applicant

B. Gundani, for the state

KABASA J:	This is a chamber application for condonation for late filing of an application for review. I dismissed the application in an ex-tempore judgment after hearing from the parties. The parties have not asked for written reasons but I decided to provide them in anticipation of such a request.

Rule 62 (4) provides that:

“Any proceedings by way of review shall be instituted within eight weeks of the termination of the suit, action or proceedings in which the irregularity or illegality complained of is alleged to have occurred.”

What is sought to be reviewed should condonation be granted are confirmation proceedings conducted on 12th January 2021 wherein the applicant’s warned and cautioned statement was confirmed by a magistrate sitting at Bulawayo Magistrates’ Court.

Eight weeks having lapsed, the applicant seeks to be condoned so as to file an application for review.

In Kombayi v Berkhout 1988 (1) ZLR 53 (SC), the Supreme Court laid out the broad principles to be followed in applications of this nature.  The court had this to say:

“The broad principles the court will follow in determining whether to condone the late filing of an appeal are the extent of the delay, the reasonableness of the explanation for the delay and the prospects of success.”

In Kodzwa v Secretary for Health and Another 1999 (1) ZLR 313 (S) the court emphasized that condonation for the non-observance of the rules of court is not a mere formality.  The court has to be satisfied that there was sufficient cause to excuse the applicant from compliance.  The court’s power to grant relief ought not to be granted simply upon mere asking, but with proper judicial discretion and upon sufficient and satisfactory grounds being shown by the applicant.  (See also Kondonani v Muvami HH-81-07; Sibanda v Ntini 2002 (1) ZLR 204 (S))

The delay in seeking condonation in casu is about a year and 2 months and the reason thereof is that the applicant was unrepresented and was not aware of the procedures available to him.  The extent of the delay and the reason thereof are inter-linked.  The reason for such delay may satisfactorily address the extent of such delay.  In casu, I am inclined to hold that whilst a year and 2 months may be considered as inordinate, the reason proffered cannot be ignored.  I am therefore persuaded to find in applicant’s favour on these two factors.

Turning to the prospects of success, the applicant gave a chronology of how he was arrested, had a warned and cautioned statement recorded and finally how he was taken to court where the warned and cautioned statement was confirmed.  He argues that he preferred to speak in Tonga and stated as such to the magistrate.  He was however advised that a Tonga interpreter could not be availed and was asked if he could try and follow the proceedings in Ndebele.  Although he stated that he would have great difficulties in understanding or articulating himself in Ndebele, the court proceeded nevertheless.  He therefore did not fully understand most of the questions.

In the same founding affidavit, the applicant went at length in describing how he was not free when he gave the statement and that it was not given freely and voluntarily.  At confirmation he was also threatened with dire consequences if he raised any issues which would indicate against the confirmation of the statement.  The presence of police officers in the court room reminded him of what he had gone through earlier and so he complied with the instructions he had been given.

In his submissions Mr Tavengwa for the applicant, argued that the confirmation proceedings were not proper due to the language which was used.  The issues of whether he gave the statement freely and voluntarily were not what the review application to be filed upon the granting of condonation was premised on.  The issue was the failure to be allowed to use a language of his choice and consequently the failure to understand the confirmation proceedings.

In opposing the application, Mr Gundani for the respondent submitted that the Criminal Procedure and Evidence Act, Chapter 9:07 provides for the procedure to be followed when challenging a confirmed warned and cautioned statement. Such challenge is available at trial and the purported review application applicant seeks to file is therefore misplaced.

I am persuaded by this argument.  The confirmation proceedings were filed as part of the applicant’s application. A reading of these proceedings reflects a question and answer scenario which included questions as to whether the applicant understood what the court was saying and what the proceedings were about.  On the face of it therefore the confirmation proceedings as provided for in s113 of the Criminal Procedure and Evidence Act complied with the law.  The statement was thereafter confirmed.

Section 256 (2) of the Act provides that;

“(2)	A confession or statement confirmed in terms of subsection (3) of section one hundred and thirteen shall be received in evidence before any court upon its mere production by the prosecutor without further proof.

Provided that the confession or statement shall not be used as evidence against the accused if he proves that the statement was not made by him or was not made freely and voluntarily without his having been unduly influenced thereto, and if after the accused has presented his defence to the indictment, summons or charge, the prosecutor considers it necessary to advance further evidence in relation to the making of such confession or statement, he may re-open his case for that purpose.”

The Act therefore provides a procedure for challenging a confirmed statement.  Once confirmed however the prosecutor produces it into evidence without proof. This legislative provision is clear and it is what the prosecution relies on in producing a confirmed warned and cautioned statement at trial.

Mr Tavengwa’s argument is that it is not the admissibility of the statement that the review seeks to challenge but the confirmation proceedings. Should the review succeed the desired result is that such statement be regarded as unconfirmed and treated as such, with the state being at liberty to have fresh confirmation proceedings should it be so inclined.

I must say this is a novel and alien procedure which finds no favor with me. Mr. Gundani correctly described it as sui generis.

The legislature in its wisdom has provided a procedure wherein a confirmed warned and cautioned statement can be challenged.  The challenge will obviously be meant to result in the court discarding such statement.  This is why the law says once the accused successfully mounts a challenge, such statement shall not be used as evidence.  It would have been admitted without proof but it will however not be used in evidence.

The review application sought to be filed seeks to duplicate that which is already provided for in section 256 (2).  By seeking to have the statement shorn of the “confirmed” status, the applicant seeks to then have the state establish its admissibility should it still seek to produce the statement, thereby circumventing the express provision that a confirmed warned and cautioned statement shall be produced and received in evidence before any court upon its mere production by the prosecutor without further proof.

Granted, the mere fact that the legislature may not have expressly provided for a review mechanism does not itself oust the court’s power of review where a case has been made for such.

I have not been able to find any authorities which speak to the issue raised in this application. The dearth of such authorities could very well be because of the alien or novel nature of what the applicant seeks to do.

I am however of the considered view that the review process the applicant seeks to mount is misplaced. I would venture to say the court which will adjudicate over the applicant’s trial is better equipped to hear the applicant’s challenge, allow the state the opportunity to adduce whatever evidence it deems necessary to controvert the challenge and make an informed decision whether to use such statement as evidence or discard it. To allow confirmation proceedings to be challenged by way of review is tantamount to opening a pandora’s box and is totally undesirable. The procedure available to the applicant in terms of the Criminal Procedure and Evidence Act suffices.

I consequently hold that there are no prospects of success whatsoever and condonation ought not to be granted for the sake of it.

It is for the foregoing reasons that the application for condonation for late filing of an application for review was dismissed.

Mutuso, Taruvinga & Mhiribidi, applicant’s legal practitioners

National Prosecuting Authority, respondent’s legal practitioners